05-13-2020 Council Packet - Laserfiche WebLink

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D-3 (b) a Certificate of an Independent certified public accountant or firm of certified public accountants to the effect that, based upon the audited financial statements of the Borrower with respect to the fiscal year of the Borrower most recently completed, such fiscal year in no event to have been completed prior to September 30, 2023: (i) the Borrower’s Income Available for Debt Service (such Income Available for Debt Service in no event to include contributions, donations or transfers from affiliates), was at least equal to 130% of Total Principal and Interest Requirements; provided that, for purposes of this requirement, the Total Principal and Interest Requirements with respect to the Series 2020 Bonds in any fiscal year shall be equal to the maximum principal of and interest on the Series 2020 Bonds payable in any fiscal year on any Series 2020 Bonds then outstanding; and (ii) As of the final day of such fiscal year, the Borrower shall have had not less than 60 Days Cash on Hand. Use of Defined Terms. For all purposes of termination of the Limited Guaranty, the terms “Income Available for Debt Service” and “Days Cash on Hand” shall not include contributions, donations or transfers from any Affiliate. See “DEFINITIONS OF CERTAIN TERMS” in this Appendix D. Set-Offs, Counterclaims Except as specifically described above under the caption “Guaranty Limitation,” no set-off, counterclaim, reduction, or diminution of the obligation, or any defense of any kind or nature which the Limited Guarantor has or may have against the Issuer, the Borrower, the Trustee or any Bondholder shall be available under the Limited Guaranty to such Limited Guarantor against the Trustee. Limitation of Trustee’s Duties The Trustee shall not be obligated to expend or risk the Trustee’s own funds or otherwise incur any financial liability in the taking of any action under the Limited Guaranty, if the Trustee has reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to the Trustee, except liability which is adjudicated to have resulted from the Trustee’s negligence or willful misconduct. Remedies (a) The Holders of a majority in aggregate principal amount of the then outstanding Bonds may direct the time, method and place of conducting and proceeding for exercising any remedy available to the Trustee. However, (a) the Trustee may refuse to follow any direction that conflicts with law or the Limited Guaranty, that the Trustee determines may be unduly prejudicial to the rights of other Holders or that may involve the Trustee in personal liability, and (b) the Trustee may take other action not inconsistent with such direction. Notwithstanding any provision to the contrary in the Limited Guaranty, the Trustee is under no obligation to exercise any of its rights or powers under the Limited Guaranty at the request of any holder unless such holder shall offer to the Trustee security and indemnity satisfactory to the Trustee against any loss, liability or expense. (b) The Limited Guarantor agrees to pay all the costs, expenses, and fees (including all reasonable attorneys’ fees) which may be incurred by the Trustee or the Bondholders in enforcing or attempting to enforce the Limited Guaranty following any Event of Default thereunder, whether the same shall be enforced by suit or otherwise. The payment of such costs of collection shall be in addition to the required payments under Section 2.1(a) of the Limited Guaranty and such costs shall not be included in the limitation on payments of the Limited Guarantor set forth in Section 2.1(b) of the Limited Guaranty.