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FORM OF CONTINUING DISCLOSURE UNDERTAKINGThis Continuing Disclosure Undertaking, dated [___], 2020 (this “Undertaking”), is among the Regional Transportation District (the “District”), Denver Transit Partners, LLC (the “Company”) and Digital Assurance Certification, L.L.C., as dissemination agent (the “Dissemination Agent”).Section 1. Purpose of Undertaking. This Undertaking is being executed and delivered by RTD, the Company and the Dissemination Agent for the benefit of the holders and beneficial Owners of the Bonds and in order to assist the Participating Underwriter in complying with the Rule. RTD is not obligated to make payments on the Bonds but is voluntarily executing this Undertaking because it is obligated under the Concession Agreement to make payments to the Company.Section 2. Definitions. In addition to the definitions set forth in the Indenture or parenthetically defined herein, which apply to any capitalized terms used in this Undertaking unless otherwise defined in this Section, the following capitalized terms shall have the following meanings:“Board” means the Board of Directors of RTD.“Bonds” means the Series 2020A Bonds and the Series 2020B Bonds issued pursuant to the Indenture.“Company Annual Report” means any annual report provided by the Company pursuant to, and as described in, Sections 3 and 4 of this Undertaking.“Dissemination Agent” means, initially, Digital Assurance Certification, L.L.C., or any successor Dissemination Agent designated in accordance with this Undertaking.“District Annual Report” means any annual report provided by RTD pursuant to, and as described in, Sections 3 and 4 of this Undertaking.“Indenture” means the Indenture of Trust, dated as of August 1, 2010, and amended and restated as of [_____] 1, 2020, between RTD and The Bank of New York Mellon Trust Company, N.A., as trustee.“Loan Agreement” means the Loan Agreement, dated as of August 1, 2010, and amended and restated as of [_____] 1, 2020, between RTD and the Company.“Material Events” means any of the events listed in Section 5 of this Undertaking.“MSRB” shall mean the Municipal Securities Rulemaking Board. The MSRB’s required method of filing is electronically via its Electronic Municipal Market Access (EMMA) system available on the Internet at .“Official Statement” means the final Official Statement dated [____], 2020, together with any supplements thereto, delivered in connection with the original issuance and sale of the Bonds.“Participating Underwriter” means any original underwriter of the Bonds required to comply with the Rule in connection with an offering of the Bonds.“Rule” means Rule 15c2-12(b)(5) adopted by the SEC under the Securities Exchange Act of 1934, as the same may be amended from time to time (17 C.F.R. Part 240 § 240.15c2-12).“SEC” means the Securities and Exchange Commission.“Series 2020A Bonds” means the Regional Transportation District (Colorado) Tax-Exempt Non-AMT Private Activity Bonds (Denver Transit Partners Eagle P3 Project), Series 2020A, in the aggregate principal amount of $[_____].“Series 2020B Bonds” means the Regional Transportation District (Colorado) Taxable Private Activity Bonds (Denver Transit Partners Eagle P3 Project), Series 2020B, in the aggregate principal amount of $[_____].Section 3. Provision of Annual Reports(a)RTD shall provide a District Annual Report to the Dissemination Agent not later than five (5) business days prior to the end of the ninth (9th) month following the end of RTD’s fiscal year of each year, commencing with the ninth (9th) month following the end of RTD’s fiscal year ending December 31, 2020. RTD Annual Report may be submitted as a single document or as separate documents comprising a package and may cross-reference other information as provided in Section 4 of this Undertaking; provided that the audited financial statements of RTD may be submitted separately from the balance of RTD Annual Report. RTD shall include with each submission of RTD Annual Report to the Dissemination Agent a written representation addressed to the Dissemination Agent to the effect that such District Annual Report is RTD Annual Report required by this Undertaking and that it complies with the requirements of Section 4 of this Undertaking.(b)The Company shall provide a Company Annual Report to the Dissemination Agent not later than five (5) business days prior to the end of the ninth (9th) month following the end of the Company’s fiscal year of each year, commencing with the ninth (9th) month following the end of the Company’s fiscal year ending December 31, 2020. The Company Annual Report may be submitted as a single document or as separate documents comprising a package and may cross-reference other information as provided in Section 4 of this Undertaking; provided that the audited financial statements of the Company may be submitted separately from the balance of the Company Annual Report. The Company shall include with each submission of the Company Annual Report to the Dissemination Agent a written representation addressed to the Dissemination Agent to the effect that such Company Annual Report is the Company Annual Report required by this Undertaking and that it complies with the requirements of Section 4 of this Undertaking.(c)The Dissemination Agent shall provide RTD Annual Report and Company Annual Report to the MSRB in electronic format as prescribed by the MSRB within four (4) business days after its receipt from RTD or the Company, as applicable.(d)If either RTD or the Company is unable to provide to the Dissemination Agent a District Annual Report or a Company Annual Report by the date required in subsection (a) or (b), as applicable, the Dissemination Agent shall send a notice in substantially the form attached as Exhibit A to the MSRB.(e)The Dissemination Agent shall:(i)determine each year prior to the date for providing RTD Annual Report and the Company Annual Report the appropriate electronic format prescribed by the MSRB;(ii)provide written notice to RTD and the Company at least forty-five (45) days prior to the date RTD Annual Report or the Company Annual Report is due stating that RTD Annual Report or the Company Annual Report is due as provided in subsection (a) or (b) of this Section 3, as applicable; and(iii)file a report with RTD and the Company certifying that RTD Annual Report or the Company Annual Report has been provided to the MSRB pursuant to this Undertaking, stating the date it was provided and listing all the entities to which it was provided.Section 4. Content of Annual Reports(a)RTD Annual Report shall contain or incorporate by reference the following:(i)a copy of RTD’s annual financial statements prepared in accordance with generally accepted accounting principles audited by a firm of certified public accountants. If audited annual financial statements are not available by the time specified in Section 3(a) above, unaudited financial statements shall be provided as part of RTD Annual Report and audited financial statements shall be provided to the Dissemination Agent when and if available;(ii)historical financial information and operating data of the type shown in the tables identified in Exhibit B hereto; and(iii)any or all of the items listed above may be incorporated by reference from other documents, including official statements of debt issues of RTD or related public entities, which are available to the public on the MSRB’s website or filed with the SEC. RTD shall clearly identify each such document incorporated by reference.(b)The Company Annual Report shall contain or incorporate by reference the following:(i)a copy of the Company’s annual financial statements prepared in accordance with generally accepted accounting principles audited by a firm of certified public accountants. If audited annual financial statements are not available by the time specified in Section 3(b) above, unaudited financial statements shall be provided as part of the Company Annual Report and audited financial statements shall be provided to the Dissemination Agent when and if available; and(ii)any or all of the items listed above may be incorporated by reference from other documents, including official statements of debt issues of the Company, which are available to the public on the MSRB’s Internet web site or filed with the SEC. The Company shall clearly identify each such document incorporated by reference.Section 5. Reporting of Material Events. The Company shall provide or cause to be provided, in a timely manner, to the Dissemination Agent, and the Dissemination Agent shall thereafter promptly provide notice, as instructed by the Company, of any of the following events with respect to the Bonds, to the MSRB:(a)principal and interest payment delinquencies;(b)non-payment related defaults, if material;(c)unscheduled draws on debt service reserves reflecting financial difficulties;(d)unscheduled draws on credit enhancements reflecting financial difficulties;(e)substitution of credit or liquidity providers, or their failure to perform;(f)adverse tax opinions or the issuance by the Internal Revenue Service of proposed or final determinations of taxability, Notices of Proposed Issue (IRS Form 5701-TEB) or other material notices or determinations with respect to the tax status of the Bonds, or other material events affecting the tax-exempt status of the Series 2020A Bonds;(g)modifications to rights of Owners, if material;(h)bond calls, if material, and tender offers;(i)defeasances;(j)release, substitution or sale of property securing repayment of the Bonds, if material; (k)rating changes;(l)bankruptcy, insolvency, receivership or similar event; (m)the consummation of a merger, consolidation, or acquisition involving the Company or the sale of all or substantially all of the assets of the Company, other than in the ordinary course of business, the entry into a definitive agreement to undertake such an action or the termination of a definitive agreement relating to any such actions other than pursuant to its terms, if material;(n)appointment of a successor or additional trustee or the change of name of a trustee, if material;(o)incurrence of a financial obligation of the Company, if material, or agreement to covenants, events of default, remedies, priority rights, or other similar terms of a financial obligation of the Company, any of which affect Owners, if material; or(p)default, event of acceleration, termination event, modification of terms, or other similar events under the terms of a financial obligation of the Company, any of which reflect financial difficulties.With respect to events (o) and (p) above, the term “financial obligation” means a (i) debt obligation; (ii) derivative instrument entered into in connection with or pledged as security or a source of payment for, an existing or planned debt obligation; or (iii) guarantee of (i) or (ii). The term “financial obligation” shall not include municipal securities (as defined in the Securities Exchange Act of 1934, as amended) as to which a final official statement (as defined in the Rule) has been provided to the MSRB consistent with the Rule.Section 6. Identifying Information. All documents provided to the MSRB pursuant to this Undertaking shall be accompanied by identifying information as prescribed by the MSRB.Section 7. Termination of Reporting Obligation. RTD’s, the Company’s and the Dissemination Agent’s obligations under this Undertaking shall terminate upon the earliest of: (a) the date of legal defeasance, prior redemption or payment in full of all of the Bonds; (b) the date that the Company or RTD shall no longer constitute an “obligated person” within the meaning of the Rule; or (c) the date on which those portions of the Rule which require this written undertaking are held to be invalid by a court of competent jurisdiction in a non-appealable action, have been repealed retroactively or otherwise do not apply to the Bonds, which determination shall be evidenced by an opinion of nationally recognized bond counsel selected by the Company.Section 8. Amendment; Waiver. Notwithstanding any other provision of this Undertaking, RTD, the Company and the Dissemination Agent may amend this Undertaking and may waive any provision of this Undertaking, without the consent of the holders and beneficial Owners of the Bonds, if such amendment or waiver does not, in and of itself, cause the undertakings herein (or action of any Participating Underwriter in reliance on the undertakings herein) to violate the Rule, but taking into account any subsequent change in or official interpretation of the Rule, as evidenced by an opinion of nationally recognized bond counsel selected by the Company and delivered to the Dissemination Agent. The Dissemination Agent shall provide notice of such amendment or waiver to the MSRB.Section 9. Additional Information. Nothing in this Undertaking shall be deemed to prevent RTD or the Company from disseminating any other information, using the means of dissemination set forth in this Undertaking or any other means of communication, or including any other information in any District Annual Report, Company Annual Report or notice of occurrence of a Material Event, in addition to that which is required by this Undertaking. If either RTD or the Company chooses to include any information in any District Annual Report or Company Annual Report or notice of occurrence of a Material Event in addition to that which is specifically required by this Undertaking, neither RTD nor the Company shall have any obligation under this Undertaking to update such information or include such in any future District Annual Report, Company Annual Report or notice of occurrence of a Material Event.Section 10. Default. In the event of a failure of RTD, the Company or the Dissemination Agent to comply with any provision of this Undertaking, any holder or beneficial Owner of the Bonds may take such actions as may be necessary and appropriate, including seeking mandate or specific performance by court order, to cause RTD, the Company or the Dissemination Agent to comply with its obligations under this Undertaking. A default under this Undertaking shall not be deemed an event of default under the Indenture or the Loan Agreement, and the sole remedy under this Undertaking in the event of any failure of RTD, the Company or the Dissemination Agent to comply with this Undertaking shall be an action to compel performance. The Dissemination Agent shall have no power or duty to enforce this Undertaking, nor shall the Dissemination Agent have any responsibility for the content of any report, disclosure or notice provided by RTD or the Company. The Dissemination Agent shall have no liability to any person, including any holder or beneficial Owners of the Bonds, with respect to any reports, notices or disclosures provided to it by RTD or the Company hereunder.Section 11. Resignation or Removal of Dissemination Agent. The present or any future Dissemination Agent may resign at any time upon 30 days’ prior written notice to RTD and the Company. The Company may remove the present or any future Dissemination Agent upon 30 days’ prior written notice to the Dissemination Agent and with the consent of RTD. RTD may remove the present or any future Dissemination Agent upon 30 days’ prior written notice to the Dissemination Agent and with the consent of the Company. Such resignation or removal shall take effect upon the appointment by the Company with the consent of RTD of a successor Dissemination Agent or upon execution by the Company of a written undertaking in which the Company agrees to assume all of the obligations of the Dissemination Agent hereunder, but in no event earlier than 30 days after such written notice of resignation or removal has been given. The new Dissemination Agent or the Company, as the case may be, shall forthwith give notice thereof to the MSRB.Section 12. Compensation. As compensation for its services under this Undertaking, the Dissemination Agent shall be compensated or reimbursed by the Company for its reasonable fees and expenses (including without limitation, legal fees and expenses) in performing the services specified under this Undertaking.Section 13. Miscellaneous Provisions. It is understood and agreed that any information that the Dissemination Agent may be instructed to file with the MSRB shall be prepared and provided to it by RTD or the Company, as applicable. The fact that the Dissemination Agent or any affiliate thereof may have any fiduciary or banking relationship with RTD or the Company shall not be construed to mean that the Dissemination Agent has actual knowledge of any event or condition except as may be provided by written notice from RTD or the Company.The Dissemination Agent undertakes to perform such duties and only such duties as are specifically set forth in this Undertaking and no implied covenants or obligations shall be read into this Undertaking against the Dissemination Agent. None of the provisions of this Undertaking shall require the Dissemination Agent to expend or risk its own funds or otherwise to incur any liability, financial or otherwise, in the performance of any of its duties hereunder. The Dissemination Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Dissemination Agent may consult with counsel and the advice or any opinion of counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in accordance with such advice or opinion of counsel. The Dissemination Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care. The Dissemination Agent shall not be liable hereunder except for its negligence or willful misconduct. The Dissemination Agent shall have no duty or obligation to review or verify any Information or any other information, disclosures or notices provided to it by the District or Company and shall not be deemed to be acting in any fiduciary capacity for the District, Company or any other party.Any entity into which the Dissemination Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Dissemination Agent shall be a party, or entity succeeding to all or substantially all of the corporate trust business of the Dissemination Agent shall be the successor of the Dissemination Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.This Undertaking may be executed in counterparts.Section 14. Beneficiaries. This Undertaking shall inure solely to the benefit of RTD, the Company, the Dissemination Agent, the Participating Underwriter and the holders and beneficial Owners from time to time of the Bonds and shall create no rights in any other person or entity.Section 15. Governing Law. This Undertaking shall be governed by the laws of the State of Colorado.IN WITNESS WHEREOF, RTD, the Company and the Dissemination Agent have caused this Continuing Disclosure Undertaking to be executed in their respective names, all as of the date first above written. REGIONAL TRANSPORTATION DISTRICTBy:Name: Title:DENVER TRANSIT PARTNERS, LLCByName: Title: Authorized SignatoryByName: Title: Authorized SignatoryByName: Title: Authorized SignatoryDIGITAL ASSURANCE CERTIFICATION, L.L.C., as Dissemination AgentBy:Name:Title: ................
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