Exhibit 4.2
STANDBY BOND PURCHASE AGREEMENT
dated as of
__________, 200__
between
[Name Of Bank],
as Trustee,
and
FGIC SECURITIES PURCHASE, INC.
___________________
relating to
$_________
[Name Of Issuer]
[Name Of Bonds]
STANDBY BOND PURCHASE AGREEMENT
STANDBY BOND PURCHASE AGREEMENT (the "Agreement") dated as of
__________, 200__ between [Name Of Bank], as Trustee (herein, the "Trustee"),
and FGIC SECURITIES PURCHASE, INC., a Delaware corporation (the "Corporation").
WHEREAS, _________________________, a[n][Insert type of entity],
organized and existing under the laws of _________________ (the "Issuer") has
issued simultaneously herewith $__________principal amount of its ________
Revenue Bonds ([Insert conduit title of bonds]), Series ______ (herein called
the "Variable Rate Bonds") pursuant to a [Trust Indenture/Resolution/Ordinance]
dated as of __________, 20__, between the Issuer and the Trustee (the
"Authorizing Document"), as in effect on the date hereof;
WHEREAS, [Insert name of conduit borrower], a[n][Insert type of entity],
organized under the laws of ________________ (the "Borrower") has agreed under a
Loan Agreement dated as of __________, 20__ (the "Loan Agreement") to make loan
repayments to the Issuer in amounts sufficient to pay debt service on the
Variable Rate Bonds; and
WHEREAS, the Authorizing Document provides that the holders of the
Variable Rate Bonds shall have the option, upon the satisfaction of certain
conditions, to tender Variable Rate Bonds to the Trustee for purchase, upon
notice to the Trustee as provided for in the Authorizing Document and, under
certain circumstances, may be required to tender their Variable Rate Bonds for
purchase thereof in accordance with the terms of the Authorizing Document; and
WHEREAS, the Corporation has agreed to purchase such tendered Variable
Rate Bonds pursuant to the terms of this Agreement, as consideration for (i) the
Corporation's status under the Authorizing Document as a bondholder of such
purchased tendered Variable Rate Bonds entitled to the payments and interest (at
the Provider Rate prescribed herein), as a [describe type of obligation] of the
Issuer payable from and secured by [describe security], and subject to the
limitations set forth in the Authorizing Document, and the fees and expenses
described herein; (ii) the Corporation's entitlement with respect to such
purchased Variable Rate Bonds to exercise, subject to the provisions hereof, all
rights and remedies afforded bondholders ("Bondholder" or "Bondholders") under
the Authorizing Document; and (iii) the Borrower's execution and delivery of the
Payment Agreement dated the date hereof (the "Payment Agreement") between the
Borrower, the Issuer and the Corporation;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein, have the
following meanings:
"Authorized Representative" means any official of the Trustee or its
agents duly authorized and empowered to execute and deliver this Agreement and
all certificates or other
documents connected herewith or in connection with the execution and delivery
and subsequent disposition of the Variable Rate Bonds.
"Available Commitment" as of any day means the sum of the Available
Principal Commitment and the Available Interest Commitment, in each case as of
such day.
"Available Interest Commitment" initially means $__________
(representing ___ days of interest at an annual rate of ___ per cent) and
thereafter means such initial amount adjusted from time to time as follows: (a)
downward by an amount that bears the same proportion to such initial amount as
the amount of any reduction in the Available Principal Commitment pursuant to
the definition of "Available Principal Commitment" bears to the initial
Available Principal Commitment; and (b) upward by an amount that bears the same
proportion to such initial amount as the amount of any increase in the Available
Principal Commitment pursuant to the definition of "Available Principal
Commitment" bears to the initial Available Principal Commitment.
"Available Principal Commitment" initially means $__________ and
thereafter means such initial amount adjusted from time to time as follows: (a)
immediately downward by the amount of any termination or reduction of the
Available Principal Commitment pursuant to Section 2.03 or Section 2.05; (b)
immediately downward by the principal amount of any Variable Rate Bonds
purchased by the Corporation pursuant to Section 2.02; and (c) immediately
upward by the principal amount of any Variable Rate Bonds theretofore purchased
by the Corporation pursuant to Section 2.02, which are delivered for sale
pursuant to Section 2.04(b) and the proceeds from which are paid to GE Capital
in accordance with the GE Capital Agreement.
"Business Day" has the meaning set forth in the Authorizing Document.
"Commitment" means the Available Commitment calculated without regard to
clauses (b) and (c) of the definition of Available Principal Commitment and the
effect thereof on the amount of the Available Interest Commitment.
"Default" means any condition or event which constitutes an Event of
Default or which, with the giving of notice or lapse of time or both, would,
unless cured or waived, become an Event of Default.
"Default Rate" means a rate of interest per annum equal to the Prime
Rate plus 3%; provided, however, that such Default Rate shall not exceed the
Maximum Interest Rate.
"Effective Date" means the date of execution and delivery of this
Agreement.
"Event of Default" has the meaning set forth in Section 6.01.
"Financial Guaranty" means Financial Guaranty Insurance Company (doing
business in California as FGIC Insurance Company), as insurer of the Variable
Rate Bonds.
"Fitch" means Fitch, Inc., and its successors.
"GE Capital" means General Electric Capital Corporation.
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"GE Capital Agreement" means the Standby Loan Agreement, dated as of the
date hereof, by and between the Corporation and GE Capital Corporation.
"Maximum Interest Rate" shall have the meaning set forth in the
Authorizing Document.
"Moody's" means Xxxxx'x Investors Service, Inc., and its successors.
"Notice of Purchase" has the meaning specified in Section 2.02.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"Prime Rate" means the rate of interest publicly announced by Xxxxxx
Guaranty Trust Company of New York from time to time as its Prime Rate;
provided, however, that in no event shall the Prime Rate exceed the Maximum
Rate.
"Prospectus Supplement" means the Prospectus Supplement relating to this
Agreement which supplements the Corporation's Prospectus dated __________, 20__
included in the Corporation's Registration Statement on Form S-3 (File No.
_________) and amendments thereto, filed with the Securities and Exchange
Commission.
"Provider Bonds" means Variable Rate Bonds purchased by the Corporation
which have not been sold pursuant to Section 2.04(b).
"Provider Rate" means the rate of interest per annum set forth in the
Provider Bonds and equal to the Prime Rate plus 1% or, if applicable, the
Default Rate; provided, however, that such Provider Rate shall not exceed the
Maximum Interest Rate.
"Purchase Date" has the meaning set forth in Section 2.02(c).
"Purchase Price" has the meaning set forth in Section 2.01.
"Purchase Period" means the period from the Effective Date to and
including the earlier of (i) the Scheduled Termination Date (or, if such date is
not a Business Day, the Business Day immediately succeeding such date), (ii) the
date on which all Variable Rate Bonds have been paid in full, prepaid or
defeased in accordance with the terms of such Variable Rate Bonds, and (iii) two
Business Days following the date the Variable Rate Bonds are converted to a
Fixed Rate in accordance with the terms of such Variable Rate Bonds, and (iv)
the date on which the Commitment is terminated pursuant to Section 2.03.
"Related Documents" means the Authorizing Document (as amended or
supplemented from time to time), the Variable Rate Bonds, the Remarketing
Agreement, the Loan Agreement, the Payment Agreement and all other documents
relating to the issuance of the Variable Rate Bonds and any amendments,
substitutions, or modifications thereof and all other agreements, documents,
certificates and instruments executed and delivered on or before the Effective
Date in connection with the issuance, sale and delivery of the Variable Rate
Bonds and the execution and delivery of this Agreement.
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"Remarketing Agent" means __________, or its successor appointed as
remarketing agent pursuant to the Authorizing Document.
"Remarketing Agreement" means the Remarketing Agreement, dated as of
__________, 20__ between the Issuer and the Remarketing Agent.
"Scheduled Termination Date" means the date occurring five years from
the Effective Date.
"Standard & Poor's" means Standard & Poor's Ratings Services, a division
of the The XxXxxx-Xxxx Companies, Inc., and its successors.
"State" means the State of __________.
"Termination Event" has the meaning set forth in Section 6.01.
"Termination Notice" has the meaning set forth in Section 2.03.
SECTION 1.02. Incorporation of Certain Definitions by Reference. Each
capitalized term used herein and not otherwise defined herein shall have the
meaning provided therefor in the Authorizing Document.
ARTICLE II
COMMITMENT TO PURCHASE VARIABLE RATE BONDS
SECTION 2.01. Commitment to Purchase Variable Rate Bonds. The
Corporation agrees, on the terms and conditions contained in this Agreement, to
purchase the Variable Rate Bonds bearing interest at a variable rate that are
tendered or deemed tendered to the Trustee from time to time pursuant to the
Authorizing Document during the Purchase Period at the purchase price set forth
in the Authorizing Document (the "Purchase Price"). In accordance with Section
2.3 of the GE Capital Agreement, such purchase shall be made from Corporation
moneys or moneys made available by GE Capital to the Corporation under the GE
Capital Agreement. In the event such moneys come from those moneys available
under the GE Capital Agreement, the Corporation shall take the necessary steps
to obtain such moneys in accordance with the GE Capital Agreement. The aggregate
principal amount of the Variable Rate Bonds purchased by the Corporation on any
Purchase Date shall not exceed the Available Principal Commitment on such date
and the aggregate amount of the Purchase Price comprising interest on Variable
Rate Bonds purchased by the Corporation on any Purchase Date shall not exceed
the lesser of (1) the Available Interest Commitment and (2) the actual amount of
interest accrued and unpaid on such Variable Rate Bonds to but excluding such
date. The Corporation agrees that in no event shall amounts paid by it in
respect of the Purchase Price be paid from funds or property of the Issuer or
the Borrower. The parties hereto acknowledge that the obligation of the
Corporation hereunder to purchase Variable Rate Bonds pursuant and subject to
the terms and conditions of this Agreement is irrevocable and that the
Corporation shall become a Bondholder under the Authorizing Document of each
Variable Rate Bond purchased under this Agreement and that the Corporation, as
such Bondholder, shall be entitled, as the holder of Variable Rate Bonds bearing
interest at the Provider Rate, to all rights and remedies granted to Bondholders
of Variable Rate
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Bonds under the Authorizing Document. From and after the Effective Date, the
obligation of the Corporation to purchase Variable Rate Bonds pursuant to this
Agreement shall run to the benefit of those beneficiaries identified in Section
7.09.
SECTION 2.02. Method of Purchasing. (a) Pursuant to the Authorizing
Document and Section 2.02(b) herein, the Trustee will give notice to the
Corporation if Variable Rate Bonds bearing interest at a Variable Rate are to be
purchased by the Corporation in accordance with the terms of this Agreement and
the Authorizing Document.
(b) If by 11:30 a.m. (New York City time) on any Business
Day during the Purchase Period the Corporation receives a notice of purchase
from the Trustee substantially in the form of Exhibit 1 hereto (any such notice
to be referred to as a "Notice of Purchase"), the Corporation will, in the
manner contemplated by Section 7.01, (i) immediately provide notice of such
Notice of Purchase to GE Capital that a borrowing will occur under the GE
Capital Agreement, and (ii) pay, unless it determines that any applicable
condition specified in Section 3.02 below is not satisfied, not later than 2:30
p.m. (New York City time) on the hereinafter defined Purchase Date to the
Trustee, in funds to be available as specified in such Notice of Purchase, an
amount equal to the aggregate Purchase Price.
(c) The "Purchase Date" for any purchase of Variable Rate
Bonds shall be the date specified in the Notice of Purchase; provided that in no
event shall the Purchase Date be (i) on the same day the Notice of Purchase is
received if the Notice of Purchase is received by the Corporation later than
11:30 a.m. (New York City time) or (ii) after the last day of the Purchase
Period.
SECTION 2.03. Termination of Commitment. If at any time a Termination
Event shall have occurred and be continuing, the Corporation may deliver a
notice (a "Termination Notice") regarding the termination of the Commitment
substantially in the form of Exhibit 2 hereto to the Trustee, the tender agent
(if any), the Issuer, the Borrower and the Remarketing Agent at the addresses
set forth in Exhibit 3 hereto (or such other addresses as may be specified by
such Persons for such purpose in writing to the Corporation), and the Commitment
shall terminate, effective at the close of business on the thirtieth (30th) day
following the date of the Termination Notice, or if that date is not a business
day, on the next Business Day; provided, however, that before such termination
takes effect, the Variable Rate Bonds shall be subject to mandatory tender for
purchase from the proceeds of a drawing under this Agreement; and the Commitment
shall also terminate immediately upon the effectiveness of an alternate
liquidity facility in accordance with the terms of the Authorizing Document.
SECTION 2.04. Sale of Variable Rate Bonds.
(a) Remarketing Notices. Prior to 12:00 noon (New York City
time) on any Business Day on which the Corporation holds Variable Rate Bonds
purchased pursuant to this Agreement, the Remarketing Agent may deliver a notice
(a "Remarketing Notice") to the Corporation, the Trustee, the Issuer and the
Borrower stating that it has located a purchaser (the "Purchaser") for some or
all of such Variable Rate Bonds and that such Purchaser desires to purchase on
such Business Day such Variable Rate Bonds at the Purchase Price.
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(b) Sale of Purchased Variable Rate Bonds. Upon receipt of a
Remarketing Notice in accordance with subsection (a), the Corporation shall
direct the Trustee to deliver those Variable Rate Bonds held in the account of
the Corporation being remarketed by the Remarketing Agent against payment for
such Variable Rate Bonds in an amount equal to the Purchase Price plus interest
accrued and unpaid.
(c) Right to Sell Bonds. The Corporation expressly reserves
the right to sell, at any time to institutional investors, Provider Bonds
purchased by it pursuant to this Agreement provided that any such purchaser,
including any purchase by GE Capital pursuant to the terms of the GE Capital
Agreement, acknowledges in writing that (i) its purchase pursuant to this
Section 2.04(c) is subject to the provisions of Sections 2.04(a) and (b) hereof,
(ii) the [Fitch rating,] [the Xxxxx'x rating] and [the Standard & Poor's rating]
shall no longer be applicable and (iii) it shall not be entitled to the benefits
of tender and purchase under Sections 2.01 and 2.02 of this Agreement or under
the Authorizing Document.
(d) Sale Without Recourse. Any sale of a Variable Rate Bond
or portion thereof shall be without recourse to the seller and without
representation or warranty of any kind except as may be required by law.
SECTION 2.05. Reduction of Available Commitment. Upon any Variable Rate
Bond ceasing to be outstanding pursuant to the Authorizing Document or upon
conversion to a Bond Interest Term Rate, a Long Rate or a Fixed Interest Rate of
all or any portion of the principal amount of the Variable Rate Bonds, the
aggregate Available Principal Commitment shall automatically be terminated by an
amount equal to the principal amount of such Variable Rate Bonds ceasing to be
outstanding or converted to a Bond Interest Term Rate, a Long Rate or a Fixed
Interest Rate pursuant to the Authorizing Document.
ARTICLE III
CONDITIONS
SECTION 3.01. Conditions to Effectiveness. This Agreement shall not
become effective until each of the following conditions has been satisfied:
(a) receipt by the Corporation, of an opinion of counsel to the
Trustee, dated the Effective Date, covering the matters represented or warranted
in Sections 4.01, 4.02 and 4.03 hereof;
(b) receipt by the Trustee and the Issuer, of an opinion of
counsel for the Corporation, dated the Effective Date, covering the matters
represented or warranted in Sections 4.04, 4.05, 4.06 and 4.07 hereof;
(c) receipt by the Corporation of an opinion of counsel to the
Borrower in the form attached to the Payment Agreement or as otherwise agreed to
by the parties;
(d) reliance letters or opinions shall have been addressed and
delivered to the Corporation with respect to the legal opinions delivered in
connection with the execution of this Agreement and the issuance of the Variable
Rate Bonds;
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(e) receipt by the Corporation of a certificate from an
authorized representative of the Issuer and the Borrower to the effect that as
of the Effective Date, to the Issuer's best knowledge no "event of default"
exists under the Authorizing Document or the Loan Agreement or any Related
Document nor does any event exist which might become an event of default with
the passage of time or giving of notice or both;
(f) Financial Guaranty shall have issued a policy of municipal
bond insurance guaranteeing payment of the full amount of principal of and
interest on the Variable Rate Bonds in accordance with Financial Guaranty's
Commitment Letter dated __________, 20__, relating to such policy; and
(g) receipt of the executed GE Capital Agreement and opinions
related thereto; and
(h) on the Effective Date, the Corporation shall deliver to the
Issuer and the Trustee its certificate stating that this Agreement has become
effective and that the conditions precedent thereto have been satisfied.
SECTION 3.02. Conditions to Purchase. The following shall be the
conditions to the Corporation's obligation to purchase Variable Rate Bonds under
the terms of the Authorizing Document:
(a) The obligation of the Corporation to purchase Variable Rate
Bonds hereunder on any Purchase Date is subject to receipt by the Corporation of
a Notice of Purchase as required by Section 2.02;
(b) The Corporation shall not be required to purchase Variable
Rate Bonds beneficially held (or held in certificated form) by or for the
account of or on behalf of the Issuer or the Borrower or any affiliate of the
Issuer or the Borrower; and
(c) To the extent Variable Rate Bonds are certificated the
Trustee shall hold, as agent for the Corporation, Variable Rate Bonds purchased
by the Corporation hereunder, regardless of whether such certificates have been
purchased by another entity in accordance with Section 2.04(c); the Trustee
shall register such Variable Rate Bonds purchased by the Corporation in the name
of the Corporation or in such other name or names as the Corporation may direct.
The Corporation shall be obligated to purchase those Variable Rate
Bonds, and only such Variable Rate Bonds, with respect to which the condition
set forth in clause (b) has been satisfied notwithstanding the fact that certain
of the outstanding Variable Rate Bonds for which such condition has not been
satisfied are not required to be purchased. The Corporation shall notify the
Trustee, the tender agent (if any), the Issuer and the Borrower by telephone no
later than 1:30 p.m. (New York City time) on any Purchase Date in the event any
of the conditions set forth in this Section are not met.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Trustee represents and warrants that, as of the date on which this
Agreement is executed:
SECTION 4.01. Existence. The Trustee is a validly existing national
banking association having trust powers, with full right and power to execute,
deliver and perform its obligations under this Agreement and each Related
Document to which it is a party.
SECTION 4.02. Authorization; Contravention. The execution, delivery and
performance by the Trustee of this Agreement are within the Trustee's powers,
have been duly authorized by all necessary action and require no further action
by or in respect of, or filing with, any governmental body, agency or official
having jurisdiction over the trust powers of the Trustee.
SECTION 4.03. Binding Effect. This Agreement constitutes a valid,
binding and enforceable agreement of the Trustee, subject to bankruptcy,
insolvency, reorganization, arrangement and other applicable laws relating to or
affecting creditors' rights generally, to the exercise of judicial discretion in
appropriate cases and to the application of equitable principles.
The Corporation represents and warrants that, as of the date on which
this Agreement is executed:
SECTION 4.04. Corporate Existence. The Corporation has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the State of Delaware.
SECTION 4.05. Authorization; Binding Effect. This Agreement and the GE
Capital Agreement each has been duly executed and delivered by the Corporation
pursuant to due authorization and each of this Agreement and the GE Capital
Agreement constitutes a valid and binding agreement of the Corporation and GE
Capital, respectively, enforceable against the Corporation and GE Capital,
respectively, in accordance with its terms, except as (x) limited by insolvency,
reorganization, receivership, conservatorship, liquidation, moratorium or other
similar laws affecting the enforcement of creditors' rights generally as such
laws would apply in the event of the insolvency, reorganization, receivership,
conservatorship or liquidation of, or other similar occurrence with respect to,
the Corporation or GE Capital, respectively, or in the event of any moratorium
or similar occurrence affecting the Corporation or GE Capital, respectively and
(y) limited by equitable principles (regardless of whether the issue of
enforceability is considered in a proceeding in equity or at law).
SECTION 4.06. Contravention; No Default. The execution and delivery by
the Corporation of, and the performance by the Corporation of its obligations
under, this Agreement and the GE Capital Agreement will not contravene any
provision of applicable law or the Certificate of Incorporation or By-laws, each
as amended, of the Corporation or any material agreement or other instrument
binding upon the Corporation, and no consent, approval or authorization of any
governmental body or agency (which has not been obtained) is required for
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the performance by the Corporation of its obligations under this Agreement or
the GE Capital Agreement.
SECTION 4.07. Litigation. There is no action, suit or proceeding pending
against, or to the knowledge of the Corporation threatened against, the
Corporation or GE Capital before any court or arbitrator or any governmental
body, agency or official in which there is a reasonable possibility of an
adverse decision which could materially adversely affect the financial position
or results of operations of the Corporation or which in any manner draws into
question the validity or enforceability of this Agreement or the GE Capital
Agreement or the Corporation's ability to perform under this Agreement or the GE
Capital Agreement.
ARTICLE V
COVENANTS
SECTION 5.01. No Amendment of GE Capital Agreement Without Consent of
the Issuer, Borrower and Trustee. Without the prior written consent of the
Trustee, the Issuer and the Borrower, the Corporation will not agree or consent
to any amendment, supplement or modification of the GE Capital Agreement, nor
waive any provision thereof, nor shall the Corporation reduce, or agree to the
reduction of, any amount it may borrow thereunder to an amount lower than the
Available Commitment hereunder, if such amendment, supplement, modification or
waiver would materially adversely affect the issuer or the Bondholders. The
Corporation hereby repeats, for the benefit of the Trustee, the Issuer, the
Borrower and the holders of the Variable Rate Bonds, the covenants set forth in
Section 6.1 of the GE Capital Agreement, which covenants, as well as the related
defined terms contained therein, are hereby incorporated by reference with the
same effect as if each and every such covenant and defined term were set forth
herein in its entirety.
SECTION 5.02. Other Liquidity Facilities. The Corporation agrees not to
enter into another standby bond purchase agreement or other similar form of
liquidity facility in support of the tender feature of adjustable rate bonds or
certificates, unless such bonds or certificates are rated by [Fitch,] [Moody's]
and [Standard & Poor's] in their highest short-term and long-term rating
categories (without regard to "+" or "-" or numerical distinction) after giving
effect to such other agreement or liquidity facility in support of the tender
feature of adjustable rate bonds or certificates.
SECTION 5.03. Disclosure. The Corporation hereby agrees to (i) provide
the Issuer with any disclosure information which the Issuer may reasonably
request relating to the Corporation for inclusion in the preliminary and final
official statement, including providing any prospectus or prospectus supplement
for the initial offering, or any reoffering circular relating to the Variable
Rate Bonds, and (ii) shall promptly provide to the Remarketing Agent any
documents, including any prospectus or prospectus supplements, as may, in the
opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP or other special securities
counsel acceptable to the Remarketing Agent and the Issuer, be required for the
remarketing of the Variable Rate Bonds.
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ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) (i) any portion of the commitment fee for this Agreement
shall not be paid when due on the quarterly payment date therefor as set forth
in the Payment Agreement, or (ii) any other amount payable thereunder shall not
be paid when due and, in either case, any such failure shall continue for three
(3) Business Days after notice thereof to the Borrower and to the Trustee;
(b) the State shall take any action which would impair the power
of the Issuer or the Borrower to comply with the covenants and obligations of
the Issuer or the Borrower under the Related Documents or any right or remedy of
the Corporation or any owners of the Variable Rate Bonds from time to time to
enforce such covenants and obligations;
(c) (i) the Issuer or the Borrower shall fail to observe or
perform any covenant or agreement contained in the Related Documents and, if
such failure is the result of a covenant breach which is capable of being
remedied, such failure continues for ninety (90) days following written notice
thereof to the Issuer, the Trustee and the Borrower from the Corporation,
provided that if any such failure (other than a payment default) shall be such
that it cannot be cured or corrected within such ninety (90) day period, it
shall not constitute an Event of Default hereunder if curative or corrective
action is instituted within such period and diligently pursued until the failure
of performance is cured or corrected, or (ii) there shall not be, at all times a
Remarketing Agent performing the duties thereof contemplated by the Authorizing
Document;
(d) an event of default has occurred and is continuing under any
of the Related Documents;
(e) any representation, warranty, certification or statement
made by the Issuer or the Borrower (or incorporated by reference) in any Related
Document or in any certificate, financial statement or other document delivered
pursuant thereto or any Related Document shall prove to have been incorrect in
any material respect when made;
(f) any default by the Issuer or the Borrower shall have
occurred and be continuing in the payment of principal of or premium, if any, or
interest on any bond, note or other evidence of indebtedness of the Issuer or
the Borrower which under the Authorizing Document or any Related Document is
senior to, or on parity with, the Variable Rate Bonds;
(g) the Issuer or the Borrower files a petition in voluntary
bankruptcy, for the composition of its affairs or for its corporate
reorganization under any state or federal bankruptcy or insolvency law, or makes
an assignment for the benefit of creditors, or admits in writing to its
insolvency or inability to pay debts as they mature, or consents in writing to
the appointment of a trustee or receiver for itself;
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(h) a court of competent jurisdiction shall enter an order,
judgment or decree declaring the Issuer or the Borrower insolvent, or adjudging
it bankrupt, or appointing a trustee or receiver of the Issuer, or approving a
petition filed against the Issuer or the Borrower seeking reorganization of the
Issuer or the Borrower under any applicable law or statute of the United States
of America or any state thereof, and such order, judgment or decree shall not be
vacated or set aside or stayed within sixty (60) days from the date of the entry
thereof;
(i) under the provisions of any other law for the relief or aid
of debtors, any court of competent jurisdiction shall assume custody or control
of the Issuer or the Borrower and such custody or control shall not be
terminated within sixty (60) days from the date of assumption of such custody or
control;
(j) any material provision of this Agreement, the Authorizing
Document, the Remarketing Agreement, any Related Document, the Variable Rate
Bonds or the Provider Bonds shall cease for any reason whatsoever to be a valid
and binding agreement of the Issuer or the Borrower or the Issuer or the
Borrower shall contest the validity or enforceability thereof; or
(k) failure to pay when due any amount payable under the
Variable Rate Bonds or Provider Bonds (regardless of any waiver thereof by the
holders of such Bonds);
then, and in every such event (each such event is herein called a "Termination
Event"), (i) the interest rate payable on Provider Bonds shall increase to the
Default Rate, (ii) the Corporation may terminate the Corporation's obligation to
purchase Variable Rate Bonds pursuant to this Agreement as provided in Section
2.03; provided that an Event of Default shall not affect the obligation of the
Corporation to purchase Variable Rate Bonds in accordance with the provisions of
this Agreement prior to the close of business on the date on which such
obligation terminates pursuant to Section 2.03, and (iii) the Corporation may
declare any amounts due under the Payment Agreement to be immediately due and
payable.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including fax or similar writing) and
shall be given to such party at its address or facsimile number set forth on
Exhibit 3 hereof or such other address or facsimile number as such party may
hereafter specify for such purpose by notice to the other parties. Each such
notice, request or other communication shall be effective (i) if given by
facsimile, when such facsimile is transmitted to the facsimile number provided
as specified in this Section and the appropriate answerback is received, (ii) if
given by mail, 72 hours after such communication is deposited in the mails with
first class postage prepaid, addressed as aforesaid or (iii) if given by any
other means, when delivered at the address provided as specified in this
Section; provided that notices to the Corporation under Sections 2.02 and 2.04
shall not be effective until received and that notices under Sections 2.02 and
2.04 may also be given by telephone to the Corporation at the telephone numbers
listed on Exhibit 3 hereof (or such other telephone number as may be designated
by the Corporation, by written notice to the Trustee and the tender agent (if
any), to receive such notice), immediately confirmed in writing or by facsimile.
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SECTION 7.02. No Waivers.
(a) The obligations of the parties hereunder shall not in any
way be modified or limited by reference to any other document, instrument or
agreement (including, without limitation, the Variable Rate Bonds or any other
Related Document) except as set forth herein. The rights of the Corporation
hereunder are separate from and in addition to any rights that any holder of any
Variable Rate Bond may have under the terms of such Variable Rate Bond or any
Related Document or otherwise.
(b) No failure or delay by the Corporation in exercising any
right, power or privilege hereunder or under the Variable Rate Bonds shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law. No
failure or delay by the Corporation in exercising any right, power or privilege
under or in respect of the Variable Rate Bonds or any other Related Document
shall affect the rights, powers or privileges of the Corporation hereunder or
shall operate as a limitation or waiver thereof.
SECTION 7.03. Amendments and Waivers. Any provision of this Agreement
may be amended or waived if, but only if, such amendment or waiver is in writing
and is signed by the Trustee and the Corporation. The Trustee shall notify each
rating agency then maintaining a rating on the Variable Rate Bonds in writing of
any amendment to this Agreement, each of which rating agencies must confirm to
the Trustee prior to such amendment or waiver becoming effective that such
amendment or waiver will not result in a change in the rating then assigned to
the Variable Rate Bonds by such rating agency. The Trustee shall notify the
Issuer of the execution and delivery of any such amendment or waiver.
SECTION 7.04. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that neither party may assign or
otherwise transfer any of its rights under this Agreement without the prior
written consent of the other party except to any successor Trustee pursuant to
the terms of the Authorizing Document. The Trustee shall notify each rating
agency then maintaining a rating on the Variable Rate Bonds in writing of any
assignment or transfer for which consent of the Trustee or the Corporation is
required, each of which rating agency must confirm to the Trustee that prior to
such assignment or transfer becoming effective such assignment or transfer will
not result in a change in the rating then assigned to the Variable Rate Bonds by
such rating agency.
SECTION 7.05. Term of this Agreement. The term of this Agreement shall
be until the expiration of the Purchase Period.
SECTION 7.06. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York.
SECTION 7.07. Counterparts. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12
SECTION 7.08. Trustee May Act through Agents and Appoint Co-Trustees.
The Trustee may execute any of the powers hereof and perform any duties
hereunder either directly or by or through its agents or attorneys. The Trustee
may delegate to one or more co-trustees or co-tender agents such power, rights,
duties and responsibilities as they may deem necessary or desirable in order to
permit the Trustee to lawfully execute and perform the duties set forth in this
Agreement.
SECTION 7.09. Beneficiaries. This Agreement is made by the Corporation
with the Trustee for the express benefit of the holders of the Variable Rate
Bonds, the Issuer and the Borrower. Nothing contained herein, express or
implied, is intended to give any person other than the Corporation, the Trustee,
the Issuer, the Borrower and the holders of the Variable Rate Bonds any right,
remedy, or claim hereunder or by reason hereof. Any agreement or covenant
required herein to be performed by or on behalf of the Corporation shall be for
the sole and exclusive benefit of the Trustee, the Issuer, the Borrower and the
holders of the Variable Rate Bonds. Prior to the Scheduled Termination Date and
provided that the Commitment hereunder has not terminated pursuant to the
provisions of Sections 2.03 and 6.01 hereof, the Corporation agrees that it will
not assert any act or failure to act by the Issuer, including without limitation
(A) the commencement of a bankruptcy or similar case by or against the Issuer or
the Borrower, (B) the unenforceability or nonpayment of the Provider Rate in any
such case, (C) the unenforceability of the Payment Agreement, or (D) any default
under any Related Document or Event of Default as a defense to its obligations
hereunder, and that this Agreement shall survive (A) the commencement of a
bankruptcy or similar case by or against the Issuer, (B) the unenforceability or
nonpayment of the Provider Rate in any such case, (C) the unenforceability of
the Payment Agreement, or (D) any default under any Related Document or Event of
Default. The Corporation agrees that, so long as this Agreement is in effect and
has not terminated, the holders of the Variable Rate Bonds, the Issuer and the
Borrower are express beneficiaries of this Agreement and, as such, any holder of
a Variable Rate Bond, the Issuer and the Borrower on behalf of any such holder
shall have the right to bring suit against the Corporation to enforce this
Agreement should the Corporation fail to perform any of its obligations
hereunder.
SECTION 7.10. Capacity of Trustee. The Trustee is entering into this
Agreement solely in its capacity as Trustee under the Authorizing Document and
the duties, powers, rights and liabilities of the Trustee in acting hereunder as
Trustee shall be subject to the provisions of the Authorizing Document
including, without limitation, [Authorizing Document reference] thereof.
SECTION 7.11. Responsibility of Corporation for Trustee Actions. The
Corporation shall not have any responsibility for, or incur any liability in
respect of, any act, or any failure to act, by the Trustee which results in the
failure of the Trustee (i) to credit the appropriate account with funds made
available by the Corporation pursuant to this Agreement or (ii) to effect the
purchase for the account of the Corporation of Variable Rate Bonds with such
funds pursuant to this Agreement.
13
IN WITNESS WHEREOF, the parties hereto have caused this Standby Bond Purchase
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
[Name Of Bank], as Trustee
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
FGIC SECURITIES PURCHASE, INC.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
14
EXHIBIT 1
[LETTERHEAD OF THE TRUSTEE]
NOTICE OF PURCHASE
[Date]
FGIC Securities Purchase, Inc.
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Re: $_________ [Issuer][Name of Bonds] (the "Variable Rate Bonds")
Ladies and Gentlemen:
Reference is made to the Standby Bond Purchase Agreement dated as of
__________, 200__ (the "Agreement") between [Name of Bank], as Trustee, and FGIC
Securities Purchase, Inc. Capitalized terms used herein shall have the meanings
given to them in or by reference to the Agreement.
Pursuant to Section 2.02(a) of the Agreement, we hereby give you notice
that due to the unavailability of remarketing proceeds on the Purchase Date
(hereinafter defined) or the occurrence of such other applicable event as is
described the Authorizing Document, such Variable Rate Bonds are to be purchased
by you on ____________ __, (the "Purchase Date") pursuant to Section 2.02 of the
Agreement. The aggregate Purchase Price of such Variable Rate Bonds is
__________ dollars ($________). Of such aggregate Purchase Price, __________
dollars ($______) comprises principal of such Variable Rate Bonds and _________
dollars ($______) comprises interest accrued on such Variable Rate Bonds to but
excluding the Purchase Date. The Variable Rate Bonds referred to herein bear
interest at a variable rate and have not been defeased.
The Purchase Price should be provided in immediately available funds on
the Purchase Date at the time specified in the Agreement.
Very truly yours,
[Name Of Bank], as Trustee
By:
---------------------------------
Name:
Title:
EXHIBIT 2
[LETTERHEAD OF CORPORATION]
TERMINATION NOTICE
[Insert Name and Address of Trustee]
Re: $_________ [Issuer][Name of Bonds] (the "Variable Rate Bonds")
Ladies and Gentlemen:
Reference is made to the Standby Bond Purchase Agreement dated as of
__________, 20__ (the "Agreement"), between [Name of Bank], as Trustee, and FGIC
Securities Purchase, Inc. Capitalized terms used herein shall have the meanings
given to them in or by reference to the Agreement.
We hereby give you notice that a Termination Event [identify the event]
has occurred and is continuing. Pursuant to Section 2.03 of the Agreement, the
Commitment shall terminate, effective at the close of business on [identify the
date], which is the 30th day following the date of receipt of this Termination
Notice, or if such day is not a Business Day, the next succeeding Business Day.
Please be advised that a Notice of Purchase may not be delivered
following the effective date of the termination of the Commitment.
Very truly yours,
FGIC SECURITIES PURCHASE, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
EXHIBIT 3
NOTICE ADDRESSES
[Trustee]
[Street Address]
[City, State, Zip Code]
Attention: __________
Fax Number: (___) ___-____
Telephone Number: (___) ___-____
[Conduit Borrower]
[Street Address]
[City, State, Zip Code]
Attention: __________
Fax Number: (___) ___-____
Telephone Number: (___) ___-____
[Issuer]
[Street Address]
[City, State, Zip Code]
Attention: __________
Fax Number: (___) ___-____
Telephone Number: (___) ___-____
FGIC SECURITIES PURCHASE, INC.
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: President
Copy: Senior Counsel, Public Finance
Fax Number: (212) 312-3093
Telephone Number: (000) 000-0000
[Remarketing Agent]
[Street Address]
[City, State, Zip Code]
Attention: __________
Fax Number: (___) ___-____
Telephone Number: (___) ___-____
EXHIBIT 4
PAYMENT AGREEMENT
AGREEMENT (the "Agreement") dated as of __________, 20__ among [Name of
Borrower], a _________________________ under the laws of _______________________
(the "Borrower"), [Name of Issuer], a[n][Insert type of entity], organized and
existing under the laws of ____________ (the "Issuer") and FGIC SECURITIES
PURCHASE, INC., a Delaware corporation (the "Corporation").
WHEREAS, the Issuer has issued simultaneously herewith $____________
principal amount of its [Name of Bonds] (herein called, the "Variable Rate
Bonds") pursuant to a [Authorizing Document] dated as of __________, 20__ (the
"Authorizing Document"), between the Issuer and [Name of Trustee], as Trustee
(the "Trustee") as in effect on the date hereof;
WHEREAS, the Borrower has agreed under a Loan Agreement dated as of
__________, 20__ (the "Loan Agreement") to make loan repayments to the Issuer in
amounts sufficient to pay debt service on the Variable Rate Bonds; and
WHEREAS, the Authorizing Document provides that the holders of the
Variable Rate Bonds shall have the option, upon the satisfaction of certain
conditions, to tender Variable Rate Bonds to the Trustee for purchase, upon
notice to the Trustee as provided for in the Authorizing Document and, under
certain circumstances, may be required to tender their Variable Rate Bonds for
purchase thereof in accordance with the terms of the Authorizing Document; and
WHEREAS, the Corporation has agreed to purchase such tendered Bonds
pursuant to the terms of a Standby Bond Purchase Agreement ,dated as of the date
hereof (the "Standby Bond Purchase Agreement"), between the Corporation and the
Trustee;
NOW, THEREFORE, as consideration for the issuance by the Corporation of
the Standby Bond Purchase Agreement and the Corporation's assumption of the
liabilities and undertakings of the Corporation thereunder, the parties hereto
agree as follows (hereinafter, all capitalized terms not otherwise defined
herein shall have the same meanings set forth in the Standby Bond Purchase
Agreement or in the Authorizing Document, wherever such terms appear):
1. Fees. (a) Until the Commitment has terminated, the Borrower
shall pay to the Corporation a commitment fee at the rate of ____% per annum on
the daily average amount of the Available Commitment. Such commitment fee shall
accrue from and including the Effective Date to but excluding the date of
termination of the Commitment in its entirety and shall be payable quarterly in
arrears on the first day of each March, June, September and December, commencing
__________ 1, 20__ and upon the date of termination of the Commitment in its
entirety. The Corporation shall use its best efforts to mail to the Borrower and
the Trustee, not fewer than thirty (30) days prior to each quarterly due date,
an invoice for the amount of the commitment fee next due. The commitment fee
shall be computed on the basis of a year of 365/366 days and paid for the actual
number of days elapsed.
(b) The Borrower shall also pay a fee equal to (i) the
amount paid under the Standby Bond Purchase Agreement that is applied to pay the
interest portion of the Purchase Price, multiplied by (ii) the Provider Rate,
divided by (iii) 365 and multiplied by (iv) the number of days from the date
such Purchase Price is paid to (but not including) the date such interest
portion is repaid to the Corporation. Such fee shall be payable on the Interest
Payment Date for the Bonds next following the date on which such Purchase Price
was paid by the Corporation or the date such Provider Bonds are remarketed,
whichever is first.
(c) Whenever any payment hereunder shall be due on a day
which is not a Business Day, the date for payment thereof shall be extended to
the next succeeding Business Day.
2. General Provisions as to Payments; Security. (a) Notwithstanding
any provision contained in the Variable Rate Bonds, any Related Document, or any
other instrument, so long as any of the Variable Rate Bonds are owned by the
Corporation under the Standby Bond Purchase Agreement, the Trustee on behalf of
the Issuer shall cause each payment of principal of and interest on such
Variable Rate Bonds so owned by the Corporation to be paid not later than 2:30
p.m., New York City time on the date when due in immediately available funds, to
the account of the Corporation at Bankers Trust, ABA No. 000000000, A/C No.
00-000-000. Commitment fees due to the Corporation pursuant to Section 1 hereof
shall be paid by the Borrower not later than 2:00 p.m., New York City time on
the date when due in immediately available funds, or on the prior day in next
day funds, to the account of the Corporation.
(b) As security for the payment of all amounts due
hereunder, the Issuer hereby pledges and grants to the Corporation a subordinate
lien on Revenues, which lien shall be of equal standing and priority with the
pledge of Revenues for the Variable Rate Bonds, Provider Bonds, Prior Bonds and
any Additional Parity Bonds hereinafter issued. The lien of the pledge shall be
valid and binding against all parties having claim in tort, contract or
otherwise against the Issuer (except for the holders of the Variable Rate Bonds,
Prior Bonds and any Additional Parity Bonds) irrespective of whether such
parties have notice of the lien
3. Expenses. The Borrower shall pay all reasonable out-of-pocket
Corporation expenses, including (i) fees and disbursements of counsel for the
Corporation (as set forth in the Commitment Letter dated __________, 20__ from
the Corporation to the Issuer, such fees and disbursements equal to $_______) in
connection with the preparation and review of the Standby Bond Purchase
Agreement, this Agreement, initial Securities and Exchange Commission filings,
the preliminary official statement and the final official statement relating to
the Variable Rate Bonds and the Related Documents, (ii) fees and disbursement of
KPMG LLP, accountants to the Corporation and GE Capital, such fees and
disbursements equal to $____, (iii) fees associated with Securities and Exchange
Commission filings, such fee to equal 1/29th of one percent (1%) of the
Available Commitment, (iv) fees and disbursements in connection with any waiver
or consent hereunder or under any Related Document or any amendment hereof or
thereof or any default or alleged default hereunder or thereunder, and (v) if an
Event of Default occurs under the Standby Bond Purchase Agreement, reasonable
out-of-pocket expenses incurred by the Corporation, including reasonable fees
and disbursements of counsel, in connection with such Event of Default and
collection and other enforcement proceedings resulting therefrom.
2
4. Indemnification. To the extent permitted by law, the Borrower
hereby indemnifies and holds harmless the Corporation from and against the cost
of defending any and all third party claims and all costs, losses, expenses,
fines, penalties and all other liabilities whatsoever that the Corporation may
incur (or may be claimed against the Corporation by any person whatsoever) by
reason of any untrue statement or alleged untrue statement relating to the
Borrower of any material fact contained or incorporated by reference in the
preliminary official statement or the final official statement, or supplements
thereto, relating to the Variable Rate Bonds, or the omission or alleged
omission to state therein a material fact relating to the Borrower necessary to
make such statements, in the light of the circumstances under which they are or
were made, not misleading (excluding any materials expressly provided for
inclusion therein by the Corporation or Financial Guaranty); provided that the
Borrower shall not be required to indemnify the Corporation for any costs of
defending third party claims or liabilities to the extent, but only to the
extent, such claims or liabilities arise due to the willful misconduct or
negligence of the Corporation or are attributable to information concerning the
Corporation or Financial Guaranty provided by them expressly for use in the
preliminary official statement or the final official statement, or supplements
thereto relating to the Variable Rate Bonds or to the information contained in
or omitted from the Corporation's Prospectus, Prospectus Supplement or
Registration Statement. The Corporation will promptly notify the Borrower upon
becoming aware of any claims or liabilities giving rise to a right to
indemnification hereunder and will cooperate with the Borrower in the defense of
such claims or liabilities. Nothing in this Section is intended to limit the
Borrower's obligations contained in other parts of this Agreement. The Borrower
will not refer to the Corporation in any materials used in marketing the
Variable Rate Bonds without the prior written consent of the Corporation.
5. Term of the Standby Bond Purchase Agreement. As further provided
in the Standby Bond Purchase Agreement, the term of the Standby Bond Purchase
Agreement shall be until the termination of the Purchase Period. Any termination
by the Corporation or by the Trustee shall be subject to the Borrower's payment
in full of all sums due pursuant to this Agreement and, notwithstanding a
termination of the Standby Bond Purchase Agreement by either the Corporation or
the Trustee, the provisions of Section 4 shall survive such termination and
shall remain in full force and effect.
6. Borrower Representations and Warranties. The Borrower represents
and warrants that, as of the date on which this Agreement is executed:
(a) Existence. The Borrower a [describe type of entity]
formed pursuant to laws of the State of __________ and is validly organized and
existing in accordance with the laws of the State of __________, with full right
and power to issue, execute, deliver and perform its obligations under this
Agreement and each Related Document to which the Borrower is a party.
(b) Authorization; Contravention. The execution, delivery
and performance by the Borrower of this Agreement and each Related Document to
which the Borrower is a party are within the Borrower's powers, have been duly
authorized by all necessary action, require no action by or in respect of, or
filing with, any governmental body, agency or official by the Borrower and do
not violate or contravene, or constitute a default under, any provision of
applicable law, charter, ordinance or regulation or of any material agreement,
judgment,
3
injunction, order, decree or other instrument binding upon the Borrower except
as set forth in the Authorizing Document, or result in the creation or
imposition of any lien or encumbrance on any asset of the Borrower except for
liens in favor of the Trustee as contemplated by the Authorizing Document.
(c) Binding Effect. This Agreement and each Related Document
to which Borrower is a party constitute a valid, binding and enforceable
agreement of the Borrower, subject to applicable laws (and equitable principles)
affecting creditors' rights generally.
(d) No Default. The Borrower is not, in any material
respect, in breach of or default under its charter or other similar documents,
or any applicable law or administrative regulation of the State or of the United
States, relating, in each case, to the issuance of debt securities by it, or any
applicable material judgment, decree, loan agreement, note, resolution,
ordinance, agreement or other instrument to which it is a party or is otherwise
subject.
(e) Litigation. Except as disclosed in the official
statement relating to the Variable Rate Bonds, there is no action, suit or
proceeding pending against, or to the knowledge of the Borrower threatened
against or affecting, the Borrower before any court or arbitrator or any
governmental body, agency or official in which there is a reasonable possibility
of an adverse decision which could materially adversely affect the financial
position or results of operations of the Borrower or which in any manner draws
into question the validity or enforceability of this Agreement or any Related
Document.
7. Governing Law. This Agreement shall be construed in accordance
with and governed by the law of the State of __________. Concurrently with the
execution and delivery hereof, the Borrower shall deliver an opinion of its
counsel, addressed to, and in form and substance acceptable to, the Corporation,
as to the power, authority and valid and binding effect of this Agreement upon
the Borrower, substantially in the form attached as Exhibit A.
8. Covenants. The Borrower agrees that so long as the Corporation
has a Commitment hereunder or any amount payable hereunder or under any Variable
Rate Bond purchased by the Corporation pursuant to this Agreement remains
unpaid:
(a) Information. The Borrower will deliver to the
Corporation as soon as possible and in any event within 180 days after the end
of each Fiscal Year of the Borrower, a balance sheet of the Borrower as of the
end of such Fiscal Year and the related statements of revenue and expense, all
certified as to the fairness of presentation, generally accepted accounting
principles and consistency by a firm of independent certified public
accountants.
(b) No Amendment Without Consent of the Corporation. Without
the prior written consent of the Corporation, the Borrower will not agree or
consent to any amendment, supplement or modification of any Related Document,
nor waive any provision thereof; provided, however, that the Borrower may agree
or consent to amendments to the Variable Rate Bonds and the Authorizing Document
to the extent that (i) such amendments are permitted under the Authorizing
Document without the consent of Bondholders or the provider of liquidity for the
Variable Rate Bonds, and (ii) such amendments do not materially adversely affect
the Corporation or the performance of this Agreement and the Standby Bond
Purchase Agreement,
4
and may agree or consent to amendments to any Related Document to the extent
such amendments do not materially adversely affect the Corporation or the
performance of this Agreement and the Standby Bond Purchase Agreement.
(c) Maintenance of Remarketing Agent. The Borrower will
cause the Issuer to at all times have a Remarketing Agent performing the duties
thereof contemplated by the Authorizing Document.
9. Disclosure. The Corporation hereby agrees to (i) provide the
Borrower with any disclosure information which the Borrower may reasonably
request relating to the Corporation for inclusion in the preliminary official
statement and the final official statement relating to the Variable Rate Bonds,
including any prospectus or prospectus supplement for the initial offering, or
any reoffering circular relating to the Variable Rate Bonds, and (ii) promptly
provide to the Remarketing Agent any documents, including any prospectus or
prospectus supplements, as may, in the opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx
LLP or other special securities counsel acceptable to the Remarketing Agent and
the Borrower, be required for the remarketing of the Variable Rate Bonds.
10. Counterparts. This Agreement may be signed in counterparts, each
of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
[Name of Borrower], as Borrower
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
[Insert Address and
Contact information]
Attention:
----------------------------
Fax Number:
---------------------------
Telephone Number:
---------------------
[Name of Issuer]
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
[Insert Address and
Contact information]
Attention:
----------------------------
Fax Number:
---------------------------
Telephone Number:
---------------------
FGIC SECURITIES PURCHASE, INC.
By:
-----------------------------------
Name:
---------------------------------
Title: Vice President
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Copy: Senior Counsel, Public Finance
Fax Number: (000) 000-0000
Telephone number: (000) 000-0000
6
EXHIBIT A
OPINION OF COUNSEL FOR THE BORROWER
__________, 20__
FGIC Securities Purchase, Inc.
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: $__________ [Issuer] [Name of Bonds] ([Insert name of Conduit Project)
Dear Ladies and Gentlemen:
We have acted as counsel for ____________________ (the "Borrower") in
connection with (i) the Standby Bond Purchase Agreement dated as of __________,
20__ (the "Standby Bond Purchase Agreement") between FGIC Securities Purchase,
Inc. and _________________, as Trustee (the "Trustee"), (ii) the Payment
Agreement among the Borrower, the Issuer and FGIC Securities Purchase, Inc.
dated as of __________, 20__ (the "Payment Agreement"), (iii) a [Name of
Authorizing Document] dated as of __________, 20__, between the Issuer and the
Trustee (the "Authorizing Document"), as in effect on the date hereof and (iv) a
Loan Agreement dated as of __________, 20__, between the Issuer and the
Borrower. The Standby Bond Purchase Agreement, the Payment Agreement, the
Authorizing Document, the Loan Agreement and all other documents (to which the
Borrower is a party) relating to the issuance of the captioned Bonds or the
security therefor are hereinafter referred to as the "Agreements". You have
requested our opinion as to certain matters concerning the Agreements. Terms
defined in the Standby Bond Purchase Agreement or in the Payment Agreement are
used herein as defined therein.
Based on our examination of existing law, the Agreements, such legal
proceedings and such other documents as we deem necessary to render this
opinion, we are of the opinion that:
1. The Payment Agreement has been duly executed and delivered by
the Borrower pursuant to due authorization and constitutes the valid and binding
agreement of the Borrower enforceable against the Borrower in accordance with
its terms, except as (x) limited by insolvency, reorganization, receivership,
conservatorship, liquidation, moratorium or other similar laws affecting the
enforcement of creditors' rights generally as such laws would apply in the event
of the insolvency, reorganization, receivership, conservatorship or liquidation
of, or other similar occurrence with respect to, the Borrower or in the event of
any moratorium or similar occurrence affecting the Borrower, and (y) limited by
equitable principles (regardless of whether the issue of enforceability is
considered in a proceeding in equity or at law).
2. The execution and delivery by the Borrower of, and the
performance by the Borrower of its obligations under, the Payment Agreement will
not contravene any provision of law applicable to the Borrower or any material
agreement or other instrument binding upon the
Borrower known to us, and no consent, approval or authorization of any
governmental body or agency (which has not been obtained) is required for the
performance by the Borrower of its obligations under the Payment Agreement.
3. Except as disclosed in the Official Statement relating to the
Variable Rate Bonds, there is no action, suit or proceeding pending against, or
to the best of our knowledge, threatened against, the Borrower before any court
or arbitrator or any governmental body, agency or official in which there is a
reasonable possibility of an adverse decision which could materially adversely
affect the financial position or results of operations of the Borrower or which
in any manner draws into question the validity or enforceability of the
Agreements.
Very truly yours,
------------------------------------
Counsel for the Borrower
2
STANDBY BOND PURCHASE AGREEMENT
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS................................................................1
SECTION 1.01. Definitions...........................................................1
SECTION 1.02. Incorporation of Certain Definitions by Reference.....................4
ARTICLE II COMMITMENT TO PURCHASE VARIABLE RATE BONDS.................................4
SECTION 2.01. Commitment to Purchase Variable Rate Bonds............................4
SECTION 2.02. Method of Purchasing..................................................4
SECTION 2.03. Termination of Commitment.............................................5
SECTION 2.04. Sale of Variable Rate Bonds...........................................5
SECTION 2.05. Reduction of Available Commitment.....................................6
ARTICLE III CONDITIONS.................................................................6
SECTION 3.01. Conditions to Effectiveness...........................................6
SECTION 3.02. Conditions to Purchase................................................7
ARTICLE IV REPRESENTATIONS AND WARRANTIES.............................................7
SECTION 4.01. Existence.............................................................7
SECTION 4.02. Authorization; Contravention..........................................7
SECTION 4.03. Binding Effect........................................................7
SECTION 4.04. Corporate Existence...................................................8
SECTION 4.05. Authorization; Binding Effect.........................................8
SECTION 4.06. Contravention; No Default.............................................8
SECTION 4.07. Litigation............................................................8
ARTICLE V COVENANTS..................................................................8
SECTION 5.01. No Amendment of GE Capital Agreement Without Consent
of Issuer, Borrower and Trustee.......................................8
SECTION 5.02. Other Liquidity Facilities............................................9
SECTION 5.03. Disclosure............................................................9
ARTICLE VI DEFAULTS...................................................................9
SECTION 6.01. Events of Default.....................................................9
ARTICLE VII MISCELLANEOUS.............................................................11
SECTION 7.01. Notices..............................................................11
SECTION 7.02. No Waivers...........................................................11
SECTION 7.03. Amendments and Waivers...............................................11
SECTION 7.04. Successors and Assigns...............................................11
SECTION 7.05. Term of this Agreement...............................................12
SECTION 7.06. Governing Law........................................................12
SECTION 7.07. Counterparts.........................................................12
SECTION 7.08. Trustee May Act through Agents and Appoint Co-Trustees...............12
-i-
TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 7.09. Beneficiaries...............................................................12
SECTION 7.10. Capacity of Trustee.........................................................13
SECTION 7.11. Responsibility of Corporation for Trustee Actions...........................13
EXHIBIT 1 - NOTICE OF PURCHASE
EXHIBIT 2 - TERMINATION NOTICE
EXHIBIT 3 - NOTICE ADDRESSES
EXHIBIT 4 - PAYMENT AGREEMENT
-ii-
