financing lease
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FINANCING LEASE Prepared by: Daniel R. Lauro, Esq. BotkinRose PLC 3190 Peoples Drive Harrisonburg, Virginia 22801 VSB #73131 Tax Map Reference Number: #60-A-20A
THIS FINANCING LEASE IS EXEMPT FROM RECORDING TAXES UNDER SECTION 58.1-807 OF THE CODE OF VIRGINIA OF 1950, AS AMENDED, PURSUANT TO SECTION 58.1-811E.
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This FINANCING LEASE is made as of ___________, 2019, between the ECONOMIC
DEVELOPMENT AUTHORITY OF GREENE COUNTY, VIRGINIA, a political subdivision of the Commonwealth of Virginia (formerly known as the Industrial Development Authority of Greene County, Virginia, the “Authority”), index as Grantor, and the COUNTY OF GREENE, VIRGINIA, a political subdivision of the Commonwealth of Virginia (the “County”), index as Grantee.
RECITALS:
WHEREAS, the Authority is a political subdivision of the Commonwealth of Virginia (the “Commonwealth”) empowered by the Industrial Development and Revenue Bond Act, Chapter 49, Title 15.2 of the Code of Virginia, 1950, as amended (the “Act”), to issue its bonds or notes, among other things, to finance the acquisition, construction, improvement, and equipping of facilities for use by governmental entities in the Commonwealth for the benefit of the inhabitants of the Commonwealth and the County, through the increase of commerce or through the promotion of their safety, health, welfare, convenience or prosperity, among other things; and WHEREAS, the Authority is also authorized to pledge, among other things, all or any part of its revenues, including rental revenues, in order to provide all or any portion of the security for the payment of its revenue obligations; and
WHEREAS, at a meeting on June 11, 2019 the Board of Supervisors of Greene County, Virginia (the “Board of Supervisors”) stated its intention for the County to (a) acquire, construct, reconstruct, expand, and equip capital projects in the County, including but not limited to visitor center facilities and related furniture, fixtures, and equipment to be located in the County at 9157 Seminole Trail, Ruckersville, Virginia 22968, and (b) pay costs of issuance in connection with
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such undertakings by the County (all capital projects for such purposes in the County being referenced herein as the “Project”); and
WHEREAS, the County requested the assistance of the Authority to obtain financing
through a bond for the County to undertake and finance the project; and WHEREAS, the United States of America, acting through Rural Housing Service, an agency of the United States Department of Agriculture (“RHS” or the “Bondholder”) offered to provide long-term, taxable lease financing for the capital costs of the Project pursuant to the provisions of the Letter of Conditions, dated June 5, 2019 and amended on July 11, 2019, from RHS to the Authority as conduit issuer for the benefit of the County, relating to the lease financing and the Bond (the “Letter of Conditions”); and WHEREAS, on ________, 2019 (being the date of recordation hereof, and referenced herein as the “Closing Date”), the Bondholder has purchased the $1,040,000 Economic Development Authority of Greene County, Virginia Lease Revenue Bond (Visitor Center Project), Series 2019 (the “Bond”), in order for the Authority and the County to provide financing to undertake the Project; and
WHEREAS, the Bond is authorized and issued by the Authority pursuant to the Act, and, further, pursuant to the terms of that certain authorizing resolution duly approved by the Authority on July 16, 2019, including an RHS Form 1942-47 Resolution, after the holding of a duly noticed public hearing (together, the “Authorizing Resolution”), as requested by the Board of Supervisors and confirmed by the Board of Supervisors in its resolution duly approved by the Board of Supervisors on July 23, 2019 (the “County Resolution”), and by a Bond Purchase and Loan Agreement, dated as of ________, 2019 (the “Agreement”) by and among the Authority, the Bondholder, and the County; and
WHEREAS, under the Authorizing Resolution and the County Resolution, respectively,
and the Agreement, among other things, the Authority and County have confirmed the lease of the property described on Exhibit A attached hereto (the “Leased Property”) from the County to the Authority pursuant to the terms of the Lease to be dated on or around ________, 2019 (the “Lease”) and recorded on the Closing Date of the Bond in the Clerk’s Office of the Circuit Court of the County (“Clerk’s Office”); and
WHEREAS, the Authority will lease back the Leased Property to the County pursuant to
the terms of this Financing Lease, by and between the Authority and the County, to be recorded in the Clerk’s Office immediately subsequent to the Lease; and
WHEREAS, under the terms of this Financing Lease, including the provisions describing
the limitations regarding receipt of sufficient appropriations from the Board of Supervisors therefor, the County agrees, among other things, to pay Basic Rent (as defined in this Financing Lease) to the Authority, which payments shall mirror the principal and interest due on the Bond, among other payments to the Authority, if any; and
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WHEREAS, it is to be understood that the obligations of the County under this Financing Lease shall constitute a current expense of the County, subject to annual appropriations being made therefor by the Board of Supervisors and, accordingly, that subject to the Assignment (defined below), this Financing Lease may be terminated if funds are not appropriated by the Board of Supervisors to make payments thereunder in subsequent years, all as particularly described in this Financing Lease; and
WHEREAS, the obligations of the County to make Rental Payments under this Financing
Lease shall not constitute a debt of the County within the meaning of any constitutional or statutory limitation nor a liability of or a lien or charge upon funds or property of the County beyond any fiscal year for which the Board of Supervisors has appropriated funds to make such payments; and
WHEREAS, the Bond is a limited obligation of the Authority in accordance with the
provisions of the Act, the principal of and interest on which is payable solely out of the rental revenues of the Authority as provided under the Bond, and, further, under the lease financing arrangement described herein pursuant to the Basic Documents (defined below); and
WHEREAS, the County and the Authority will also convey an Assignment of Rents and
Leases with respect to the Leased Property, to be dated on or around ________, 2019, for the benefit of the Bondholder (the “Assignment”), to be recorded in the Clerk’s Office immediately after the Lease and this Financing Lease in order to, among other things, duly assign the Authority’s rights to receipt of Rental Payments (as described in the Agreement) to the Bondholder; and
WHEREAS, pursuant to the County Resolution, the County has approved a Leasehold
Deed of Trust and Security Agreement, dated as of _________, 2019 (“Deed of Trust”) from the County and/or Authority to the named trustee therein, to be recorded in the Clerk’s Office, in order to mortgage the Leased Property in favor of the Bondholder and thereby induce the Bondholder to purchase the Bond from the Authority and provide additional security for the payment thereof; and
WHEREAS, pursuant to the terms hereof, and subject to the first priority liens of the Bondholder as set forth in the Deed of Trust and the Assignment, the County shall continue to lease the Leased Property, as required under the Agreement, pursuant to the provisions of the Lease; and
WHEREAS, as additional security for the payment of the principal of and interest on the Bond, among other obligations of the Authority and the County to the Bondholder described thereunder, the Board of Supervisors, pursuant to the County Resolution, has authorized the execution and delivery of a non-binding moral obligation Support Agreement to appropriate such amounts as may be requested from time to time pursuant to this Financing Lease, to the fullest degree and in such manner as is consistent with the Virginia Constitution and laws of the Commonwealth of Virginia (the “Support Agreement”), in order for the County to pay, among other amounts, the Rental Payments (as defined in this Financing Lease) for the payment of the County’s obligations under this Financing Lease, and the funding and maintenance of a Debt Service Reserve Fund, as set for the in the Letter of Conditions and the Agreement, and has recommended that future Boards of Supervisors do likewise; and
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WHEREAS, the transactions contemplated hereunder shall be evidenced by the following
documentation:
A. The Agreement; B. The Bond, bearing interest and being payable as provided therein;
C. The Deed of Trust;
D. The Lease; E. This Financing Lease; F. The Assignment; G. The Support Agreement; and
For convenience, the Agreement, the Deed of Trust, the Lease, this Financing Lease, the Assignment, and the Support Agreement together with any other certificates, agreements, and instruments in connection with the Bond are collectively referenced hereinafter as “Basic Documents;” and WHEREAS, the Authority intends to loan the proceeds from the sale of the Bond to the County in accordance with the provisions of the Act and pursuant to the Agreement; and
WHEREAS, the County now proposes to enter into this Financing Lease with the Authority in order for the Authority to leaseback the Leased Property to the County and the County to acquire such leasehold interest therein, among other things, all as further described below.
AGREEMENT
The Authority was duly created pursuant to the Act, and has duly determined to acquire a leasehold interest from the County in the Leased Property as described on Exhibit A attached hereto located in the County pursuant to the terms of the Lease, all as described above and for such purposes, with respect to the use of the Leased Property by the County in accordance with the requirements of the Lease. Accordingly, as provided under the Act, and subject to the priority liens of the Bondholder as described in the Deed of Trust and the Assignment, the Authority now desires to lease back the Leased Property to the County pursuant to the terms and provisions hereof, in order for the Authority to provide for the issuance and sale of the Bond to be payable from rental payments received from the County pursuant to this Financing Lease and from other moneys which may be made available for such purpose by the County.
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ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.1. Definitions. All words and terms defined in the Agreement shall have the same meanings in this Financing Lease, unless otherwise defined herein. All words and terms defined previously in this Financing Lease shall have the meanings described herein. In addition, the following words and terms have the following meanings in this Financing Lease, unless the context requires otherwise: “Additional Rent” means the Additional Rent that is payable pursuant to Section 5.2(b). “Basic Rent” means the Basic Rent that is payable pursuant to Section 5.2(a). “Event of Default” means any of the events enumerated in Section 10.1 hereof. “Event of Nonappropriation” means any failure by the Board of Supervisors to adopt by the first day of any related fiscal year, a budget that includes an appropriation for Rental Payments or Required Payments as described in Section 5.7. “Financing Lease” means this Financing Lease, as it may be modified, altered, amended, and supplemented in accordance with its terms and the terms of the Agreement. “Fiscal Year” means, whether in the context of the Authority or the County, the period of twelve months established as an annual accounting period, commencing July 1 each year and ending on June 30 of the year thereafter. “Lease Term” means the duration of the leasehold estate created in this Financing Lease as specified in Section 5.1 hereof. “Net Proceeds” means the gross proceeds of any recovery on any insurance policy or alternative arrangement or substitute arrangements or condemnation or eminent domain award remaining after payment of attorney’s fees, fees, and expenses of the Bondholder and other expenses incurred in the collection of such gross proceeds.
“Payment of the Bond” means payment in full of the Bond and the making in full of all other Required Payments due and payable at the time of such payment. “Permitted Encumbrances” means, as of any particular time as to the Leased Property, (i) liens for ad valorem taxes and special assessments not then delinquent, if any, (ii) liens of taxes and assessments, if any, which are delinquent, but the validity of which is being contested in good faith and for which the Authority or the County has set aside adequate reserves for payment, unless, as a result of the lien, the Leased Property or the interest of the Authority or the County in it may be in danger of being lost or forfeited, (iii) any security interest or other liens created by the Basic Documents or any supplemental agreement hereto, if any, (iv) mechanics’ and materialmen’s liens subject to Section 8.5 hereof, (v) such defects, irregularities, encumbrances, easements, rights of way (including for the purpose of utilities), and clouds on title as normally exit with respect to
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property owned or leased by the County for its purposes and as will not, in the opinion of counsel, impair the intended use of the Leased Property, (vi) present or future valid zoning laws and ordinances, and (vii) the priority liens in favor of the Bondholder represented by the terms and provisions of the Deed of Trust and the Assignment.
“Rental Payments” means the sum of the Basic Rent and the Additional Rent set forth in Section 5.2 hereof.
“Required Payment(s)” shall mean any payment of money required under the terms of the
Basic Documents to be made by the County for its own account or for the account of the Authority. Section 1.2. Rules of Construction. Except where the context otherwise requires, (i) singular words connote the plural number as well as the singular and vice versa and (ii) pronouns inferring the masculine gender include the feminine and neuter genders and vice versa. All references to particular articles or sections are references to articles or sections of this Financing Lease unless otherwise indicated. The headings in this Financing Lease are solely for convenience of reference and do not constitute a part of this Financing Lease or affect its meaning, construction or effect.
ARTICLE II REPRESENTATIONS
Section 2.1. Representations by the Authority. The Authority makes the following representations as the basis for its undertakings under this Financing Lease: (a) The Authority is a political subdivision of the Commonwealth, duly created under the Act. (b) The undertaking by the Authority to provide for the lease of the Leased Property from the County pursuant to the Lease, and lease back of the Leased Property to the County pursuant to the terms hereof, has been duly authorized, as required by the Act, by the affirmative vote of at least a majority of the members of the Board of Directors of the Authority present at a duly held public meeting at which a quorum was present and acting throughout. (c) The Authority (i) has the power to enter into and to carry out its obligations under the Basic Documents, (ii) by proper action has duly authorized the execution and delivery of and performance of its obligations under the Basic Documents, and (iii) simultaneously with its execution and delivery of this Financing Lease, has duly executed and delivered the other Basic Documents to which it is a party on the date hereof to the Bondholder. (d) The Authority is not in default under or in violation of the Basic Documents, and the execution, delivery, and compliance by the Authority with the terms and conditions of the Basic Documents will not conflict with or constitute or result in a default under or violation of the Act or any other existing law, rule, or regulation applicable to the Authority.
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(e) The execution, delivery, and compliance by the Authority with the terms and conditions of the Basic Documents will not conflict with or constitute or result in a default under or violation of any indenture, mortgage, deed of trust, lien, lease, contract, note, order, judgment, decree, or other agreement, instrument, or restriction of any kind to which the Authority or any of its assets is subject. (f) No further approval, consent, or withholding of objection on the part of any regulatory body or any federal, state or local official is required in connection with (i) the execution or delivery of, or compliance by the Authority with the terms and conditions of, the Basic Documents, or (ii) the pledge and assignment made by the Authority to the Bondholder under the Agreement, the Deed of Trust, and the Assignment, provided that no representation is made with respect to any federal or state securities or blue sky laws or regulations. (g) To the Authority’s knowledge, no litigation, inquiry, or investigation of any kind in or by any judicial or administrative court or agency is pending or threatened against it with respect to (i) the creation and existence of the Authority, (ii) its authority to execute and deliver the Basic Documents, (iii) the validity or enforceability of any of such instruments, (iv) the title of any officer of the Authority who executed such instruments, or (v) any authority or proceedings related to the execution and delivery of such instruments on behalf of the Authority (and no such authority or proceeding has been repealed, revoked, rescinded or amended). Section 2.2. Representations of the County. The County makes the following representations as the basis for its undertakings under this Financing Lease: (a) The County is a duly created and validly existing political subdivision of the Commonwealth of Virginia.
(b) The undertaking by the County to provide for the lease of the Leased Property to the Authority pursuant to the Lease, and lease back of the Leased Property from the Authority pursuant to the terms hereof, has been duly authorized by the affirmative vote of at least a majority of the members of the Board of Supervisors present at a duly held public meeting at which a quorum was present and acting throughout.
(c) The County (i) has the power to enter into and to carry out its obligations under the Basic Documents, (ii) by proper action has duly authorized the execution and delivery of and performance of its obligations under the Basic Documents, and (iii) simultaneously with its execution and delivery of this Financing Lease, has duly executed and delivered the other Basic Documents to which it is a party on the date hereof to the Bondholder. (d) The County is not in default in the payment of the principal of, or interest on, any of its indebtedness for borrowed money, and is not in default under any instrument under, and subject to, which any indebtedness has been incurred, and to the County’s knowledge, no event has occurred and is continuing under the provisions of any such agreement that with the lapse of time or the giving of notice, or both, would constitute such an event of default.
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(e) The County is not in default under or in violation of, and the execution, delivery, and compliance by the County with the terms and conditions of this Financing Lease and the Lease, and any other Basic Documents will not conflict with, or constitute or result in a default under or violation of, (i) any law, rule, or regulation applicable to the County or (ii) any indenture, mortgage, deed of trust, lien, lease, contract, note, order, judgment, decree or other agreement, instrument, or restriction of any kind to which the County or any of its assets is subject, and to the County’s knowledge, no event has occurred and is continuing that with the lapse of time or the giving of notice, or both, would constitute or result in such a default or violation. (f) No further consent or withholding of objection on the part of any regulatory body or any federal or local official is required in connection with (i) the execution and delivery of the Basic Documents to which the County is a party, or (ii) the performance by the County of its obligations thereunder. (g) To the best of the County’s knowledge, no litigation, inquiry, or investigation of any kind or by any judicial or administration court or agency is pending or threatened against it in which any liability of the County is not adequately covered by insurance or in which any judgment or order would have a material adverse effect upon the activities or assets of the County or would affect the ownership of the Leased Property by the County, or the acquisition, construction, or equipping of the Project or the validity or performance of the County’s obligations under any of the Basic Documents. (h) The Board of Supervisors has determined that the lease of the Leased Property by the Authority to the County pursuant to this Financing Lease, shall enable the County to provide visitor center facilities for use by the County, which undertakings are necessary or convenient in order for the County to assure the continuing welfare and prosperity of the inhabitants of the County and the Commonwealth of Virginia and, therefore, will serve a function that is necessary and essential to the proper, efficient, and economic operation of the County. (i) The County represents and warrants that to the County’s knowledge the Leased Property never has been, and never will be so long as this Financing Lease or the Lease remains in effect, used for the generation, collection, manufacture, storage, treatment, disposal, release or threatened release of any hazardous substance, as those terms are defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. (“CERCLA”), Superfund Amendments and Reauthorization Act (“SARA”), applicable state laws, or regulations adopted pursuant to either of the foregoing, or any other similar laws as may be applicable from time to time. The County agrees to comply with any federal, state, or local law, statute, ordinance or regulation, court or administrative order or decree or private agreement regarding materials which require special handling in collection, storage, treatment or disposal because of their impact on the environment. The County, to the fullest extent permitted by law, agrees to indemnify and hold the Authority and the Bondholder harmless against any and all claims and losses and expenses and costs resulting from a breach of this paragraph, and the County will pay or reimburse the Authority and the Bondholder for any reasonable costs and expenses incurred by either of them in the remediation of any default or breach by the County of the provisions of this paragraph. This obligation to indemnify, to the extent permitted by law, shall survive the payment of all other amounts due hereunder.
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ARTICLE III LEASE OF PROPERTY
Section 3.1. Lease of Property. The Authority demises and leases the Leased Property to the County, and the County leases the Leased Property from the Authority at the rate of the Rental Payments set forth in Section 5.2 hereof and in accordance with the provisions of this Financing Lease.
ARTICLE IV APPLICATION OF PROCEEDS
Section 4.1. Application of Proceeds of Bond. In order to provide funds for payment of the Costs of the Project, the proceeds of the Bond will be applied on the Closing Date as provided in the Agreement.
ARTICLE V LEASE TERM AND RENT PROVISIONS
Section 5.1. Term of Lease. The Lease Term for the Project will commence on the Closing Date, being the date of issuance of the Bond by the Authority to the Bondholder and, unless sooner terminated in accordance with this Financing Lease or pursuant to the exercise by the County of its purchase option pursuant to Section 5.11 hereof, and terminate on the earlier of (1) _________, 2059 (provided that all Rental Payments due hereunder and any Required Payments, as described in the Agreement, have been paid on such date), or (2) Payment of the Bond, in full, and payment of any Required Payments as described in the Agreement. Section 5.2. Payment of Rental Payments. (a) Subject to Section 5.7(b) and to the extent allowed by law, the County will pay to the Authority the following Basic Rent for the Leased Property on the dates and in the amounts as follows: (i) Commencing on _________, 2020, and continuing annually on __________ thereafter, the County shall pay Basic Rent in the amount of $48,704, equaling principal and interest due on the Bond hereunder; and (ii) All principal of and unpaid interest on the Bond shall be payable on _____, 2059, when, if not sooner paid, all amounts due hereunder shall be due and payable as Basic Rent hereunder, subject, however, to any acceleration, prepayment, or redemption on the Bond, as provided therein.
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(b) Subject to Section 5.7 and to the extent allowed by law, the County will pay when due as Additional Rent for the Leased Property, (i) any cost or expense necessary to cancel and discharge the Agreement upon payment of the Bond, all as provided therein and in the Agreement, and all other amounts which the County has assumed or agreed in this Financing Lease to pay, (ii) any amounts due to the Authority or the Bondholder under the Assignment for its expenses, and (iii) any other amounts constituting Required Payments as described in the Agreement. Section 5.3. Interest upon Nonpayment of Rental Payments. Any installment of Basic Rent not paid on or before its due date will bear interest from and after such due date until paid at the rate per annum that will yield the amount necessary to pay the interest due on the Bond on the date such interest or principal and interest shall be due and payable. Section 5.4. Prepayment or Redemption. The County shall have the option to make prepayments under this Financing Lease as described herein. The Bond is subject to optional prepayment, in whole or in part, and redemption by the Authority (as specifically provided therein), acting upon instructions of the County, upon thirty (30) days’ written notice of prepayment, which notice may be waived by the Bondholder. Upon request of the County, the Authority shall cause any such optional prepayment or redemption of the Bond, in the event the County exercises its option to make prepayments under this Financing Lease, or at the direction of the County from any money lawfully available for such purpose, to pay the principal amount of the Bond plus interest accrued thereon to the redemption date, and such payments shall be considered prepayments under this Financing Lease. If the Bond, or a portion thereof, is called for redemption, a notice of redemption shall be mailed not less than thirty (30) days before the date fixed for redemption, to the Bondholder as the registered owner of the Bond, which notice may be waived, at the owner’s address as it last appears on the registration books maintained by the Secretary/Treasurer of the Authority. Refunds, extra payments, and loan proceeds obtained from outside sources for the purpose of paying down the debt under the Bond shall, after payment of interest, be applied to the installments last to become due and shall not affect the obligation to pay the remaining installments as scheduled. Section 5.5. Payment of Authority Expenses. Subject to Section 5.7 hereof, the County will pay (or will cause to be paid) all costs, fees and expenses incurred by the Authority (including attorney’s fees) in connection with: (a) the authorization, issuance, and sale of the Bond; (b) the ownership, occupation, operation, or use of the Leased Property; (c) prepayment or other redemption of the Bond; and
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(d) expenses incurred by the Authority at the request of the County with respect to the Leased Property or otherwise paid or incurred by the Authority by reason of the Bond being outstanding or pursuant to the requirements of the Basic Documents. Section 5.6. Indemnification. To the fullest extent permitted by law, the County, at all times, shall protect, indemnify, and save harmless the Authority and the Bondholder (collectively, “Indemnitees”) from and against all liabilities, obligations, claims, damages, penalties, fines, losses, costs, and expenses (including, without limitation, reasonable attorney’s fees) for all acts or failure to act (or alleged failure to act) in connection with the Leased Property, the issuance and servicing of the Bond and the maintenance and preservation of the Leased Property, including without limitation: (i) all amounts paid in settlement of any litigation commenced or threatened against the Indemnitees, if such settlement is effected with the written consent of the County; (ii) all expenses reasonably incurred in the investigation of, preparation for or defense of any litigation, proceeding or investigation of any nature whatsoever, commenced or threatened against the County, the Leased Property, or the Indemnitees; (iii) the full amount of any judgments, penalties, fines, damages, assessments, indemnities, or contributions; and (iv) the reasonable fees and expenses of attorneys, auditors, and consultants. The foregoing indemnity shall be effective only to the extent of any loss that may be sustained by the Indemnitees in excess of the Net Proceeds received from any insurance carried with respect to such loss, and the benefits of this Section shall not inure to any person other than the Indemnitees. Nothing contained herein shall require the County to indemnify the Indemnitees for any claim or liability resulting from their gross negligence or willful or wrongful acts or, with respect to the Bondholder, resulting from its gross negligence. All references in this Section to the Indemnitees shall include their members, directors, officers, employees, and agents. Section 5.7. Nature of Obligations of County. (a) Except as otherwise provided in this Section, the obligation of the County to pay Rental Payments and all other amounts provided for in this Financing Lease, including any other amounts that shall constitute Required Payments as described in the Agreement, and to perform its obligations under this Financing Lease and the other Basic Documents will be absolute and unconditional, and such Rental Payments and other amounts will be payable without any rights of set-off, recoupment, or counterclaim that the County might have against the Authority, the Bondholder, or any other person and whether or not the Leased Property is used or occupied by the County or any tenant of the County, or available for use or occupancy by the County or any tenant of the County. (b) While recognizing that it is not empowered to make any binding commitment beyond the current Fiscal Year of the County, it is the current intention of the County to make sufficient annual appropriations during the Lease Term to pay all Rental Payments and other amounts required to be paid by the County under this Financing Lease and the other Basic Documents, including funding and maintaining the Debt Service Reserve Fund, as required under the Letter of Conditions and Agreement. Notwithstanding anything in this Financing Lease to the
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contrary, the County’s obligation to pay the cost and expense of performing its obligations under this Financing Lease, including without limitation its obligation to pay all Rental Payments and any and all other amounts required to be paid by the County under this Financing Lease and the Basic Documents, is subject to and dependent upon sufficient appropriations being made from time to time by the Board of Supervisors for such purposes.
(c) Pursuant to the County Resolution and the Support Agreement, the County has directed the County Administrator or other officer charged with the responsibility of preparing the County’s budget to include in the budget for each Fiscal Year of the County during the Lease Term a request that the Board of Supervisors appropriate in the next ensuing fiscal year the amount of Rental Payments and other payments due under this Financing Lease and the Basic Documents during such Fiscal Year, including funds for the Debt Service Reserve Fund. If at any time during any Fiscal Year of the County, the amount appropriated in the budget of the County for the Fiscal Year is insufficient to pay when due the Rental Payments and other amounts due under this Financing Lease or the other Basic Documents, the County shall direct the County Administrator (or other officer charged with responsibility for preparing the County’s budget) to submit to the Board of Supervisors, as appropriate, at the next scheduled meeting of the Board of Supervisors, or as promptly as practicable, but in any event within forty-five (45) days, a request for a supplemental appropriation sufficient to cover such deficit. The Authorized Representative of the County shall provide notice thereof to the Bondholder of such request for supplemental appropriation.
Notwithstanding, it is to be noted that the Board of Supervisors, pursuant to the County Resolution and the Support Agreement, has undertaken a non-binding obligation to appropriate such amounts as may be requested from time to time pursuant to this Financing Lease and the other Basic Documents, to the fullest degree and in such manner as is consistent with the Constitution and laws of the Commonwealth of Virginia, in order for the County to pay, among other amounts, the Rental Payments under this Financing Lease for the payment of the County’s obligations thereunder, including the principal of and interest on the Bond, from time to time, and, further, any other amounts pursuant to the Basic Documents, and has recommended that future Boards of Supervisors do likewise. Section 5.8. Nature of Obligation of the Authority. In accordance with Virginia law, the cost and expense of the performance by the Authority of any of its obligations under this Financing Lease will be expressly limited to the availability of the proceeds of the Bond issued for such purposes or any other funds received by the Authority under this Financing Lease or otherwise and lawfully available to the Authority for such purposes. Section 5.9. Assignment of Payments by the Authority. The County acknowledges that this Financing Lease and all payments it is to make to the Authority under this Financing Lease (except payments under Sections 5.2(b), 5.5, and 5.6 hereof (referenced hereinafter as the “Authority’s Reserved Rights”) are being assigned by the Authority to the owner of the Bond pursuant to the Agreement. The County agrees to pay to the owner of the Bond at its address set forth in Section 12.7 hereof all payments payable by the County to the Authority under this Financing Lease (except the Authority’s Reserved Rights).
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Section 5.10. Subordination Acknowledgment by County.
(a) The County agrees that its rights as lessee hereunder are and will be subordinate to the rights of the Bondholder under the Deed of Trust and will be subject to the Assignment. In addition, the County will promptly furnish, at the request of the Authority or the Bondholder, such agreements, consents to assignment of the Authority’s interest in this Financing Lease or of the Rental Payments due hereunder and attornment agreements as the Authority or the Bondholder may reasonably require in order for the County or the Authority to comply with the requirements of the Bondholder. (b) The County consents to and acknowledges that the Authority has assigned its interest in this Financing Lease (except the Authority’s Reserved Rights) pursuant to the Agreement and the Assignment. Section 5.11. Transfer Upon Termination. After all payments have been made pursuant to Section 5.2 hereof, or the Basic Rent has been prepaid in full pursuant to Section 5.4 hereof, and after Payment of the Bond, in full, and payment of any other Required Payments as described in the Agreement, the County shall automatically be deemed to have acquired all of the Authority’s right, title, and interest in the Leased Property and the Lease, without any further act. Notwithstanding, in such event, and upon request, the Authority will execute and deliver to the County an appropriate instrument or instruments assigning, transferring and conveying to the County all of the Authority’s right, title, and interest in the Lease, this Financing Lease, and the Leased Property free from any lien, encumbrance or security interest except such as may be created or permitted by the County, but without other warranties, and shall enter into an appropriate instrument terminating this Financing Lease. Further notwithstanding, under all circumstances, it is to be understood that no other additional action shall be required upon all payments being made pursuant to Section 5.2 hereof or prepayment of the Basic Rent in full pursuant to Section 5.4 hereof and after Payment of the Bond, in full, in order for the County to be deemed to have acquired all of the Authority’s right, title, and interest in the Lease, this Financing Lease, and the Leased Property. Section 5.12. Title to Leased Property. This Financing Lease is intended for financing and security purposes and shall be subject to the first priority liens of the Bondholder as described in the Deed of Trust (being recorded prior hereto) and the Assignment (being recorded immediately hereafter). For purposes of laws governing taxation, title to the Project and the Leased Property will be deemed to be in the County at all times under the Lease Term, and shall be further subject to the Authority’s right to possession thereof upon the occurrence of an Event of Default or an Event of Nonappropriation of Rental Payments or other amounts constituting Required Payments, all as provided and specifically limited herein; provided, however, all such rights of the Authority to possession thereof shall be subject to the rights of the Bondholder and its remedies as set forth in the Deed of Trust and the Assignment.
ARTICLE VI OPERATION AND MAINTENANCE; INSURANCE
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Section 6.1. Maintenance and Modifications by County. During the Lease Term, the County will, at its own expense, keep (or cause to be kept) the Leased Property in as reasonably safe condition as its operation will permit and keep (or cause to be kept) the Leased Property in good repair and operating condition (normal wear and tear excepted). The County will operate and maintain the Leased Property (or otherwise cause to be operated and maintained) and shall pay (or cause to be paid) the costs of such operation and maintenance. The Authority as lessor will not be required to rebuild or to make any repairs, renewals, or replacements of the Leased Property of any nature whatsoever, and the County expressly waives any right it may have to make any repairs, renewals or replacements at the expense of the Authority as lessor. The County may make any additions, enlargements, improvements, and expansions to, or repairs, reconstruction and restoration of, the Leased Property that do not adversely affect the value of the Leased Property or the structural integrity of any building or other structure forming a part of the Leased Property. All additions, enlargements, improvements and expansions to, or repairs, reconstruction, and restorations of, the Leased Property must comply with all applicable federal, state and local laws, rules, regulations, ordinances, and codes.
Section 6.2. Taxes; Other Governmental Charges and Utility Charges. The County
will pay (or cause to be paid) when due all taxes and governmental charges of any kind whatsoever lawfully assessed, levied, or imposed against the Authority with respect to the Leased Property and the Project or any machinery, equipment, or other property installed in or brought by the County to the Leased Property, if any. The County will pay (or cause to be paid) when due all utility and other charges incurred in the operations, maintenance, use, and occupancy of the Leased Property and all assessments and charges lawfully made by any governmental body for public improvements to the Leased Property. The County may, however, upon ten (10) days’ notice from the County Administrator to the Authority and the Bondholder (if applicable) of the County’s intention to do so, at its own expense and in its own name or in the name of the Authority, contest in good faith any such tax, assessment, utility, or other charge, in which event it may permit the charge to remain unpaid during the period of the contest and any appeal unless, in the opinion of the Bondholder, the action may subject to loss or forfeiture the assignment of the Basic Rent for the payment of the Bond, in which event the charge will be promptly satisfied or secured by posting with the Bondholder or an appropriate court of record a Bond in form and amount satisfactory to the Authority and the Bondholder. The Authority will cooperate with the County to the fullest extent provided by law in the conduct, at the expense of the County, of any such contest and will, to the extent that it may lawfully do so, permit the County to conduct the contest.
Section 6.3. Additional Rights of County. The County, in its discretion, may make any
modification, extension, or enlargement in connection with the Leased Property or Project, at its sole expense.
Section 6.4. Insurance.
(a) The County shall continuously maintain such insurance as may be required from time to time and pay all premiums when due to insure against such risks as are customarily insured against by public bodies for property similar in size and character to the Leased Property, including, without limitation, insurance against liability for bodily injury, including death resulting
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therefrom, and against liability for damage to property, arising out of the ownership maintenance or use of the Leased Property.
(b) In lieu of separate policies, the County may maintain blanket or umbrella
policies having the same coverage as required by this Section. The County will have an annual review of its insurance coverage with respect to the Leased Property conducted by an insurance consultant selected by the County, who is knowledgeable in the insurance business. Such review shall indicate that the policies required under this Section are in full force and effect and that the amounts and types of insurance comply with and satisfy all of the requirements of this Section, or, if any additional insurance coverage is required to comply with this Section, specifying the types and amounts of any such insurance. If any of the insurance required by this Section is provided through a self-insurance program, the insurance consultant’s report shall include an actuarial report showing sufficient reserves to fund the self-insurance program.
Section 6.5. Net Lease. This Financing Lease will be deemed and construed to be a net
lease, non-cancelable by the County during the Lease Term, and during the Lease Term the County will pay absolutely net throughout the Lease Term the Rental Payments and all other payments required under this Financing Lease or any other Basic Documents, free of any or all deductions, diminutions and set-offs, and without abatement for casualty, loss of title, condemnation or any other reason.
Section 6.6. Advances by Authority. If the County fails to make any payment or
perform any act required of it under this Financing Lease or any of the Basic Documents, the Authority or the Bondholder, without prior notice to or demand upon the County and without waiving or releasing any obligation or default, may (but will be under no obligation to) make the payment or perform the act. All amounts so paid by the Authority or the Bondholder and all costs, fees and expenses so incurred as to such payment and performance will, together with interest at the annual rate borne by the Bond, shall be payable by the County as Additional Rent hereunder.
Section 6.7. Bondholder’s Rights to Enforce Payment. The County acknowledges and
consents to the provisions of the Agreement which permit the Bondholder in its name or in the name of the Authority to enforce on behalf of the Bondholder all rights of the Authority and all obligations of the County under and pursuant to this Financing Lease providing for any payment to be made by the County under this Financing Lease or any of the Basic Documents.
ARTICLE VII DAMAGE OR DESTRUCTION
Section 7.1. Damage or Destruction. The County agrees to notify the Authority and the
Bondholder immediately in the case of damage to or destruction from fire or other casualty of all or any portion of the Leased Property during the Lease Term in an amount that the County determines in good faith will cost more than $500,000 to repair, reconstruct and restore. In the event the Leased Property is damaged or destroyed, the County shall promptly replace, repair and/or restore the Leased Property to substantially the same condition as before such damage or destruction, with such alterations and additions as the County may determine and which will not
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impair the capacity or character of the Leased Property for the purposes for which it is then being or is intended to be used. The County may apply so much as may be necessary of the proceeds of any insurance received on account of any such damage or destruction to payment of the cost of the replacement, repair or restoration, and if the proceeds are insufficient, the County shall be required to pay any deficit. The County agrees that, if by reason of any such deficit the County shall make any payments pursuant to this paragraph, it shall not be entitled to any reimbursement therefor from the Authority or the Bondholder nor shall the County be entitled to any reduction in the Rental Payments or other amounts payable by it pursuant to this Financing Lease. Any balance of insurance proceeds remaining after payment of the cost of such repair or restoration shall belong to the County. If any portion of the Leased Property is damaged or destroyed, the County shall have the option to apply the proceeds of insurance to the payment of its Rental Payments hereunder in lieu of replacement, repair, or restoration.
Section 7.2. No Abatement of Rent. Damage or destruction of the Leased Property shall in no way annul or void this Financing Lease or give rise to an abatement of the rent and the amounts payable under this Financing Lease or release the County from its obligations under this Financing Lease or any of the Basic Documents.
ARTICLE VIII SPECIAL COVENANTS
Section 8.1. County’s Rights to Possession. Except as otherwise provided in this
Financing Lease, and subject to the interests of the Bondholder as described in the Deed of Trust and the Assignment, the County will be in sole possession of the Leased Property during the Lease Term.
Section 8.2. Quiet Enjoyment. The Authority makes no representation or covenant that
the County will have quiet and peaceful possession of the Leased Property, except that the Leased Property is and will remain free from encumbrances, other than Permitted Encumbrances, done, made or knowingly suffered by the Authority or anyone claiming by, through or under it.
Section 8.3. Right of Inspection. The Authority and the Bondholder and their
respective duly authorized agents, have such rights of access to the Leased Property as may be reasonably necessary for the proper maintenance of the Leased Property in the event of the County’s failure to perform its obligations under Section 6.1 hereof. The Authority, the Bondholder, and their duly authorized agents, upon all mutually and reasonably agreed times convenient to the County, may enter upon, examine, and inspect any part of the Leased Property and to examine the books and records of the County insofar as they relate to the operations and maintenance of the Leased Property and the Lease.
Section 8.4. [Reserved].
Section 8.5. Mechanics’ and Other Liens. The County will not permit any mechanics’
or other liens incurred by it or on its behalf to be established or remain against the Leased Property, except that the County may, upon ten (10) days’ notice from the County Administrator to the
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Authority and the Bondholder of the County’s intention to do so, at its own expense and in its own name or in the name of the Authority, contest in good faith any lien, in which event the County may permit the lien to remain unsatisfied and undischarged during the period of the contest and any appeal unless, in the opinion of the Bondholder, the action may result in the loss or forfeiture of any rights under the Agreement or this Financing Lease, in which event the lien will be promptly satisfied or secured by posting with the Bondholder or an appropriate court of record a bond in a satisfactory form and amount to the Authority and the Bondholder. Section 8.6. Recording and Filing. The County will, at its expense, record a counterpart of the Deed of Trust, the Lease, this Financing Lease and the Assignment in the Clerk’s Office, on or before the date of delivery of the Bond. IT IS HEREBY EXPRESSLY NOTED BY THE PARTIES HERETO THAT THIS FINANCING LEASE IS SUBJECT TO THE DEED OF TRUST, AND, FURTHER, THAT SUCH DEED OF TRUST SHALL PROVIDE ADDITIONAL SECURITY FOR THE PAYMENT OF THE OBLIGATIONS OF THE AUTHORITY AND THE COUNTY TO THE BONDHOLDER IN CONNECTION WITH THE BOND AND PURSUANT TO THE BASIC DOCUMENTS.
Section 8.7. Notice of Appropriation. While the Bond remains outstanding, the County shall give notice to the owner of the Bond, by no later than June 15 of each year, of the amount appropriated by the Board of Supervisors for all payments required to be made by the County under this Financing Lease and the Basic Documents in the Fiscal Year commencing on the immediately succeeding July 1 and whether such amount(s) is/are sufficient to meet all such Required Payments during such period.
Section 8.8. Negative Covenant as to the Leased Property. The County hereby
represents and warrants that the Deed of Trust shall provide additional security for the benefit of the Bondholder in connection with the obligations of the County and the Authority pursuant to the Basic Documents until such time when the County shall make all Required Payments under the Basic Documents and the Bond shall be paid, in full, at which time the Bondholder shall execute and deliver to the County and the Authority all such documentation necessary and convenient in order to release the lien of the Deed of Trust and the Assignment, as described therein and herein. The County and the Authority covenant and agree, however, that neither the County nor the Authority shall further incur, create, assume or permit to exist any mortgage, pledge, security interest, encumbrance, lien or charge of any kind upon any portion of the Leased Property, whether now owned or hereafter acquired, except Permitted Encumbrances as described in this Financing Lease unless the Bondholder shall otherwise consent thereto.
Section 8.9. Effect of Payment of the Bond. Subject to earlier satisfaction upon
prepayment of all obligations hereunder and the making in full of all other Required Payments due and payable at the date of such prepayment, and, further, subject to any provisions hereof which survive Payment of the Bond in accordance with law, the obligations of the Authority and the County hereunder shall expire on the date provided in the Bond for the final payment of principal of and interest thereon, or if all Required Payments under the Basic Documents have not been made on such date, when all such Required Payments shall have been made.
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ARTICLE IX ASSIGNMENT, SALE, ENCUMBRANCE AND SUBLETTING
Section 9.1. No Assignment, Sale, or Encumbrance by County. Except as described
in the Deed of Trust or the Assignment and for Permitted Encumbrances, the County will not sell, assign, or otherwise dispose of or encumber its interest in the Leased Property other than as provided in Section 9.2 hereof.
Section 9.2. Subletting by County.
(a) No sublease in connection with the Leased Property shall be made if it would (i) have any adverse effect upon or affect or reduce the County’s obligations under this Financing Lease, (ii) be to a party that could not under the Act be the lessee from the Authority of all or any portion of the Leased Property, or (iii) be contrary to law.
(b) No sublease will relieve the County from primary liability for any of its obligations under this Financing Lease or any other of the Basic Documents, and the County will continue to remain primarily liable for the payment of Rental Payments and for the observance and performance of all of the County’s other agreements thereunder, including payment of any other amounts constituting Required Payments, and any such sublease will be expressly subordinate to the rights of the Bondholder as described in the Deed of Trust and the Assignment, and, further, the rights of the Authority and the Bondholder under this Financing Lease and the Agreement.
(c) Each sublessee pursuant to this Section will, to the extent of the interest
subleased to it, in writing (i) assume and agree to perform the obligations of the County under this Financing Lease (but such agreement shall not relieve the County of primary liability for all such obligations under this Financing Lease), or, in the alternative, the County shall continue to perform its obligations under this Financing Lease, and (ii) agree to attorn to the Authority and any other successor in interest to the Authority (whether pursuant to this Financing Lease, the Agreement, or otherwise).
(d) The County will promptly deliver executed counterparts of each sublease
pursuant to this Section to the Authority, and the Bondholder.
ARTICLE X EVENTS OF DEFAULT AND REMEDIES
Section 10.1. Events of Default. (a) An “Event of Default” or a “Default” means, whenever used in this
Financing Lease, any one or more of the following events: (1) Failure by the County to pay, when due, any payments to be made
under Section 5.2(a);
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(2) Failure by the County to pay when due any payment to be made
under this Financing Lease, other than payments under Section 5.2(a), which failure continues for a period of thirty (30) days after notice, specifying the failure and requesting that it be remedied, is given to the County by the Authority and the Bondholder;
(3) Failure by the County to observe and perform any covenant,
condition or agreement on its part to be observed or performed, other than as referred to in Sections 10.l(a)(l) and 10.1(a)(2), which failure continues for a period of ninety (90) days after notice, specifying the failure and requesting that it be remedied, is given to the County by the Authority and the Bondholder, unless the Authority agrees in writing to an extension of such time; or (4) The entering of an order or decree appointing a receiver for all or any part of the Project or the Leased Property or of the revenues from any part of the Project with the consent or acquiescence of the County or the entering of an order or decree without the acquiescence or consent of the County if it is not vacated, discharged, or stayed within ninety (90) days after entry. (b) The Authority will not unreasonably withhold its consent to an extension of the time for taking corrective action under Section 10.1(a)(3) if corrective action is instituted by the County within the ninety (90) day period and is diligently pursued until the failure is remedied. (c) Notwithstanding anything contained in this Section to the contrary, a failure by the County to pay when due any payment required to be made under this Financing Lease or a failure by the County to observe and perform any covenant, condition, or agreement on its part to be observed or performed under this Financing Lease resulting from a failure by the Board of Supervisors to appropriate money for such purposes after a request to appropriate in accordance with Section 5.7 hereof, will not constitute an Event of Default. Upon any such failure, and subject to the priority secured liens in favor of the Bondholder as described in the Assignment, the provisions of Article XI will be applicable. Section 10.2. Remedies. (a) Whenever any Event of Default has happened and is continuing, and subject to the terms of the Deed of Trust and the Assignment and the rights and interests of the Authority, any one or more of the following remedial actions may be taken to the extent that those actions are consistent with the Act and the Agreement, provided that either the Authority or the Bondholder has given notice of the Event of Default to the County and the Event of Default has not been cured:
(1) The Authority may re-enter and take possession of all or any part of the Leased Property without terminating this Financing Lease, exclude the County from possession of all or any part of the Leased Property, and, at its option, and for the account of the County, keep in force and effect all subleases entered into pursuant to Section 9.2 hereof which then are outstanding, and sublease all or any part of the Leased Property which then is not already so subleased to one or more parties, in each case holding the County liable for the difference in the rent and other amounts paid by the sublessee in such subleasing and the Rental Payments and other
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amounts payable by the County under this Financing Lease. Upon taking this remedial action, the Authority’s leasehold interest in the Leased Property and the leasehold estate under this Financing Lease will not merge but will remain separate and distinct.
(2) The Authority may terminate this Financing Lease, exclude the
County from possession of all or any part of the Leased Property, and, subject to the rights of the Bondholder as described in the Deed of Trust and the Assignment, lease all or any part of the Leased Property for the account of the County to one or more parties, holding the County liable for all Rental Payments and other amounts due under this Financing Lease and not paid by the other party.
(3) The Authority may have access to and inspect, examine, and make
copies of, the books, records and accounts of the County as such records pertain to the Leased Property, the Project and the Lease.
(4) The Authority may take whatever action at law or in equity may appear necessary or desirable to collect the payments then due and thereafter to become due, or to enforce performance and observance of any obligation or agreement of the County under this Financing Lease.
(5) To the extent that the Bondholder accelerates amounts due under the
Bond, to accelerate Rental Payments due hereunder in the same amount. (b) The Authority will give notice to the County of the exercise of any of its
rights or remedies under this Section in the manner provided in Section 12.7 hereof and by telephone or electronic mail, provided, however, that failure to give notice by telephone or electronic mail will not affect the validity of the exercise of any right or remedy under this Section.
(c) Any balance of the money collected pursuant to action taken under this
Section remaining after payment of all costs and expenses of collection and amounts due as Additional Rent, if any, will be ratably applied to the payment of the Bond then outstanding in accordance with the provisions of the Agreement, or, if Payment of the Bond has occurred, such balance shall be paid to the County.
Section 10.3. Reinstatement. Notwithstanding the exercise of any remedy granted by
Section 10.2 hereof, if prior to any foreclosure of the Deed of Trust, all arrears of the installments of interest and principal on the Bond which have become due and payable through the date of the proposed reinstatement otherwise than by acceleration, and all other sums payable under the Agreement have been paid, and all other things have been performed in respect of which there was a default and there has been paid the reasonable fees and expenses, including administrative expenses, of the Bondholder, if any (including reasonable attorneys’ fees paid or incurred) and any acceleration under the Basic Documents is rescinded, then the Event of Default under this Financing Lease will be waived without further action by the Bondholder or the Authority. Upon such payment and waiver, this Financing Lease will be reinstated, as if it had never been terminated, and the County will be restored to the use, occupancy, and possession of the Project,
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except as to any portion of the Project with respect to which the Authority has entered into a firm bilateral agreement providing for its lease for a period of at least one year.
Section 10.4. No Remedy Exclusive. No remedy conferred upon or reserved to the Authority or the Bondholder in this Financing Lease is intended to be exclusive of any other available remedy, but each remedy will be cumulative and will be in addition to every other remedy given under this Financing Lease or now or thereafter existing at law, in equity, or by statute. No delay or omission in exercising any right or power accruing upon any Event of Default will impair or will be construed to be a waiver of any right or power, but any right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the Authority or the Bondholder to exercise any remedy reserved to it in this Article, it will not be necessary to give any notice, other than such notice as may be expressly required under this Financing Lease.
Section 10.5. No Additional Waiver Implied by One Waiver. If any agreement contained in this Financing Lease should be breached by either party and thereafter waived by the other party, the waiver will be limited to the particular breach so waived and will not be deemed to waive any other breach under this Financing Lease.
Section l0.6 Attorneys’ Fees and Other Expenses. The County will on demand pay to the Authority and the Bondholder, the reasonable fees of attorneys and other reasonable expenses incurred by any of them, whether in the collection of Rental Payments, Required Payments, or the enforcement of any other obligation of the County or in carrying out its respective obligations under this Financing Lease and any other of the Basic Documents, and, further, will pay on demand legal expenses and fees properly incurred in connection with the issuance of the Bond.
ARTICLE XI REMEDIES UPON NONAPPROPRIATION
Section 11.1. Remedies Upon an Event of Nonappropriation. If, as a result of a failure
of the Board of Supervisors to appropriate money for such purposes, the County is unable to pay when due the amounts required to be paid under this Financing Lease, or the County is unable to observe and perform any covenant or agreement on its part to be observed or performed under this Financing Lease or any of the Basic Documents, the Authority or the Bondholder will have the rights and remedies set forth in Section 10.2.
Section 11.2. Reinstatement. Notwithstanding any termination of this Financing Lease
by the Authority, or the Bondholder on behalf of the Authority, in accordance with the provisions of Section 11.1 hereof, if all arrears of the interest and principal on the Bond which have become due and payable through the date of the proposed reinstatement otherwise than by acceleration, and all other sums payable under the Agreement have been paid, and all other things have been performed in respect of which there was a default and there has been paid the reasonable fees and expenses of the Bondholder, if any, including administrative expenses and reasonable attorneys’
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fees paid or incurred, and any acceleration under the Agreement is rescinded, and if the County has agreed to pay or provide for the payment of amounts under this Financing Lease and if the County observes or performs or agrees to observe or perform all covenants or agreements on its part to be observed or performed under this Financing Lease, and all appropriations that the County Administrator has requested under Section 5.7 herein through the Fiscal Year of such reinstatement have been made, this Financing Lease will be fully reinstated, as if it had never been terminated, and the County will be restored to the use, occupancy, and possession of the Leased Property, except any portion of the Leased Property with respect to which the Authority has entered into a firm bilateral agreement providing for its lease for a period of at least one (1) year.
Provided, however, it is to be expressly understood that the provisions of this Article XI shall be construed subject to the first priority lien position of the Bondholder as described in the Deed of Trust (being recorded immediately prior hereto) and the Assignment (being recorded immediately hereafter) such that the remedies thereunder shall be available to the Authority or its assignee in the Event of Nonappropriation as described in Section 11.1.
ARTICLE XII
MISCELLANEOUS
Section 12.1. Successors and Assigns. This Financing Lease is binding upon, inures to the benefit of and is enforceable by the parties and their respective successors and assigns, subject, however, of the provisions of Sections 9.1 and 9.2 hereof.
Section 12.2. Severability. If any provision of this Financing Lease is held invalid by
any court of competent jurisdiction, the holding will not invalidate any other provision. Section 12.3. Amendments. This Financing Lease may not be amended before Payment
of the Bond except as provided in the Agreement.
Section 12.4. Amounts Remaining Under Agreement. It is agreed by the parties to this Financing Lease that any amount with respect to the Bond remaining in any fund or account created under the Agreement (if any) will, after Payment of the Bond and the fees, charges, and expenses of the Bondholder and the Authority in accordance with the Agreement, belong to and be paid to the County, to the extent permitted by law.
Section 12.5. Governing Law. This Financing Lease will be governed by the laws of the
Commonwealth of Virginia. Section 12.6. Counterparts. This Financing Lease may be simultaneously executed in
several counterparts, each of which will be an original and all of which taken together will constitute one and the same instrument.
Section 12.7. Notices. Unless otherwise provided in this Financing Lease, all demands,
notices, approvals, consents, requests, opinions, and other communications under this Financing Lease must be in writing and will be deemed to have been given when delivered in person, or by overnight mail or other express courier service, or when mailed by first class mail, postage prepaid, addressed as follows:
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(i) if to the Authority, the Economic Development Authority of Greene County,
Virginia, Chair, 8315 Seminole Trail, Suite 2, Ruckersville, Virginia 22968, with a courtesy copy to BotkinRose PLC, Attention: Daniel R. Lauro, Esq., 3190 Peoples Drive, Harrisonburg, Virginia 22801; and
(ii) if to the County, Greene County, Virginia, Attention: County Administrator, 40 Celt Road, Stanardsville, Virginia 22973; and
(iii) if to the Bondholder, United States of America, acting through Rural Housing
Service, an agency of United States Department of Agriculture Finance Office, USDA Rural Development NFAOC, 4300 Goodfellow Boulevard, Bldg. 104, St. Louis, Missouri 63120-1703.
A duplicate copy of each demand, notice, approval, consent, request, opinion, or other
communication given under this Financing Lease by either the Authority or the County to the other will also be given to the Bondholder. The Authority, the Bondholder, and the County may, by notice given under this Financing Lease or otherwise, designate any additional or different addresses or persons to which subsequent demands, notices, approvals, consents, requests, opinions, or other communications are to be sent.
Section 12.8. Limited Liability of Authority. Notwithstanding any provision of the
Assignment or the other Basic Documents to the contrary, the obligations of the Authority under the Bond and the Basic Documents are not general obligations of the Authority, but are limited obligations payable solely from the funds received hereunder and the other property or revenues specifically pledged or assigned for such purpose under the Basic Documents. Neither the Bond nor the other Basic Documents will be deemed to create or constitute a general obligation debt or a pledge of the faith and credit of the Commonwealth of Virginia or any agency or political subdivision thereof, including the Authority and the County, and neither the Commonwealth of Virginia nor any political subdivision thereof, including the Authority and the County, are obligated to pay the Bond or other costs incident thereto except from the funds received and appropriated therefor, all described in the Basic Documents. EXHIBIT A: Description of Leased Property
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[THIS SPACE LEFT BLANK INTENTIONALLY.]
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IN WITNESS WHEREOF, the Authority and the County have caused this Financing Lease to be duly executed and sealed as of the day and year first above written.
ECONOMIC DEVELOPMENT AUTHORITY OF GREENE COUNTY, VIRGINIA
[SEAL] By:_____________________________________________ Chair ATTEST: ___________________________________ Secretary/Treasurer COMMONWEALTH OF VIRGINIA CITY/COUNTY OF __________________________________: The foregoing instrument was acknowledged before me in the jurisdiction aforesaid, this ___ day of __________, 2019, by Michael A. Payne, as Chair of the Economic Development Authority of Greene County, Virginia, on behalf of the Authority.
My commission expires: ____________________________________ ___________________ _______________________________________ Registration No. Notary Public COMMONWEALTH OF VIRGINIA CITY/COUNTY OF __________________________________: The foregoing instrument was acknowledged before me in the jurisdiction aforesaid, this ___ day of __________, 2019, by Donald Pamenter, Secretary/Treasurer of the Economic Development Authority of Greene County, Virginia, on behalf of the Authority.
My commission expires: ____________________________________
___________________ _______________________________________ Registration No. Notary Public
IN WITNESS WHEREOF, the Authority and the County have caused this Financing Lease to be duly executed and sealed as of the day and year first above written.
COUNTY OF GREENE, VIRGINIA [SEAL] By: ______________________________________
Chair Board of Supervisors
ATTEST: __________________________________ Clerk of Board of Supervisors County of Greene, Virginia COMMONWEALTH OF VIRGINIA CITY/COUNTY OF ________________________________: The foregoing instrument was acknowledged before me in the jurisdiction aforesaid, this ___ day of __________, 2019, by William B. Martin, as Chair of the Board of Supervisors of the County of Greene, Virginia, and Mark B. Taylor, who is the County Administrator/ Clerk of the Board of Supervisors, on behalf of the County.
My commission expires: ____________________________________
Registration No.: __________________________________________ ____________________________________ Notary Public
CONSENT TO AND ACKNOWLEDGEMENT OF ASSIGNMENT
The County of Greene, Virginia (the “County”), consents to and acknowledges that all payments under this Financing Lease from the County to the Authority (except the Authority’s Reserved Rights, as described in this Financing Lease) are being assigned by the Authority to the Bondholder pursuant to the terms and provisions of the Agreement and the Assignment, all as described in this Financing Lease. Such assignment by the Authority is being made as security for payment of the $1,040,000 Economic Development Authority of Greene County, Virginia Lease Revenue Bond (Visitor Center Project), Series 2019, all as described in this Financing Lease.
COUNTY OF GREENE, VIRGINIA
By:__________________________________________ Chair
Board of Supervisors
By: __________________________________________
County Administrator
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Exhibit A
Leased Property
County of Greene, Virginia: Tax Map 60-A-20A
The Leased Property consists of all that certain lot or parcel of land in the Ruckersville Magisterial District of Greene County, Virginia, located on the western margin of U.S. Route 29, north of Ruckersville, containing 1.59 acres, more particularly described as Lot A1 on a subdivision plat of Roger W. Ray, Land Surveyor, dated December 13, 2000, which plat is recorded in the office of the Clerk of the Circuit Court of the County (the “Clerk’s Office”) on Plat Card 2875, Instrument #0100139. The real estate is a portion of the real estate which was acquired by John J. Silke and Robin A. Silke by deed dated October 6, 1998, of record in the Clerk’s Office in Deed Book 472, Page 183, and identified as Tax Map No.: 60-A-20A.