THIS BOND IS SUBJECT TO TRANSFER RESTRICTIONS. EXCEPT AS OTHERWISE PROVIDED IN
THE INDENTURE, NO TRANSFER WILL BE MADE UNLESS THE ISSUER AND THE TRUSTEE
RECEIVE FROM THE TRANSFEREE AN INVESTMENT LETTER IN THE FORM REQUIRED BY THE
INDENTURE, SETTING FORTH THE REPRESENTATIONS AND CERTAIN FINANCIAL
QUALIFICATIONS OF THE TRANSFEREE.
THIS BOND IS UNRATED AND NOT SECURED BY A CREDIT FACILITY (AS DEFINED IN THE
INDENTURE). BY THE PURCHASE AND ACCEPTANCE OF THIS BOND, THE OWNER ACKNOWLEDGES
AND AGREES THAT THIS BOND CANNOT AND WILL NOT BE OFFERED, SOLD, ASSIGNED,
PLEDGED OR OTHERWISE TRANSFERRED, UNLESS ONE OF THE TWO FOLLOWING CONDITIONS
EXISTS: (1) THIS BOND IS RATED IN ONE OF THE THREE HIGHEST RATING CATEGORIES OF
XXXXX'X AND/OR STANDARD AND POOR'S; OR (2) EACH OF THE FOLLOWING EXISTS OR HAS
OCCURRED: (A) SAID XXXX IS OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO A
PERSON OR ENTITY WHO IS A "QUALIFIED INSTITUTIONAL BUYER," AS THAT TERM IS
DEFINED IN SECURITIES AND EXCHANGE COMMISSION RULE 144A, OR TO A FINANCIAL
INSTITUTION, AND (B) THE TRUSTEE RECEIVES FROM THE PURCHASER (WITH COPY TO THE
SELLER AND THE ISSUER) AN INVESTMENT LETTER IN THE FORM ATTACHED TO THE
INDENTURE. THIS BOND SHALL BE SOLD ONLY IN DENOMINATIONS OF AT LEAST $100,000.
UNITED STATES OF AMERICA
STATE OF TEXAS
$4,900,000
Xxxxxx County Housing Finance Corporation
Multifamily Mortgage Revenue Bonds
1997 Series
(Lexington Trails Apartments)
Number: R-2
Dated Date: May 7, 1997
Maturity Date: May 1, 2022
Registered Owner: American Tax Exempt Bond Trust
Principal Amount: $4,900,000
Xxxxxx County Housing Finance Corporation (the "Issuer"), a public
nonprofit corporation duly created, organized and existing under the laws of the
State of Texas (the "State"), created and existing under and by virtue of the
laws of the State, hereby acknowledges itself indebted and for value received
promises to pay to the registered Owner hereof stated above, or registered
assigns, at the maturity date stated above, but only from the sources and as
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hereinafter provided, upon presentation and surrender of this Bond at the
principal office of Texas Commerce Bank National Association in the City of
Dallas, Texas or its successor as Trustee, under the Indenture (described
below), the principal amount stated above, and to pay interest on said principal
amount, from and including the dated date hereof until the principal amount
shall have been paid in accordance with the terms of this Bond and the
Indenture, as and when set forth below, but only from the sources and as
hereinafter provided, by wire transfer if there be one Owner of all of the Bonds
or otherwise by check or draft mailed to the record Owners of Bonds as the same
appear upon the books of registry to be maintained by the Trustee, as Registrar.
This Bond is one of a series of bonds (the "Bonds") issued pursuant to,
and is subject to, Xxxxxx County Housing Finance Corporations Act, constituting
Chapter 394, Texas Local Governmental Code Annotated, as amended (the "Act"),
and pursuant to a Trust Indenture, dated as of May 1, 1997 (the "Indenture"), by
and between the Issuer and the Trustee and resolutions duly adopted by the
governing body of the Issuer. Reference is made to the Indenture and the Act for
a full statement of their respective terms. Capitalized terms used herein and
not otherwise defined herein have the respective meanings accorded such terms in
the Indenture, which are hereby incorporated herein by reference. The Bonds
issued under the Indenture are expressly limited to $4,900,000 principal amount
at any time Outstanding and are all of like tenor, except as to numbers and
denominations, and are issued for the purposes of funding a Loan for the
acquisition and renovation of a multifamily residential development.
THE BONDS SHALL BE LIMITED OBLIGATIONS OF THE ISSUER PAYABLE SOLELY
FROM THE TRUST ESTATE. THE BONDS SHALL CONSTITUTE A VALID CLAIM OF THE
RESPECTIVE HOLDERS THEREOF AGAINST THE TRUST ESTATE, WHICH IS PLEDGED TO SECURE
THE PAYMENT OF THE PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THE BONDS, AND
WHICH SHALL BE UTILIZED FOR NO OTHER PURPOSE, EXCEPT AS EXPRESSLY AUTHORIZED IN
THIS INDENTURE. THE BONDS DO NOT CONSTITUTE, WITHIN THE MEANING OF ANY STATUTORY
OR CONSTITUTIONAL PROVISION, AN INDEBTEDNESS, AN OBLIGATION OR A LOAN OF CREDIT
OF THE STATE, THE COUNTY, OR ANY OTHER MUNICIPALITY, COUNTY OR OTHER MUNICIPAL
OR POLITICAL CORPORATION OR SUBDIVISION OF THE STATE. THE BONDS DO NOT CREATE A
MORAL OBLIGATION ON THE PART OF THE STATE, THE COUNTY OR ANY OTHER MUNICIPALITY,
COUNTY OR OTHER MUNICIPAL OR POLITICAL CORPORATION OR SUBDIVISION OF THE STATE
AND EACH OF SUCH ENTITIES IS PROHIBITED BY THE ACT FROM MAKING ANY PAYMENTS WITH
RESPECT TO THE BONDS. THE ISSUER HAS NO TAXING POWER.
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Interest on the Bonds.
(a) General. The Bonds (including this Bond) shall bear interest as
provided below.
(b) Interest during Initial Rate Period. Until and through the
initial Conversion Date, the Bonds shall bear interest during each Interest
Accrual Period calculated and payable at a rate equal to 9% per annum payable on
each payment date specified in paragraph (d)(1) below. Such interest shall be
calculated on the basis of a year of 360 days and twelve 30-day months.
(c) Interest During Reset Rate Period. From and after the Initial
Remarketing Date, if all of the Bonds have been remarketed in accordance with
the Indenture, the Bonds shall bear interest at a rate determined as provided in
the Indenture.
(d) Interest Payment Date. (1) prior to the Initial Remarketing Date,
interest shall be payable on the tenth day of each month, commencing on June 10,
1997, and in addition to those dates the last day of the Initial Rate Period;
and (2) after the Initial Remarketing Date, (a) with respect to the payment of
interest during a Reset Rate Period, interest shall be payable on each May 1 and
November 1, or (b) with respect to the payment of interest during an Adjustable
Rate Period, interest shall be payable on the first Business day of each month,
commencing on the first such date which is at least thirty (30) days after the
commencement of such Adjustable Rate Period.
Notwithstanding anything elsewhere contained in this Bond but subject
to Section 7.11 of the Indenture, (a) total interest on this Bond, cumulative
from the original date of issuance of the Bond, shall not exceed the sum of 12%
per annum, simple and noncompounded for each year from such date of issuance to
the date of calculation (calculated on the basis of a year of 365 days, actual
number of days elapsed); and (b) if the rate at which this Bond bears interest
shall at any time be deemed to be in excess of the maximum rate permitted by
law, then the Bond shall instead bear interest at the maximum rate permitted by
such law. Any excess payment of interest shall be deemed to be a credit against
the unpaid principal amount of this Bond.
The foregoing interest provisions are a summary of those contained in
the Indenture, and reference is hereby made to the Indenture for a full
statement of their terms.
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Demand Purchase Option. (a) During any Adjustable Rate Period, each
Owner shall have the option to require the purchase of the Bonds such Owner
holds in the manner set forth in this Section. To exercise such option the Owner
shall:
(i) deliver to the Tender Agent a purchase notice (a "Purchase
Notice") in written form stating (A) the principal amount of Bonds to be
purchased, and (B) the date on which such Owner desires such Bonds to be
purchased, which shall be a Business Day not prior to the seventh day next
succeeding the date of delivery of such notice to the Tender Agent; and
(ii) deliver to the Tender Agent, not later than 10:00 a.m., New York,
New York time on the Purchase Date, the Bonds to be purchased pursuant to such
Purchase Notice, with an appropriate endorsement for transfer or a blank bond
power, and, in the case of any Bonds to be purchased prior to an Interest
Payment Date and after the Regular Record Date with respect to such Interest
Payment Date, a nonrecourse due-bill check for all unpaid interest to accrue on
such Bond to such Interest Payment Date, payable to bearer, in form satisfactory
to the Tender Agent, for interest due on such Interest Payment Date.
Deliveries of Purchase Notices.
(a) Bonds and due-bill checks to the Tender Agent shall be made to
the Tender Agent at the office of the Tender Agent in New York, New York, or to
such other address in New York, New York as the Tender Agent may designate.
Immediately upon receipt of a Purchase Notice, the Tender Agent shall give
notice to the Borrower, the Remarketing Agent and the Credit Facility Provider,
if any, which notice shall be given by telephone, telecopy, telegraph or other
electronic means, promptly confirmed in writing, of the principal amount of
Bonds to be purchased pursuant to such Purchase Notice and the date of purchase
specified therein. In no event shall the Tender Agent be required to purchase a
portion of any Bond.
(b) In the event that the Tender Agent receives a Purchase Notice
following the issuance by the Trustee of notice given under the Indenture of the
establishment of a Reset Rate Conversion Date, the Tender Agent shall provide
copies of such notice from the Trustee to the Remarketing Agent, who shall
furnish a copy of such notice to each Person to whom the Remarketing Agent
attempts to sell such Bonds pursuant to the Remarketing Agreement.
(c) A Purchase Notice shall be irrevocable and effective upon receipt
by the Tender Agent. Any Bond as to which a Purchase Notice has been delivered
pursuant to Section 5.10(a) of the Indenture must be delivered to the Tender
Agent as provided in Section 5.10(a) of the Indenture, and any Bonds not so
delivered for which there has been deposited irrevocably in trust with the
Tender Agent an amount of money sufficient to pay the purchase
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price thereof on the date of purchase shall be deemed to be Undelivered Bonds
hereunder and shall be deemed to have been purchased on the Purchase Date at the
Purchase Price. IN THE EVENT AN OWNER OF BONDS FAILS TO DELIVER ITS BONDS AS
REQUIRED FOLLOWING SUBMISSION OF A PURCHASE NOTICE, SAID OWNER SHALL NOT BE
ENTITLED TO PAYMENT (INCLUDING ANY INTEREST TO ACCRUE ON OR SUBSEQUENT TO THE
DATE DESIGNATED FOR PURCHASE IN THE APPLICABLE NOTICE) OTHER THAN THE PURCHASE
PRICE FOR SUCH UNDELIVERED BONDS, AND ANY UNDELIVERED BONDS SHALL NO LONGER BE
ENTITLED TO THE BENEFITS OF THIS INDENTURE, EXCEPT FOR THE PAYMENT OF THE
PURCHASE PRICE THEREFOR UPON PRESENTATION OF SUCH BONDS.
(d) Notwithstanding the foregoing provisions, in the event that any
Bond as to which the Owner thereof has submitted a Purchase Notice is remarketed
to such Owner pursuant to the Remarketing Agreement, the Remarketing Agent shall
so notify the Trustee and the Tender Agent, and such Owner need not deliver such
Bond to the Tender Agent as required under Section 5.10(a)(ii) of the Indenture,
although the purchase price with respect to such Bond shall be deemed to have
been paid, and such Bond shall be deemed to have been delivered to the Tender
Agent, redelivered to such Owner and remarketed for purposes of the Indenture.
Limited Recourse. Pursuant to a Loan Agreement dated as of May 1,
1997, and a Promissory Note dated May 7, 1997 (the "Note"), Lexington
Trails-American Housing Foundation, Inc., a Texas nonprofit corporation (the
"Borrower"), has agreed to make payments to the Issuer in amounts equal to
amounts of principal of and premium, if any, and interest on the Bonds. THE
BONDS AND THE PREMIUM, IF ANY, AND THE INTEREST THEREON ARE LIMITED OBLIGATIONS
OF THE ISSUER. THE PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THE BONDS ARE
PAYABLE SOLELY FROM THE PAYMENTS ON THE LOAN AND FROM ANY OTHER MONEYS
CONSTITUTING A PART OF THE TRUST ESTATE UNDER THE INDENTURE.
Transfer. This Bond is transferable by the registered Owner hereof in
person or by such Owner's attorney duly authorized in writing at the office of
the Trustee as Registrar, but only in the manner, subject to the limitations and
upon payment of the charges provided in the Indenture, and upon surrender and
cancellation of this Bond. Upon such transfer a new registered Bond or Bonds, of
any authorized denomination or denominations, of the same maturity and for the
same aggregate principal amount will be issued to the transferee in exchange
herefor.
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During such time as a Bond is not rated by a Rating Agency in one of
the three highest rating categories (without regard to numerical or other
modifiers), (x) such Bond may only be transferred (i) by an assignment to a bank
or other financial institution issuing a letter of credit or like instrument in
connection with the Bonds; or (ii) to one or more Institutional Investors if, in
each instance, the Issuer and the Trustee receive from the transferee its
agreement to the transfer restrictions set forth in this paragraph in connection
with subsequent transfers of the Bond and (y) any legal or beneficial interest
in such Bond may only be transferred upon prior written notice to the Borrower.
The Bonds are issuable as fully registered Bonds in Authorized
Denominations as provided in the Indenture.
Redemption of Bonds. The Bonds are subject to redemption by the Issuer
prior to maturity as follows:
Mandatory Redemption. The Bonds shall be subject to mandatory
redemption, at a price equal to the principal amount of the Bonds being
redeemed, together with accrued interest to the date of redemption and shall be
redeemed, prior to maturity as follows:
(a) in whole or in part on the first Interest Payment Date, or if
after the Conversion Date, on the next Business Day for which adequate notice
can be given in accordance with the Indenture, after and to the extent that
Insurance Proceeds or a Condemnation Award in connection with the Project are
deposited in the Revenue Fund (i) if the conditions of the Indenture have not
been met for a transfer of such funds to the Replacement and Capital Cost Fund,
upon a determination in accordance with the Indenture that such funds are not to
be used to repair or restore the Project, or (ii) upon transfer of such funds
immediately after the Project Completion Date in accordance with the Indenture;
or
(b) in whole upon any Remarketing Date if the conditions to
remarketing set forth in the Indenture hereof are not satisfied, or if the
Remarketing Agent does not successfully remarket all Bonds tendered or deemed
tendered on such Remarketing Date, or if the full purchase price thereof is not
paid or available for payment to the tendering Owners according to the Indenture
hereof, or if all interest and principal payable on the Bonds up to and
including the Remarketing Date has not been fully paid; or
(c) in whole on the next ensuing Interest Payment Date not less than
45 days after the date of any Sale of the Project but only if the Sale of the
Project occurs on or before the initial Conversion Date and if the Owners of all
of the Outstanding Bonds elect redemption
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by giving not less than thirty (30) days prior notice to the Trustee, the Issuer
and the Borrower of their election of redemption; or
(d) during any period when the Bonds are not rated by a Rating Agency
in one of the three highest rating categories, in whole upon a Determination of
Taxability, on the date specified by any Owner electing redemption in a written
notice delivered to the Borrower, the Issuer and the Trustee at least five (5)
Business Days prior to such date; or
(e) if the Bonds are not purchased in accordance with the Indenture
from funds made available in accordance with the Indenture, in whole on any
specified Interest Payment Date on or after May 1, 2007 if the Owners of all of
the Bonds elect redemption by giving not less than six (6) months' prior written
notice to the Trustee and the Borrower, which notice shall specify the Interest
Payment Date on which the Bonds are to be redeemed; or
(f) in whole in the event a Credit Facility is then in effect, on the
date specified by the Credit Facility Provider which shall be within sixty (60)
days of receipt by the Trustee of written notice from the Credit Facility
Provider advising of the occurrence of an event of default under the
Reimbursement Agreement and directing the redemption of the Bonds.
Optional Redemption. On or after May 1, 2002, the Bonds shall be
subject to redemption prior to maturity in whole, at the direction of the
Borrower given not less than thirty five (35) days in advance, on any Bond
Payment Date, at the redemption prices set forth below, expressed as percentages
of the principal amount of the Bonds to be redeemed together with accrued
interest to the redemption date
Period in Which Redeemed
(from May 1 of first-listed year to day
preceding May 1 in second-listed year) Redemption Price
------------------------------------- ----------------
2002-2003 104%
2003-2004 103%
2004-2005 102%
2005-2006 101%
2006 and at all times thereafter 100%
Remarketing in Lieu of Redemption. Upon either (i) an election by the
Owners of a redemption in whole of the Bonds pursuant to a Mandatory Redemption
in accordance with (c), (d) or (e) above, or (ii) an election by the Borrower of
a redemption in whole of the Bonds pursuant to an Optional Redemption, the Bonds
shall be redeemed on the date specified in the
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notice to the Borrower, the Issuer and the Trustee from the Owners described in
(c), (d) or (e) above, or the Interest Payment Date selected by the Borrower in
connection with an Optional Redemption, unless the Borrower elects to remarket
the Bonds in lieu of redemption, which election shall be evidenced by the
delivery of written notice thereof to the Issuer and the Trustee at least five
days prior to the date on which the Bonds would otherwise be redeemed. The
purchase price of Bonds so remarketed in lieu of redemption shall be the
principal amount thereof, premium, if any, and all accrued and unpaid interest
and shall be payable on the date on which the Bonds would otherwise have been
redeemed.
Notice of Redemption. (a) Notice of Redemption shall be given by the
Trustee (x) by telephone, telegram or other electronic means, promptly confirmed
in writing, not less than thirty Business Days prior to the date fixed for
redemption of the Bonds if the redemption is to occur on or before the initial
Conversion Date and (y) in writing by mail not less than thirty days prior to
the date fixed for redemption if the redemption is to occur after the initial
Conversion Date.
(b) Notice of Redemption shall be given to the Owners of all Bonds to
be redeemed at their addresses appearing on the books of registry (except that
(i) an Owner opting for redemption pursuant to (c), (d) or (e) above shall be
deemed to have received Notice of Redemption, and (ii) an Owner which shall not
have notified the Registrar of its telephone, telex, telecopier or other number
for electronic notice shall only be entitled to notice in writing). After the
initial Conversion Date, receipt of such Notice of Redemption shall not be a
condition precedent to such redemption, and failure so to notify any of such
registered Owners shall not affect the validity of the proceedings for the
redemption of the Bonds.
(c) Any notice of optional redemption of Bonds given pursuant to the
Indenture may state that it is conditional upon receipt by the Trustee of moneys
sufficient to pay the redemption price of such Bonds or upon the satisfaction of
any other condition, or that it may be rescinded upon the occurrence of any
other event, and any conditional notice so given may be rescinded at any time
before payment of such redemption price if any such condition so specified is
not satisfied or if any such other event occurs. Notice of such rescission shall
be given by the Trustee to affected Owners as promptly as practicable upon the
failure of such condition or the occurrence of such other event.
(d) Notice of Redemption having been given as provided above and all
conditions precedent, if any, specified in such notice having been satisfied,
the Bonds or portions thereof so to be redeemed shall become due and payable on
the date fixed for redemption at the redemption price specified therein plus any
accrued interest to, but not including, the redemption date, and upon
presentation and surrender thereof at the place specified in such
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Notice, such Bonds or portions thereof shall be paid at the redemption price,
plus any accrued interest to, but not including, the redemption date. On and
after the redemption date (unless the Issuer shall default in the payment of the
redemption price and accrued interest), (i) such Bonds shall cease to bear
interest, and (ii) such Bonds shall no longer be considered as Outstanding under
the Indenture.
Selection of Bonds To Be Redeemed. (a) If less than all the Bonds are
to be redeemed, the particular Bonds or portions of Bonds to be redeemed shall
be selected by the Trustee, (i) if on or before the Conversion Date, in such
manner as the Trustee in its discretion may deem fair and appropriate so that
Bonds are redeemed, as nearly as practicable, from each Owner, if there is more
than one Owner, on a pro rata basis according to the principal amount of Bonds
represented by each Bond Outstanding, and (ii) if after the initial Conversion
Date, by lot in such manner as the Trustee in its discretion may deem fair and
appropriate.
Enforcement. Only the Acting Party shall have the right to enforce the
provisions of this Bond or the Indenture or to institute any action to enforce
the covenants herein or therein, or to take any action with respect to any Event
of Default under the Indenture, or to institute, appear in or defend any suit or
other proceedings with respect thereto, except as provided in the Indenture. If
an Event of Default occurs and is continuing, the principal of all Bonds then
outstanding may be declared due and payable by the Acting Party upon the
conditions and in the manner and with the effect provided in the Indenture. As
provided in the Indenture, and to the extent permitted by law, interest and a
penalty rate of interest shall be payable on unpaid amounts due hereon.
The Issuer, the Registrar, and any other person may treat the person
in whose name this Bond is registered on the books of registry as the Owner
hereof for the purpose of receiving payment as herein provided and for all other
purposes, whether or not this Bond be overdue, and no person shall be affected
by notice to the contrary.
Discharge. The Indenture prescribes the manner in which it may be
discharged and after which the Bonds shall be deemed to be paid and no longer be
secured by or entitled to the benefits of the Indenture, except for the purposes
of registration and exchange of Bonds and of such payment.
Modifications. Modifications or alterations of the Indenture, or of
any supplements thereto, may be made only to the extent and in the circumstances
permitted by the Indenture.
By its acceptance of this Bond, the Owner hereof agrees that it will
be bound by and accepts the provisions of the Indenture and the Loan Documents
as defined in the Loan
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Agreement. This Bond shall not be valid or obligatory for any purpose until it
shall have been signed on behalf of the Issuer and such signature attested, by
the officer, and in the manner, provided in the Indenture, and authenticated by
a duly authorized officer of the Trustee, as Authenticating Agent.
It is hereby certified and recited that all conditions, acts and things
required by the Constitution or statutes of the State or by the Act or the
Indenture to exist, to have happened or to have been performed precedent to or
in the issuance of this Bond exist, have happened and have been performed and
that the issue of the Bonds, together with all other indebtedness of the Issuer,
is within every debt and other limit prescribed by said Constitution or
statutes.
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IN WITNESS WHEREOF, the Xxxxxx County Housing Finance Corporation has
caused this Bond to be executed on its behalf by the facsimile signature of its
Authorized Representative, and attested to by the facsimile signature of its
Secretary, and its seal to be reproduced hereon, all as of the Effective Date.
XXXXXX COUNTY HOUSING FINANCE XXXXXX COUNTY
CORPORATION SEAL HOUSING FINANCE
CORPORATION
/s/ Xxxxxx X. Xxxxxx
President
Attest:
/s/ Xxxxxx X. Xxxxxx
Secretary
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds referred to in the within mentioned Indenture.
Date of Authentication:
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Trustee
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Authorized Signatory
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ASSIGNMENT
For value received, the undersigned do(es) hereby sell, assign and transfers
unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Name, Address and Tax Identification or Social
Security Number of Assignee)
the within-registered Bond and do(es) hereby irrevocably constitute and appoint,
attorney, to transfer the same on the registration books of the Trustee, with
full power of substitution in the premises.
Dated:
-------------------------------
Signature Guaranteed:
---------------------------------------- --------------------------------------
NOTICE: Signature(s) must be guaranteed NOTICE: The signature on Assignment
by an eligible guarantor must correspond with the name(s) as
written on the face of the within
Bond in every particular without
alteration or enlargement or any
change whatsoever.
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