EXECUTION VERSION
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BOND PURCHASE AGREEMENT
dated as of July 25, 2024
by and among
ANAHEIM PUBLIC FINANCING AUTHORITY
and
CITY OF ANAHEIM
and
THE PURCHASERS PARTY HERETO
and
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT
___________________________
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
AS SOLE BOOKRUNNER AND SOLE LEAD ARRANGER
___________________________
Relating to
Up to $400,000,000
ANAHEIM PUBLIC FINANCING AUTHORITY
TAXABLE LEASE REVENUE BONDS
(ANAHEIM ARENA IMPROVEMENT PROJECT)
2024 SERIES A (VARIABLE RATE)
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS ............................................................................................................ 2 Section 1.01. Certain Defined Terms......................................................................... 2 Section 1.02. Computation of Time Periods ............................................................ 30 Section 1.03. Construction ...................................................................................... 30 Section 1.04. Accounting Terms and Determinations............................................... 31 Section 1.05. Relation to Other Documents; Acknowledgment of Different Provisions of Financing Documents; Incorporation by Reference ........ 31 ARTICLE II PURCHASE OF SERIES 2024A BONDS ...................................................................... 32 Section 2.01. Commitment and Purchase of Initial Series 2024A Bonds ................... 32 Section 2.02. Required Payments and Repayments .................................................. 34 Section 2.03. Optional Prepayment ......................................................................... 35 Section 2.04. Mandatory Prepayment ...................................................................... 35 Section 2.05. Increase of Commitment .................................................................... 35 Section 2.06. Permanent Reduction and Termination of Commitment ...................... 42 Section 2.07. Interest Elections ............................................................................... 43 Section 2.08. Interest .............................................................................................. 44 Section 2.09. Alternate Rate of Interest ................................................................... 45 Section 2.10. Payments Generally; Pro Rata Treatment; Sharing of Setoffs .............. 48 Section 2.11. Mitigation Obligations; Replacement of Purchasers ............................ 49 Section 2.12. Defaulting Purchasers ........................................................................ 50 ARTICLE III THE AUTHORITY’S OBLIGATIONS .......................................................................... 52 Section 3.01. Payment Obligations.......................................................................... 52 Section 3.02. Default Rate ...................................................................................... 52 Section 3.03. Interest Rate Limitation ..................................................................... 52 Section 3.04. Fees .................................................................................................. 53 Section 3.05. Withholding of Taxes; Gross-Up........................................................ 53 Section 3.06. Obligations Absolute ......................................................................... 57 Section 3.07. Purchaser Consent to Extension of Commitment................................. 58 Section 3.08. Funding Indemnity ............................................................................ 58 Section 3.09. Termination or Reduction Fee ............................................................ 58 Section 3.10. Increased Costs ................................................................................. 58 Section 3.11. Break F unding Payments ................................................................... 60 ARTICLE IV CONDITIONS PRECEDENT...................................................................................... 60 Section 4.01. Conditions Precedent to Closing ........................................................ 60 Section 4.02. Conditions Precedent to Purchases ..................................................... 68 ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE AUTHORITY ...................................... 69
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Section 5.01. Existence; Authorization and Validity ................................................ 69 Section 5.02. Enforceability.................................................................................... 70 Section 5.03. Compliance with Laws and Contracts; No Conflict ............................. 70 Section 5.04. No Litigation ..................................................................................... 70 Section 5.05. No Event of Default........................................................................... 71 Section 5.06. Regulatory Approvals ........................................................................ 71 Section 5.07. Use of Proceeds of Series 2024A Bonds ............................................. 71 Section 5.08. Representations in Authority Documents ............................................ 71 Section 5.09. Correct Information ........................................................................... 72 Section 5.10. No Proposed Legal Changes .............................................................. 72 Section 5.11. The Trustee ....................................................................................... 72 Section 5.12. No Sovereign Immunity..................................................................... 72 Section 5.13. Security............................................................................................. 72 Section 5.14. Margin Regulations ........................................................................... 73 Section 5.15. Solvency ........................................................................................... 73 Section 5.16. Investment Company Act Status ........................................................ 73 Section 5.17. Anti-Corruption Laws and Sanctions .................................................. 73 Section 5.18. Usury ................................................................................................ 73 ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE CITY ............................................... 73 Section 6.01. Existence; Authorization and Validity ................................................ 73 Section 6.02. Enforceability.................................................................................... 74 Section 6.03. Compliance with Laws and Contracts; No Conflict ............................. 74 Section 6.04. No Litigation ..................................................................................... 74 Section 6.05. No Event of Default........................................................................... 75 Section 6.06. Regulatory Approvals ........................................................................ 75 Section 6.07. Use of Proceeds of Series 2024A Bonds ............................................. 75 Section 6.08. Representations in City Documents .................................................... 75 Section 6.09. Correct Information ........................................................................... 75 Section 6.10. No Proposed Legal Changes .............................................................. 76 Section 6.11. No Sovereign Immunity..................................................................... 76 Section 6.12. Security............................................................................................. 76 Section 6.13. Margin Regulations ........................................................................... 76 Section 6.14. Solvency ........................................................................................... 76 Section 6.15. Taxes ................................................................................................ 76 Section 6.16. Investment Company Act Status ........................................................ 76 Section 6.17. Anti-Corruption Laws and Sanctions .................................................. 76 Section 6.18. Usury ................................................................................................ 77 ARTICLE VII COVENANTS OF THE AUTHORITY ......................................................................... 77 Section 7.01. Notice of Default ............................................................................... 77 Section 7.02. Compliance With Laws...................................................................... 77 Section 7.03. Related Obligations ........................................................................... 77 Section 7.04. Certain Notices.................................................................................. 77 Section 7.05. Trustee; Appointment of Successor Trustee ........................................ 78 Section 7.06. Liens, Etc .......................................................................................... 78
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Section 7.07. Maintenance of Approvals; Filings, Etc .............................................. 78 Section 7.08. Payment of Other Liabilities .............................................................. 78 Section 7.09. Further Assurances ............................................................................ 78 Section 7.10. Maintenance of Existence; Mergers or Sales ....................................... 79 Section 7.11. Disclosure by Purchasers ................................................................... 79 Section 7.12. Federal Reserve Regulations .............................................................. 79 Section 7.13. Issuance of Additional Bonds............................................................. 79 Section 7.14. Waiver of Sovereign Immunity .......................................................... 79 Section 7.15. Authority Documents......................................................................... 79 Section 7.16. Sanctions Laws and Regulations ........................................................ 79 Section 7.17. Series 2024A Bond Ratings, Etc ........................................................ 80 Section 7.18. Use of Proceeds of Series 2024A Bonds ............................................. 80 Section 7.19. Restriction on Investments in Accounts .............................................. 80 Section 7.20. Notice of Inaccuracy of Authority Representations ............................. 80 ARTICLE VIII COVENANTS OF THE CITY .................................................................................. 80 Section 8.01. Notice of Default ............................................................................... 80 Section 8.02. Compliance With Laws...................................................................... 81 Section 8.03. Related Obligations ........................................................................... 81 Section 8.04. Certain Notices.................................................................................. 81 Section 8.05. Manager; Appointment of Successor Manager .................................... 81 Section 8.06. Liens, Etc .......................................................................................... 81 Section 8.07. Maintenance of Approvals; Filings, Etc .............................................. 82 Section 8.08. Payment of Other Liabilities .............................................................. 82 Section 8.09. Further Assurances ............................................................................ 82 Section 8.10. Maintenance of Existence; Mergers or Sales ....................................... 82 Section 8.11. Insurance........................................................................................... 82 Section 8.12. Disclosure by Purchasers ................................................................... 82 Section 8.13. Federal Reserve Regulations .............................................................. 82 Section 8.14. Waiver of Sovereign Immunity .......................................................... 83 Section 8.15. City Documents................................................................................. 83 Section 8.16. Sanctions Laws and Regulations ........................................................ 83 Section 8.17. Use of Proceeds of Series 2024A Bonds ............................................. 83 Section 8.18. Notice of Inaccuracy of City Representations ..................................... 83 ARTICLE IX EVENTS OF DE FAULT AND REMEDIES .................................................................... 83 Section 9.01. Events of Default............................................................................... 84 Section 9.02. Consequences of an Event of Default ................................................. 86 Section 9.03. Application of Payments .................................................................... 87 Section 9.04. Remedies Cumulative ........................................................................ 88 Section 9.05. Waivers or Omissions ........................................................................ 88 Section 9.06. Discontinuance of Proceedings .......................................................... 88 ARTICLE X EXPENSES AND INDE MNIFICATION .......................................................................... 88 Section 10.01. Expenses ........................................................................................... 88
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Section 10.02. Indemnification ................................................................................. 89 Section 10.03. Purchaser Reimbursement.................................................................. 90 Section 10.04. Limitation of Liability ....................................................................... 91 Section 10.05. Payments........................................................................................... 92 Section 10.06. Survival ............................................................................................ 92 ARTICLE XI THE ADMINISTRATIVE AGENT .............................................................................. 92 Section 11.01. Authorization and Action ................................................................... 92 Section 11.02. Administrative Agent’s Reliance, Limitation of Liability, Etc ............. 94 Section 11.03. Posting of Communications ............................................................... 96 Section 11.04. The Administrative Agent Individually .............................................. 97 Section 11.05. Successor Administrative Agent......................................................... 97 Section 11.06. Acknowledgements of Purchasers ...................................................... 98 Section 11.07. Certain ERISA Matters .................................................................... 100 ARTICLE XII MISCELLANEOUS .............................................................................................. 101 Section 12.01. Patriot Act Notice ............................................................................ 101 Section 12.02. Further Assurances .......................................................................... 101 Section 12.03. Amendments and Waivers ............................................................... 102 Section 12.04. No Implied Waiver; Cumulative Remedies ....................................... 103 Section 12.05. Notices............................................................................................ 104 Section 12.06. No Third-Party Rights ..................................................................... 107 Section 12.07. Severability ..................................................................................... 107 Section 12.08. Right of Setoff................................................................................. 107 Section 12.09. Governing Law; Waiver of Jury Trial; Jurisdiction ........................... 108 Section 12.10. Prior Understandings ....................................................................... 109 Section 12.11. Duration .......................................................................................... 109 Section 12.12. Counterparts .................................................................................... 109 Section 12.13. Successors and Assigns.................................................................... 109 Section 12.14. Headings ......................................................................................... 114 Section 12.15. Electronic Signatures ....................................................................... 114 Section 12.16. Arm’s Length Transaction ............................................................... 115 Section 12.17. Confidentiality ................................................................................ 115 Section 12.18. No Fiduciary Duty, Etc .................................................................... 116 Section 12.19. Acknowledgement and Consent to Bail -In of Affected Financial Institutions ...................................................................................... 116 Section 12.20. Acknowledgement Regarding Any Supported QFCs ......................... 117
SCHEDULES
SCHEDULE I — COMMITMENT AMOUNTS AND PERCENTAGES
EXHIBITS
EXHIBIT A — FORM OF REQUEST FOR PURCHASE
EXHIBIT B — FORM OF INTEREST ELECTION REQUEST
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EXHIBIT C — F ORM OF ASSIGNMENT AND ASSUMPTION
EXHIBIT D-1 — F ORM OF U.S. TAX COMPLIANCE CERTIFICATE (FOR FOREIGN PURCHASERS THAT ARE NOT PARTNERSHIPS FOR U.S. FEDERAL INCOME TAX PURPOSES) EXHIBIT D-2 — F ORM OF U.S. TAX COMPLIANCE CERTIFICATE (FOR FOREIGN PARTICIPANTS THAT ARE NOT PARTNERSHIPS FOR U.S. FEDERAL INCOME TAX PURPOSES) EXHIBIT D-3 — F ORM OF U.S. TAX COMPLIANCE CERTIFICATE (FOR FOREIGN PARTICIPANTS THAT ARE PARTNERSHIPS FOR U.S. FEDERAL INCOME TAX PURPOSES) EXHIBIT D-4 — F ORM OF U.S. TAX COMPLIANCE CERTIFICATE (FOR FOREIGN PURCHASERS THAT ARE PARTNERSHIPS FOR U.S. FEDERAL INCOME TAX PURPOSES)
EXHIBIT E — F ORM OF INVESTOR LETTER
EXHIBIT F — F ORM OF JOINDER AGREEMENT
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BOND PURCHASE AGREEMENT
This BOND PURCHASE AGREEMENT, dated as o f July 25, 2024 (as amended, modified or restated from time to time, this “ Agreement”), is entered into by and among ANAHEIM PUBLIC FINANCING AUTHORITY, a joint exercise of powers entity duly organized and existing under the laws of the State of California (the “ Authority”), CITY OF ANAHEIM, a municipal corporation and charter city duly organized and existing under and by virtue of its charter and the Constitution and laws of the State of California (the “ City”), THE PURCHASERS PARTY HERETO, and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Administrative A gent.
RECITALS
WHEREAS, the Authority and the City desire to finance the costs of the acquisition , design, construction, installation and/or equipping of certain capital improvement projects of the City; WHEREAS, in order to finance the Project, the City will lease certain Property to the Authority pursuant to the Ground Lease, and the City will sublease such Property back from the Authority pursuant to the Lease Agreement;
WHEREAS, the City and the Authority have determined that it would be in the best interests of the City and the Authority to provide the funds necessary to finance certain costs of the Project through the issuance by the Authority of one or more series of its Lease Revenue Bonds (Anaheim Arena Improvement Project) pursuant to a Master Indenture, dated as of July 1, 2024, by and among the Authority, the City and the Trustee (the “ Master Indenture”); W
HEREAS, pursuant to the Master Indenture, as supplemented by a First Supplemental Indenture, dated as of July 1, 2024, by and among the Authority, the City and the Trustee (the “ First Supplemental Indenture ” and, together with the Master Indenture and any additional Supplemental Indentures thereto, the “ Indenture”), the Authority will issue its Anaheim Public Financing Authority Taxable Lease Revenue Bonds (Anaheim Arena Improvement Project), 2024 Series A, in the aggregate principal amount of up to $400,000,000 (the “Series 2024A Bonds ”), which Series 2024A Bonds are payable from the Base Rental Payments to be made by the City under the Lease Agreement ; WHEREAS, all rights to receive the Base Rental Payments and other Lease Revenues have been assigned without recourse by the Authority to the Trustee pursuant to the Assignment Agreement, executed and delivered in connection with the issuance of the Series 2024A Bonds; WHEREAS, the Series 2024A Bonds will be payable equally and ratably from the Base Rental Payments;
WHEREAS, the Purchasers (as hereinafter defined) have severally agreed to extend credit to the Authority through the purchase of Series 2024A Bonds in the aggregate principal amount of $325,255,000 (the “Initial Series 2024A Bonds”) in accordance with the terms hereof and the terms of the Master Indenture, as supplemented by the First Supplemental Indenture and, as a condition to the purchase of the Initial Series 2024A Bonds, the Purchasers have required the Authority and the City to enter into this Agreement;
W
HEREAS, in order to provide for the authentication and delivery of the Series 2024A Bonds, to establish and declare the terms and conditions upon which the Series 2024A Bonds are to be
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issued and secured and to secure the payment of the principal thereof, premium, if any, and interest thereon, the Authority and the City have authorized the execution and delivery of this Agreement and the First Supplemental Indenture ; and
WHEREAS, all acts, conditions and things required by law to exist, to have happened and to have been performed precedent to and in connection with the execution and entering into of this Agreement do exist, have happened and have been performed in regular and due time, form and manner as required by law, and the P arties are now duly authorized to execute and enter into this Agreement .
Now, THEREFORE, to induce the Purchasers to purchase the Initial Series 2024A Bonds, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties h ereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms. In addition to the terms defined in the recitals and elsewhere in this Agreement, the following terms shall have the following meanings:
“ABR”, when used in reference to any Purchase, refers to whether such Purchase bears interest at a rate determined by reference to the Alternate Base Rate. “ABR Purchase” means a Purchase that bears interest at a rate based on the applicable Adjusted ABR Rate .
“Act” means the Marks -Roos Local Bond Pooling Act of 1985, commencing with Section 6584 of the California Government Code, and other applicable laws of the State of California. “Account Collateral ” has the meaning set forth in the Accounts Agreement. “Accounts Agreement ” means the Accounts Agreement, dated as o f July 25, 2024, by and between the Manager and the Trustee.
“Accounts Bank” means Pacific Premier Bank, a California state -chartered banking corporation and any successor or assign thereof permitted under the Accounts Control Agreement . “Accounts Control Agreement” means the Accounts Control Agreement, date d as of July 25, 2024, by and among the Manager, the Trustee and the Accounts Bank, as amended or replaced from time to time.
“Additional Bonds ” means Bonds (other than the Series 2024A Bonds ) issued in accordance with the provisions of the Indentur e.
“Additional Bondholders” means the Owners of the Additional Bonds from time to time . “Adjusted ABR Rate ” means, (a) with respect to the Initial Series 2024A Bonds, an interest rate per annum equal to (i) the Alternate Base Rate, plus (ii) 3.40%, and (b) with respect to the Incremental Series 2024A Bonds , an interest rate per annum equal to (i) the Alternate Base Rate, plus (ii) an interest rate spread agreed to in writing by the Administrative Agent and an Authorized Officer of the Authority and provided to the Trustee .
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“Adjusted Daily Simple SOFR ” means, (a) with respect to the Initial Series 2024A Bonds, an interest rate per annum equal to (i) the Daily Simple SOFR, plus (ii) 0.10%, plus (iii) 3.40%, and (b) with respect to the Incremental Series 2024A Bonds, an interest rate per annum equal to (i) the Daily Simple SOFR, plus (ii) 0.10%, plus (iii) an interest rate spread agreed to in writing by the Administrative Agent and an Authorized Officer of the Authority and provided to the Trustee; provided that if the applicable Adjusted Daily Simple SOFR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement. “A djusted Term SOFR Rate ” means, (a) with respect to the Initial Series 2024A Bonds , for any Interest Period, an interest rate per annum equal to (i) the Term SOFR Rate for such Interest Period, plus ( ii) 0.10%, plus ( iii) 3.40%, and (b) with respect to the Incremental Series 2024A Bonds , for any Interest Period, an interest rate per annum equal to (i) the Term SOFR Rate for such Interest Period, plus (ii) 0.10%, plus (iii) an interest rate spread agreed to in writing by the Administrative Agent and an Authorized Officer of the Authorit y and provided to the Trustee ; provided that if the applicable Adjusted Term SOFR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement . “Administrative Agent ” means JPMorgan Chase Bank, National Association, in its capacity as administrative agent for the Purchasers and the Series 2024A Bondholders hereunder. “Administrative Agent Fees ” has the meaning set forth in Section 3.04(g) ( Fees). “Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Affected Financial Institution ” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified . For purposes of this definition, “ Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise ; and the terms “Controlling” and “Co ntrolled” have meanings correlative thereto. “Agreement” has the meaning set forth in the introductory paragraph hereof . “Alternate Base Rate” means, for any day, a rate per annum equal to the greater of (a) the Prime Rate in effect on such day , and (b) the NYFRB Rate in effect on such day plus 0.5% . Any change in the Alternate Base Rate due to a change in the Prime Rate or the NYFRB Rat e shall be effective from and including the effective date of such change in the Prime Rate or the NYFRB Rat e, respectively. For the avoidance of doubt, if the Alternate Base Rate as determined pursuant to the foregoing would be less than 1.0%, such rate shall be deemed to be 1.0% for purposes of this Agreement.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Authority or the City from time to time concerning or relating to bribery or corruption.
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“Applicable Law ” means, collectively, (a) all international, foreign, federal, state and local constitutions, statutes, treaties, rules, guidelines, regulations, orders, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable admi nistrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority; and (b) all applicable provisions of all (i) Governmental Approvals and (ii) orders, decisions, judgments, writs, injunctions and decrees of all courts (whether at law or in equity) and arbitrators .
“Applicable Percentage ” means, with respect to any Purchaser, the percentage of the total Commitments represented by such Purchaser’s Commitment; provided that, in the case of Section 2.12 (Defaulting Purchasers) when a Defaulting Purchaser shall exist, “Applicable Percentage” shall mean the percentage of the total Commitments (disregarding any Defaulting Purchaser’s Commitment) represented by such Purchaser’s Commitment. If the Commitments have terminated or expired, the Applicable Percentages shall be determined b ased upon the Commitments most recently in effect, giving effect to any assignments and to any Purchaser’s status as a Defaulting Purchaser at the time of determination.
“Approved Electronic Platform ” has the meaning set forth in Section 11.03(a) ( Posting of Communications).
“Architect” means (a) with respect to the Parking/Signage portion of the Project, Choate Parking Consultants, Inc ., and (b) with respect to the Arena Renovations portion of the Project, the architect(s) appointed by the Developer pursuant to a consulting services agreement(s) . “Architect Agreements” means (a) with respect to the Parking/Signage portion of the Project, collectively, (i) the Consulting Services Agreement ( Parking Deck B), dated as of April 8, 2021, by and between the Developer and Choate Parking Consultants, Inc., as amended by Task Order Amendment # 1, dated as of November 29, 2022, by and between the Developer and Choate Parking Consultants, Inc. , (ii) the Consulting Services Agreement (P arking Deck C), dated as of April 8, 2021, by and between the Developer and Choate Parking Consultants, Inc., as amended by Task Order Amendment # 1, dated as of November 29, 2022, by and between the Developer and Choate Parking Consultants, Inc. , and (iii) the Consulting Services Agr eement (Parking Deck D ), dated as of April 8, 2021, by and between the Developer and Choate Parking Consultants, Inc. , as amended by Task Order Amendment # 1, dated as of November 29, 2022, by and between the Developer and Choate Parking Consultants, Inc. ; and (b) with respect to the Arena Renovations portion of the Project, the consulting services agreement(s) entered into by and between the Developer and the architect(s) . “Arena” means the approximate 19,000 seat arena and the Beneficial Interests currently known as the Honda Center located at 2695 East Katella Avenue, Anaheim, California and situated on the Land (as defined in the Lease Agreement) .
“Arranger” means JPMorgan Chase Bank, National Association, in its capacity as sole bookrunner and sole lead arranger hereunder.
“Assignment and Assumption” means an assignment and assumption entered into by a Purchaser and an assignee (with the consent of any party whose consent is required by Section 12.13 (Successors and Assigns ), and accepted by the Administrative Agent, in the form of Exhibi t C (Form
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of Assignment and Assumption) or any other form (including electronic records generated by the use of an electronic platform) approved by the Administrative Agent. “Assignment Agreement” means the Assignment Agreement, dated as o f July 1, 2024, by and between the Authority and the Trustee.
“Authority” has the meaning set forth in the introductory paragraph hereof . “Authority Direction Letter” means the Authority Direction Letter Agreement, date d as of July 1, 2024, by and among the Authority, the Manager, the Developer, the Trustee, and the Administrative Agen t.
“Authority Documents ” has the meaning set forth in Section 5.01(a) ( Existence; Authorization and Validity ).
“Authorized Denominations” mean s $100,000 and any $1,000 integral multiple thereof . “Authorized Designee ” has the meaning assigned to such term in the Authority Direction Letter.
“Authorized Officer of the Authority ” has the meaning assigned to the term “ Authorized Authority Representative” in the Master Indenture .
“Authorized Officer of the City ” has the meaning assigned to the term “ Authorized City Representative” in the Master Indenture .
“Available Tenor” means, as of any date of determination and with respect to the then- current Benchmark, as applicable, any tenor for such Benchmark (or component thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof), as applicable, that is or may be used for determining the length of an Interest Period for any term rate or otherwise, for determining any frequency of making payments of interest calculated pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then- removed from the definition of “ Interest Period ” pursuant t o Section 2.09(e) (Alternate Rate of Interest).
“Availability Period ” means the Initial Availability Period and/or the Incremental Availability Period.
“Bail-In Action ” means the exercise of any Write -Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution. “Bail-In Legislation ” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from ti me to time which is described in the EU Bail- In Legislation Schedule , and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applic able in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
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“Bankruptcy Code ” means Title 11 of the United States Code entitled “Bankruptcy”, as now and hereafter in effect, or any successor statute.
“Bankruptcy Event ” means, with respect to any Person, such Person becomes the subject of a voluntary or involuntary bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Per son charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment or has had any order for relief in such proceeding entered in respect thereof; provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, unless such ownership interest results in or provides such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgme nts or writs of attachment on its assets or permits such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.
“Base Rental Payments ” means all amounts payable to the Authority by the City as Base Rental Payments pursuant to Section 3.01 (Base Rental Payments) of the Lease Agreement. “Benchmark” means, initially, with respect to any (i) RFR Purchase, the Daily Simple SOFR or (ii) Term Benchmark Purchase, the Term SOFR Rate; provided that if a Benchmark Transition Event, and the related Benchmark Replacement Date have occurred with respect to the Daily Simple SOFR or Term SOFR Rate, as applicable, or the then -current Benchmark, then “Benchmark” means the applicable Benchmark Replaceme nt to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant t o Section 2.09(b) (Alternate Rate of Interest). “Benchmark Replacement ” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:
(1) the applicable Adjusted Daily Simple SOFR ; or
(2) the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Authority (or the Manager as its Authorized Designee pursuant to the Authority Direction Letter ) as the replacement for the then -current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then- prevailing market convention for determining a benchmark rate as a replacement for the then - current Benchmark for dollar -denominated syndicated credit facilities at such time in the United States and (b) the related Benchmark Replacement Adjustment; If the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and th e First Supplemental Indenture .
“Benchmark Replacement Adjustment ” means, with respect to any replacement of the then - current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period
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and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Authority ( or the Manager as its Authorized Designee pursuant to the Authority Direction Letter ) for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then- prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjust ment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for dollar -denominated syndicated credit facilities at such time . “Benchmark Replacement Conforming Changes ” means, with respect to any Benchmark Replacement and/or any Term Benchmark Purchase, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate” , the definition of “Business Day”, the definition of “U.S. Government Securities Business Day” , the definition of “Interest Period”, timing and frequency of determining rates and making payments of interest, timing of request s for purchase or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of thi s Agreement and th e First Supplemental Indenture ). “Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to occur of the following events with respect to such then- current Benchmark:
(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event ”, the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or (2) in the case of clause (3) of the definition of “Benchmark Transition Event ”, the first date on which such Benchmark (or the published component used in the calculation thereof) has been or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or component thereof) have been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided, that such non- representativeness will be determined by reference to the most recent statement or publication referenced in such clause (3) and even if such Benchmark (or component thereof) or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date .
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination,
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the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination, and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then -current Available Tenors of such Benchmark (or the published component used in the calculation thereof). “Benchmark Transition Event ” means, with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then- current Benchmark:
(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely ; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, any Avai lable Tenor of such Benchmark (or such component thereof );
(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, the CME Term SOFR Administrator, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case, which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof); or (3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be, representative .
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then -current Available Tenor of such Benchmark (or the published component used in the calculation thereof). “Benchmark Unavailability Period ” means, with respect to any Benchmark, the period (if any) ( a) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then -current Benchmark for all purposes hereunder and under th e First Supplemental Indenture in accordance with Section 2.09 ( Alternate Rate of Interest), and (b) ending at the time that a Benchmark Replacement has
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replaced such then -current Benchmark for all purposes hereunder and under the First Supplemental Indenture in accordance with Section 2.09 ( Alternate Rate of Interest). “Beneficial Interests” means, collectively, (a) the Reciprocal Parking Easement Agreement; (b) the Reciprocal Blanket Access Easement Agreement; (c) the Loading Dock Easement Agreement; and (d) each other easement or other agreement recorded in the Official Records of The Orange County Clerk-Recorder’s Office, the provisions of which are intended to benefit the Land. “Bond Counsel” means Stradling Yocca Carlson & Rauth, a Professional Corporation or such other counsel of recognized national standing in the field of law relating to municipal bonds, appointed and paid by the Authority or the City.
“Bondholders” means, collectively, the Series 2024A Bondholder s and a ny Additional Bondholders.
“Bonds” means, collectively, the Series 2024A Bonds and any Additional Bonds. “Business Day ” means, any day (other than a Saturday or a Sunday) on which banks are open for business in New York City; provided that, in addition to the foregoing, a Business Day shall be any such day that is only a U.S. Government Securities Business Day (a) in relation to RFR Purchases and any interest rate settings, fundings, disbursements, settlements or payments of any such RFR Purchases, or any other dealings of such RFR Purchases, and (b) in relation to Purchases referencing the applicable Adjusted Term SOFR Rate and any interest rate settings, fundings, disbursements, settlements or payments of any such Purchases referencing the applicable Adjusted Term SOFR Rate or any other dealings of such Purchases referencing the applicable Adjusted Term SOFR Rate . “C
hange in Law ” means the occurrence after the date of this Agreement of (a) the adoption of or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority, or (c) compliance b y any Purchaser ( or, for purposes of Section 3.10(b) (Increased Costs), by any lending office of such Purchaser or by such Purchaser’s holding company, if any ) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement ; provided t hat, notwithstanding anything herein to the contrary, (i) the Dodd- Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith or in the implementation thereof and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall, in each case, be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented.
“City” has the meaning set forth in the introductory paragraph hereof . “City Documents” has the meaning set forth in Section 6.01(a) ( Existence; Authorization and Validity).
“Closing Date” means the Initial Closing Date and/or the Incremental Closing Date.
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“CME Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward- looking term Secured Overnight Financing Rate (SOFR) (or a successor administrator) .
“Collateral” means, collectively, all tangible and intangible property, real and personal, of the Authority, the City, the Manager and the Developer tha t is or purports to be the subject of a Lien granted to the Trustee ( for the benefit of the Owners of the Bonds ) to secure the whole or any part of the Obligations under the Collateral Documents, and shall include, without limitation, to the extent set forth in the Collateral Docume nts, all casualty insurance proceeds and condemnation awards with respect to any of the foregoing.
“Collateral Documents” means, collectively, (a) the Indentur e (including the First Supplemental Indenture) , (b) the Assignment Agreement, (c) the Accounts Agreement, (d) the Accounts Control Agreement, (e) the Lease Agreement, (f) the Security Agreement, (g) the Consents to Collateral Assignment, (h) the Non-Relocation Agreement, ( i) the Recognition and Acknowledgment Agreement, (j) the Recognition, Non- Disturbance and Attornment Agreement , and ( k) all other instruments, documents and agreements (including any deposit account control agreements, blocked account control agreements or securities account control agreements, as applicable) delivered pursuant to this Agreement or any of the other Financing Documents .
“Commitment” means, with respect to each Purchaser, such Purchaser’s Initial Available Commitment, and such Purchaser’s commitment in respect of the Incremental Available Amount, if any.
“Commitment Amount ” means for each Purchaser, the amount set forth opposite such Purchaser’s name on Schedul e I (Commitment Amounts and Percentages ) attached hereto . “Commitment Expiration Date ” means the earliest to occur of (a)(i) with respect to the Initial Series 2024A Bonds, July 25, 2027 (the “Initial Commitment Expiration Date ”) and (ii) with respect to the Incremental Series 2024A Bonds, the commitment expiration date agreed to in writing by the Administrative Agent and an Authorized Officer of the Authority (the “Incremental Commitmen t Expiration Date ”), in each case as the same may be extended from time to time in accordance wi th the terms of Section 3.07 ( Purchaser Consent to Extension of Commitment ), (b) the date on which the Administrative Agent (acting at the request of the Required Purchasers) provides notice to the Trustee and the Authority that the Commitment has terminated pursuant to Section 9.02(c) ( Consequences of an Event of Default ) as the result of the occurrence of an Event of Default, and (c) the date on which the Commitment is otherwise terminated or reduced to zero in accordance with the terms hereof. “Commitment Fee ” means the fee payable by the Authority pursuant to Section 3.04( a) (Fees).
“Commitment Fee Rate ” means the Initial Commitment Fee Rate and/or the Incremental Commitment Fee Rate .
“Communications” means, collectively , any notice, demand, communication, information, document or other material provided by or on behalf of the Authority, the City or the Manager pursuant to any Financing Document or the transactions contemplated therein which is distributed by the Administrative Agent or any Purchaser by means of electronic communications pursuant to Section
11.03 (Posting of Communications), including through an Approved Electronic Platform .
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“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes . “Consents to Collateral Assignment ” means, collectively, each of those certain Consents to Collateral Assignment, dated as of the applicable Closing Date, from t he relevant counterparty to a Development Document, as accepted and agreed to by the Developer and the Trustee . “Construction Agreements ” means (a) with respect to the Parking/Signage portion of the Project, collectively, (i) th e Construction Agreement (OCVIBE - Parking Deck B) , dated as of February 27, 2024, by and between the Developer and Bomel Construction Company, Inc . (the “Bomel (Parking Deck B) Construction Agreement”), (ii) the Construction Agreement (OCVIBE – Parking Deck C) , dated as of February 27, 2024, by and between the Developer and Bomel Construction Company, Inc. (the “Bomel (Parking Deck C) Construction Agreement”), and (i ii) the Construction Agreement (OCVIBE – Parking Deck D ), dated as of March 27, 2024, by and between the Developer and Swinerton Builders (the “Swinerton (Parking Deck D) Construction Agreement ”); and (b) with respect to the Arena Renovations portion of the Project, the construction agreement(s) entered into by and between t he Developer and the contractor(s) .
“Construction Budget ” means (a) with respect to the Initial Series 2024A Bonds, the comprehensive budget for Project Costs relating to the Parking/Signage portion of the Project delivered to the Administrative Agent on or prior to the Initial Closing Date, in a form acceptable to the Administrative Agent; and (b) with respect to the Incremental Series 2024A Bonds, the comprehensive budget for Project Costs relating to the Arena Renovations portion of the Project delivered to the Administrative Agent on or prior to the Incremental Closing Date, in a form acceptable to the Administrative Agent.
“Construction Draw Agreement ” means the Construction Draw Agreement , dated as o f July 25, 2024, by and among the Manager, the Developer, the Trustee and the Administrative Agent . “Construction Monitor ” means CM Advisors, LLC , or any other independent engineering firm selected by the Administrative Agent and approved by the Manager (such approval not to be unreasonably withheld, conditioned or delayed) .
“Contractors” means (a) with respect to the Parking/Signage portion of the Project, collectively, B omel Construction Company, Inc. and Swinerton Builders, and ( b) with respect to the Arena Renovations portion of the Project, the contractor(s) appointed by the Developer pursuant to a construction a greement(s).
“Corresponding Tenor ” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor . “Covenant Agreement ” means the Covenant Agreement , dated as o f July 25, 2024, by and among the Manager, the Trustee and the Administrative Agent. “Credit Party ” and “Credit Parties ” means, individually or collectively, as applicable, the Administrative Agent and each Purchaser and other Series 2024A Bondholder. “Daily Simple SOFR ” means, for any day (a “ SOFR Rate Day ”), a rate per annum equal to
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SOFR for the day (such day, the “SOFR Determination Date”) that is five (5) U.S. Government Securities Business Days prior to (i) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Authority, the Manager or the Trustee. If by 5:00 p.m. (New York City time) on the second (2nd) U.S. Government Securities Business Day immediately following any SOFR Determination Date, SOFR in respect of such SOFR Determination Date has not been published on the SOFR Administrator’s Website and a Benchmark Replacement Date with respect to the Daily Simple SOFR has not occurred, then SOFR for such SOFR Determination Date will be SOFR as published in respe ct of the first preceding U.S. Government Securities Business Day for which such SOFR was published on the SOFR Administrator’s Website . “Date of Purchase” means each date on which Purchases are made by the Purchasers pursuant to Section 2.01(b) ( Purchases).
“DBRS” means DBRS, Inc.
“Debt” of any Person means at any date, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of business, (d) all obligations of such Person as lessee under capital leases, (e) all obligations of such Person to purchase securities (or other assets) that arise out of or in connection with the sale of the same or substantially similar securities or assets, (f) all obligations of such Person to reimburse any bank or any other Person in respect of amounts paid under a letter of credit or any other similar instrument, (g) all Debt of others secured by a Lien on any asset of such Person, whether or not such Debt is assumed by such Person, and (h) all Guarantees by such Person of Debt of other Persons . “Debt Service Loans ” has the meaning set forth in the Accounts Agreement. “Default” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Defaul t. “Default Rate ” means, for any day, a rate of interest per annum equal to (a) with respect to any Series 2024A Bonds accruing interest at the applicable Adjusted Term SOFR Rate or the applicable Adjusted Daily Simple SOFR through the last day of the applicable interest period , the applicable Adjusted Term SOFR Rate or applicable Adjusted Daily Simple SOFR plus 2% and (b) thereafter , the applicable Adjusted ABR Rate plus 2%.
“Defaulting Purchaser” means any Purchaser that (a) has failed, within two (2) Business Days of the date required to be funded or paid, to (i) make any required Purchase with respect to the Series 2024A Bonds or (ii) pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Purchaser notifies the Administrative Agent in writing that such failure is the result of such Purchaser having been notified by the Administrative Agent that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied; (b) has notified the Authority or any Credit Party in writing, or has made a public statement to the effect that it does not intend or expect to co mply with any of its funding obligations
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under this Agreement (unless such writing or public statement indicates that such position is based on such Purchaser’s good faith determination not to fund due to the Administrative Agent’s notice to it that a condition precedent to making a Purchase under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit; (c) has failed, within three (3) Business Days after request by the Administrative Agent, acting in good faith, to provide a certification in writing from an authorized officer of such Purchaser that it will comply with its obligations (and is financially able to meet such obligations as of the date of certification) to make Purchases under this Agreement, provided that such Purchaser shall cease to be a Defaulting Purchaser pursuant to this clause (c) upon the Administrative Agent’s receipt of such certification in form and substance satisfactory to it; or (d) has become the subject of (i) a Bankruptcy Event or (ii) a Bail-In Action. “Designated Purchaser” and “Designated Purchasers ” ha ve the meaning s set forth in Section 2.05( b) (Increase of Commitment).
“Developer” means Anaheim Real Estate Partners, LLC, a California limited liability company and an Affiliate of the Manager , and any permitted successor or assign thereof . “Development” means (a) with respect to the Parking/Signage portion of the Project, the design, development, construction, installation and equipping of the Parking/Signage pursuant to the applicable Plans and Specifications; and (b) with respect to the Arena Renovations portion of the Project, the design, development, construction, installation and equipping of the Arena Renovations pursuant to the applicable Plans and Specifications.
“Development Agreement ” means the Development Agreement ( No. 2020-00004) , dated October 4, 2022, by and between the City, the Developer, TS Anaheim, LLC and FCD, LLC . “Development Documents ” means, collectively, (a) the Manager Delegation of Duties Agreement, (b) the Development Agreement, (c) the Architect Agreements, (d) the Construction Agreements, (e) the Surety Documents, and (f) the Plans and Specifications. “District Sign Agreement ” means the District Sign Agreement, dated as of September 27, 2022, between the City and the Manager .
“Dollars”, “ dollars” or “$” refers to lawful money of the United States of America. “EEA Financial Institution ” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution describe d in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country ” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority ” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
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“Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record .
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder. “EU Bail-In Legislation Schedule ” means the EU Bail -In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time. “Event of Default ” has the meaning set forth in Section 9.01 (Events of Default). “Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Purchaser, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Purchaser, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Purchaser with respect to an applicable interest in a Series 2024A Bond or Commitment pursuant to a law in effect on the date on which (i) such Purchaser acquires such interest in the Series 2024A Bonds or Commitment (other than pursuant to an assignment request by the Authority under Section
2.11(b) (Mitigation Obligations; Replacement of Purchasers) or (ii) such Purchaser changes its lending office, except in each case to the extent that, pursuant to Section 3.05 ( Withholding of Taxes; Gross - Up), amounts with respect to such Taxes were payable either to such Purchaser’s assignor immediately before such Purchaser acquired the applicable interest in a Series 2024A Bond or Commitment or to such Purchaser immediately before it changed its lending office , (c) Taxes attributable to such Recipient’s failure to comply with Section 3.05(f) ( Withholding of Taxes; Gross -Up), and (d) any withholding Taxes imposed under FATCA.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, a ny agreement entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code. “Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as shall be set forth on the NYFRB’s Website from time to time, and published on the next succe eding Business Day by the NYFRB as the effective federal funds rate; provided that if the Federal Funds Effective Rate as so determined would be less than zero , such rate shall be deemed to be zero for the purposes of this Agre ement and the First Supplemental Indenture . “Federal Reserve Board ” means the Board of Governors of the Federal Reserve System of the United States of America.
“Fee Letter” means (a) with respect to the Initial Series 2024A Bonds, the fee letter dated July 25, 2024, between JPMorgan Chase Bank, National Association and the Manager, as acknowledged
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and agreed to by the Authority; and (b) with respect to the Incremental Series 2024A Bonds, the fee letter dated the Incremental Closing Date, between JPMorgan Chase Bank, National Association and the Manager, as acknowledged and agreed to by the Authority. “Final Completion” has the meaning set forth in the Covenant Agreement. “Financing Costs ” means interest, fees, costs, expenses and other amounts incurred in connection with this Agreement and the other Financing Documents, which may include, but are not limited to, Commitment Fees, Reduction Fees , Termination Fees, fees and charges of the Purchaser s and the Administrative Agent, legal fees and charges, professional consultants’ fees, premiums and other costs, charges and fees, including those incurred by the Authority in connection with the foregoing.
“Financing Costs Sublimit ” has the meaning set forth in Section 5.07 ( Use of Proceeds of Series 2024A Bonds).
“Financing Costs Sublimit Expiration Date ” has the meaning set forth in Section 5.07 ( Use of Proceeds of Series 2024A Bonds ).
“Financing Documents ” means, collectively, this Agreement, the Series 2024A Bonds, the Collateral Documents, the Construction Draw Agreement, the Authority Direction Letter, the Site Leases, the Ground Lease , the Management Agreement , the Covenant Agreement, the NHL Team Agreement, the Fee Letter, and all agreements, certificates and other documents related thereto or executed in connection therewith.
“First Supplemental Indenture ” has the meaning set forth in the recitals hereof . “Fitch” means Fitch Ratings, Inc.
“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the applicable Adjusted Term SOFR Rate or the applicable Adjusted Daily Simple SOFR, as applicable. For the avoidance of doubt , the initial Floor for each of the applicable Adjusted Term SOFR Rate or the applicable Adjusted Daily Simple SOFR shall be zero. “Force Majeure Event ” means any act, event or condition (except, in each case, for the payment of money) which is beyond the reasonable control of the party asserting the Force Majeure (defined below), which wholly or partially prevents or delays the performance of any of the duties, responsibilities or obligations of the party asserting the Force Majeure. The term “ Force Majeure ” shall include, but not be limited to, an act of God; an act of the public enemy; civil disturbance or unrest; lawsuits; injunctions; lightning; fire, explosion or other serious casualty; terrorist attack; strike, lock-out or labor dispute other than a Work Stoppage; accident or sabotage; unusually severe weather (including, but not limited to, hurricane, earthquake, tornado, landslide or flood); w ar (whether declared or not); condemnation or taking by the action of any governmental body on behalf of any public, quasi -governmental or private entity; other governmental action or change in law ; a governmentally declared epidemic or pandemic; or shortages or failures of sources of labor, material, energy, fuel, equipment or transportation.
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“GAAP” means generally accepted accounting principles in effect from time to time in the United States applied on a consistent basis.
“Governmental Approval ” means any approval, authorization, permit, license, directive, consent order or consent decree of or from any Governmental Authority. “Governmental Authority ” means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including, without limitation, the City of Anaheim) .
“Ground Lease” means the Ground Lease, dated as o f July 1, 2024, by and between the City, as lessor, and the Authority, as lessee.
“Guarantee” of or by any Person (the “ guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Debt or other obligation of any other Person (the “ primary obligor ”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Debt or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Debt or other obligation, or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Debt or obligation; provided, th at the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business . “Historical Debt Service Coverage Ratio ” has the meaning set forth in the Accounts Agreement.
“Historical Test Period ” has the meaning set forth in the Accounts Agreement. “Incremental Available Amount ” means, subject to satisfaction or waiver of the conditions precedent in accordance with Section 2.05(c) ( Increase of Commitment ), with respect to each Purchaser, the amount set forth on Schedule I ( Commitment Amounts and Percentages ) opposite such Purchaser’s name, or in the Joinder Agreement , the Assignment and Assumption or other documentation or record (as such term is defined in Section 9- 102(a)(70) of the New York Uniform Commercial Code) as provided in Section 12.13(b)(i i)(C) (Assignments ), pursuant to which such Purchaser shall have assumed its Incremental Available Amount , as applicable, and giving effect to (a) any reduction in such amount from time to time pursuant to Section 2.09 ( Termination and Reduction of Commitments ) and (b) any reduction or increase in such amount from time to time pursuant to assignments by or to such Purchaser pursuant to Section 12.13 ( Successors and Assigns ); provided, that at no time shall (i) the aggregate principal amount of required Purchases under the Incremental Series 2024A Bonds of any Purchaser exceed its Commitment Amount and (ii) the sum of the aggregate principal amount of all Purchases under the Incremental Series 2024A Bonds exceed the Incremental Available Amount. The initial aggregate amount of the Purchasers’ Incremental Available Amount is $74,745,000.
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“Incremental Availability Period ” means the period from and including the Incremental Closing Date to but excluding the earlier of the Incremental Series 2024A Maturity Date and the applicable Commitment Expiration Date .
“Incremental Closing Date ” means the date on which the conditions precedent set forth in Section 2.05(c) ( Increase of Commitment ) are satisfied (or waived in accordance with Section 12.03 (Amendments and Waivers)).
“Incremental Commitment Fee Rate ” means, with respect to the Incremental Series 2024A Bonds, for any day, a rate per annum agreed to in writing by the Administrative Agent and an Authorized Officer of the Authority.
“Incremental Optional Prepayment Date” means, with respect to the Incremental Series 2024A Bonds, any Business Day commencing on the date agreed to in writing by the Administrative Agent and an Authorized Officer of the Authority and provided to the Trustee . “Incremental Principal Payment Date ” means, with respect to the Incremental Series 2024A Bonds, the specified date of each year, commencing on the payment date agreed to in writing by the Administrative Agent and an Authorized Officer of the Authority and provided to the Trustee . “Incremental Series 2024A Bonds ” means any Series 2024A Bonds representing the Incremental Available Amount issued in accordance with the provisions of Section 2.05(c) ( Increase of Commitment) and pursuant to the Master Indenture, as supplemented by the First Supplemental Indenture.
“Incremental Series 2024A Maturity Date ” means, with respect to the Incremental Series 2024A Bonds, the maturity date agreed to in writing by the Administrative Agent and an Authorized Officer of the Authority and provided to the Trustee .
“Indemnified Taxes” means Taxes other than Excluded Taxes. “Indemnitee” has the meaning set forth in Section 10.01(a) (Indemnification). “Indenture” has the meaning set forth in the recitals hereo f. “Initial Available Commitment ” means, on any date, with respect to each Purchaser, the amount set forth on Schedule I ( Commitment Amounts and Percentages ) opposite such Purchaser’s name, or in the Assignment and Assumption or other documentation or record (as such term is defined in Section 9- 102(a)(70) of the New York Uniform Commercial Code) as provided in Section
12.13(b)(ii)(C) (Assignments ), pursuant to which such Purchaser shall have assumed its Initial Available Commitment, as applicable, and giving effect to (a) any reduction in such amount from time to time pursuant to Section 2.09 ( Termination and Reduction of Commitments ), (b) any reduction in such amount on the Financing Costs Sublimit Expiration Date , and (c) any reduction or increase in such amount from time to time pursuant to assignments by or to such Purchaser pursuant to Section
12.13 ( Successors and Assigns ); provided, that at no time shall (i) the aggregate principal amount of required Purchases under the Series 2024A Bonds of any Purchaser exceed its Commitment Amount and (ii) the sum of the aggregate principal amount of all Purchases under the Series 2024A Bonds exceed the Initial Availa ble Commitment. The initial aggregate amount of the Purchasers’ Initial
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Available Commitment is $325,255,000 (as may be reduced b y any Undrawn Financing Costs Sublimit).
“Initial Availability Period ” means the period from and including the Initial Closing Date to but excluding the earlier of the Initial Series 2024A Maturity Date and the applicable Commitment Expiration Date.
“Initial Closing Date ” means July 25, 2024, subject to the satisfaction or waiver by the Purchasers of the conditions precedent set forth in Section 4.01 ( Conditions Precedent to Closing) . “Initial Commitment Fee Rate ” means, with respect to the Initial Series 2024A Bonds, for any day, 1.25% per annum.
“Initial Optional Prepayment Date ” means, with respect to the Initial Series 2024A Bonds, any Business Day on and after July 25, 2027.
“Initial Principal Payment Date ” means, with respect to the Initial Series 2024A Bonds, July 25 of each year, commencing on July 25, 2027.
“Initial Purchase ” means the initial purchase of Initial Series 2024A Bonds made by the Purchasers on the Initial Closing Date.
“Initial Series 2024A Bonds ” has the meaning set forth in the recitals hereof . “Initial Series 2024A Maturity Date ” means, with respect to the Initial Series 2024A Bonds, July 25, 2029.
“Insurance and Condemnation Proceeds ” has the meaning set forth in the Indenture . “Insurance Broker(s) ” means, individually or collectively, (a) Arthur J. Gallagher Risk Management Services LLC , and (b) NFP Property & Casualty Services In c. “Insurance Closing Certificates ” means, collectively, (i) an insurance closing certificate from Arthur J. Gallagher Risk Management Services LLC relating to the builders risk property and general liability insurance for the applicable Project and the general liability and earthquake insurance for the Honda Center , and (b) an insurance closing certificate from NFP Property & Casualty Services In c. relating to the property insurance for the Arena and the Property, in each case in form and substance satisfactory to the Administrative Agent.
“Insurance Reports ” means, collectively, (i) insurance reports prepared by Arthur J.
Gallagher Risk Management Services LLC relating to the builders risk property and general liability insurance for the applicable Project and the general liability and earthquake insurance for the Honda Center, and (b) an insurance report prepared by NFP Property & Casualty Services Inc . relating to the property insurance for the Arena and the Property, in each case in form and substance satisfactory to the Administrative Ag ent.
“Interest Election Request ” means a request by the Authority to convert or continue a Purchase in accordance with Section 2.0 7 (Interest Elections), which shall be substantially in the form of Exhibit B ( Form of Interest Election Request ), or any other form approved by the Administrative Agent.
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“Interest Payment Date” means (a) with respect to any ABR Purchase , the last day of eac h March, June, September and December and the applicable Maturity Date, (b) with respect to any RFR Purchase, (1) each date that is on the numerically corresponding day in each calendar month that is one month after the Purchase of s uch RFR Purchase (or, if there is no such numerically corresponding day in such month, then the last day of such month) and (2) the applicable Maturity Date, and (c) with respect to any Term Benchmark Purchase, the last day of each Interest Period applicable to the Purchase of which such Term Benchmark Purchase is a part and, in the case of a Term Benchmark Purchase with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period, and the applicable Maturity Date.
“Interest Period ” means with respect to any Term Benchmark Purchase , the period commencing on the date of such Purchase and ending on the numerically corresponding day in the calendar month that is one, three or six months thereafter (in each case, subject to the availability for the Benchmark applicable to the relevant Purchas e), as the Authority (or the Manager as its Authorized Designee pursuant to the Authority Direction Letter) m ay elect; provided, that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (ii) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period, and (iii) no tenor that has been removed from this definition pursuant to Section 2.09(e) (Alternate Rate of Interest) shall be available for specification in such Request for Purchas e or Interest Election Reques t. For purposes hereof, the date of a Purchase initially shall be the date on which such Purchase is made and thereafter shall be the effective date of the most recent conversion or continuation of suc h Purchase. “Investor Letter” has the meaning set forth in Section 12.13(b)(ii) ( Assignments). “Joinder Agreement ” means a Joinder Agreement in substantially the form o f Exhibit F (Form of Joinder Agreement ) attached hereto.
“Lease Agreement” means the Lease Agreement, dated as o f July 1, 2024, by and between the Authority, as lessor, and the City, as lesse e.
“Lease Revenues” means all Rental Payments (as defined in the Lease Agreement) payable by the City pursuant to the Lease Agreement, including any prepayments of Base Rental Payments, any Insurance and Condemnation Proceeds, any proceeds of title insurance policies, and any amounts received by the Authority and/or the Trustee (as its assignee) as a result of or in connection with the Authority’s or the Trustee’s pursuit of rem edies under the Lease Agreement upon a Lease Default Event.
“Lien” means, with respect to any Person, any mortgage, lien, pledge, charge, security interest or other encumbrance, or any interest or title of any vendor, lessor, lender or other secured party to or of such Person under any conditional sale or other title retention agreement or capital lease, upon or with respect to any property or asset of such Person (including in the case of stock, stockholder agreements, voting trust agreements and all similar arrangements).
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“Management Agreement ” means th e Amended and Restated Facility Management Agreement, dated as of July 1, 2022, between the City and the Manager , as amended b y the First Amendment to Amended and Restated Facility Management Agreement, dated as o f July 1, 2024, between the City and the Manager .
“Manager” means Anaheim Arena Management, LLC, a California limited liability company, and any permitted successor or assign thereof .
“Manager Delegation of Duties A greement” means the Delegation of Duties L etter Agreement, dated J uly 25, 2024, by and between the Manager and the Developer, as acknowledged and agreed to by the City.
“Manager Documents ” means, collectively, the Covenant Agreement , the Accounts Agreement, the Accounts Control Agreement, the Construction Draw Agreement, the Authority Direction Letter, the Security Agreement, the Consents to Collateral Assignment, the Management Agreement, the District Sign Agreement, the NHL Team Agreement , the Development Documents, the Site Leases, the Recognition, Non- Disturbance and Attornment Agreement , the Recognition and Acknowledgment Agreement, the Fee Letter, and all certificates and other documents related thereto or executed in connection therewith.
“Margin Stock ” means margin stock within the meaning of Regulations T, U and X, as applicable.
“Master Indenture” has the meaning set forth in the recitals hereof. “Material Adverse Effect ” means a material adverse effect on : (a) the ability of the Authority to perform its obligations under any Authority D ocument; ( b) the ability of the City to perform its obligations under any City D ocument; (c) the ability of the Manager o r TeamCo to perform its obligations under any Transaction D ocument to which it is a party; (d) the business, assets, operations, prospects or condition, financial or otherwise, of the Manager; (e ) the legality, validity, binding effect or enforceability against the A uthority or the City of any Authority Document or any City Document, respectively; or (f) the rights, interests, security or remedies of the Trustee, the Administrative Agent, any Purchaser or any other Series 2024A Bondholder under this Agreement or any other Financing Document.
“Maturity Date ” means the Initial Series 2024A Maturity Date and/or the Incremental Series 2024A Maturity Date.
“Maximum Rate ” has the meaning set forth in Section 3.03 (Interest Rate Limitation ). “Monthly Draw Schedule ” means (a) with respect to the Initial Series 2024A Bonds, the indicative monthly draw schedule for Project Costs relating to t he Parking/Signage portion of the Project with respect to the Purchases to be made by the Purchasers at the Initial Closing Date and at each subsequent Date of Purchase of Initial Series 2024A Bonds attached as Exhibit C (Monthly Draw Schedule) to the Covenant Agreement; and (b) with respect to the Incremental Series 2024A Bonds, the indicative monthly draw schedule for Project Costs relating to the Arena Renovations portion of the Project with respect to the Purchases to be made by the Purchasers at the Incremental Closin g Date and at each subsequent Date of Purchase of Incremental Series 2024A Bonds delivered to the Administrative Agent on or prior t o the Incremental Closing Date.
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“Moody’s” means Moody’s Investors Service, Inc.
“1933 Act” means the Securities Act of 1933, as amended . “NHL Team Agreement” means the amended and restated letter agreement, dated August 1, 2022, between the Manager and TeamCo, as amended by a First Amendment to AAM -ADHC Letter Agreement, dated as of September 1, 2022, between the Manager and TeamCo . “Non-Relocation Agreement ” means the Non -Relocation Agreement, dated as o f July 25, 2024, by and between T eamCo and the Trustee.
“NYFRB” means the Federal Reserve Bank of New York.
“NYFRB’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or any successor source.
“NYFRB Rate ” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent f rom a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Obligations” means, collectively, al l obligations of every nature of the Authority, the City, the Manager, the Developer and/or TeamCo from time to time owed to the Series 2024A Bondholders, the Trustee and/or the Administrative Agent under this Agreement, the Indenture and any other Financing Document , whether now existing or hereafter arising, irrespective of their nature, whether direct or indirect, absolute or contingent, liquidated or unliquidated, including, without limitation, (a) the obligation to pay principal, interest (including interest which, but for the filing of a petition in bankruptcy with respect to the Authority, the City, the Manager, the Developer and/or TeamCo, would have accrued on an y Obligation, whether or not a claim is allowed against the Authority, the City, the Manager, the Developer and/or TeamCo for such interest in the related bankruptcy proceeding), any make-whole amount and break funding costs, if any, with respect to any Seri es 2024A Bonds, fees, indemnification and reimbursement payments, costs and expenses (including all reasonable out -of- pocket fees and expenses of counsel to the Series 2024A Bondholders, the Trustee and/or the Administrative Agent incurred pursuant to this Agreement, the Indenture and any other Financing Document), and (b) the obligation to reimburse any amount in respect of any of the foregoing that the Administrative Agent (on behalf of the Purchasers) or any Purchaser, in each case in its sole discretion, may elect to pay or advance on behalf of the Authority or the City) . “Operating Year” means, the period from July 1 of each calendar year to June 30 of the following calendar year, except that the final Operating Year shall terminate on the last day of the term of the Management Agreement .
“Optional Prepayment Date ” means the Initial Optional Prepayment Date and/or the Incremental Optional Prepayment Date.
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“Other Connection Taxes ” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Financing Document, or sold or assigned an interest in any Series 2024A Bond or Financing Document). “Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under , or otherwise with respect to, this Agreement or any other Financing Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Secti on 2.11 (Mitigation Obligations; Replacement of Purchasers )). “Outstanding” has the meaning set forth in the Indenture. “Overnight Bank Funding Rate ” means, for any day, the rate comprised of both overnight federal funds and overnight eurodollar transactions denominated in Dollars by U.S. -managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.
“Owner” means, with respect to a Bond, the Person in whose name such Bond is registered on the Registration Books in accordance with the Indenture. “Parties” means, collectively, the Authority, the City , the Purchasers and the Administrative Agent, and “ Party” means any of them .
“Patriot Act ” means United States Public Law 107 -56, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as amended from time to time, and the rules and regulations promulgated ther eunder from time to time in effect.
“Purchase and Payment Grid” means the Purchase and Payment Grid maintained by the Trustee as part of its Registration Books and attached as Exhibit C (Purchase and Payment Grid) to the First Supplemental Indenture .
“Permitted Investments” has the meaning set forth in the Indenture . “Permitted Liens ” means (a) Liens created in favor of the Trustee ( for the benefit of the Owners of the Bonds, including the Series 2024A Bondholders) pursuant to the Collateral Documents, and (b) Permitted Encumbrances ( as such term is defined in the Lease Agreement). “Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity. “Plans and Specifications ” means (a) with respect to the Parking/Signage portion of the Project, the drawings, plans and specifications for the Parking/Signage delivered to the Trustee, the Administrative Agent and the Construction Monitor on or prior to the Initial Closing Date ; and (b) with
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respect to the Arena Renovations portion of the Project, the drawings, plans and specifications for the Arena Renovations delivered to the Administrative Agent and the Construction Monitor on or prior to the Incremental Closing Date .
“Pledged Accounts ” has the meaning set forth in the Accounts Agreement. “Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Stat istical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.
“Principal Payment Date ” means an Initial Principal Payment Date and/or an Incremental Principal Payment Date.
“Pro-Forma Debt Service Coverage Ratio ” has the meaning set forth in the Accounts Agreement.
“Project” means (a) with respect to the Initial Series 2024A Bonds, the acquisition, design, construction and/or installation of the improvements, facilities and equipment of certain parking decks and associated sponsorship assets surrounding the Arena, specifically the following: (i) Parking Deck B to consist of a six-story parking structure with approximately 2,970 parking spaces (“ Parking Deck B”), (ii) Parking Deck C to consist of a six-story parking structure with approximately 1,568 parking spaces (“ Parking Deck C ”), (iii) Parking Deck D to consist of a five -story parking structure with approximately 1,190 parking spaces (“ Parking Deck D ”), (iv) two large format sponsorship displays to be installed on Parking Deck B identified as the Deck B Spectacular and on Parking Deck C identified as the Deck C Spectacular (collectively, the “Spectaculars ”), (v) a variety of static signage to promote business and other activities throughout the mixed- use development commonly known as “ocV!BE” on which the Parking/Signage is located, and (vi) LED screens to display sponsorship advertisements throughout the mixed- use development commonly known as “ ocV!BE” on which the Parking/Signage is locate d (collectively, the “Parking/Sig nage”); and (b) with respect to the Incremental Series 2024A Bonds, the planned renovations to the Arena (the “Arena Renovations ”). “Project Costs ” means, collectively, without duplication, (a) with respect to the Parking/Signage portion of the Project, all hard and soft costs of acquiring, developing, designing, engineering, renovating, constructing, equipping and completing the Parking/Signage, whether incurred or paid prior to or after the Initial Closing Date, together with all contingencies, fees, costs and expenses relating thereto and all pre -development costs related to such Parking/Signage undertaken by the Developer; and (b) s ubject to the issuance of the Incremental Series 2024A Bonds, with respect to the Arena Renovations portion of the Project, all hard and soft costs of acquiring, developing, designing, engineering, renovating, constructing, equipping and completing the Are na Renovations, whether incurred or paid prior to or after the Incremental Closing Date, together with all contingencies, fees, costs and expenses relating thereto and all pre -development costs related to such Arena Renovations undertaken by the Developer, in each case of clauses (a) and (b), including: (i) site preparation costs, including all surveys, title insurance, testing, environmental abatement, demolition and remediation costs; (ii) all amounts payable under all design, development, and constructio n
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agreements (including each applicable Development Document) and all project and pre -development agreements; (iii) all permits, entitlements and approval costs, licensing fees, and costs of insurance; (iv) furniture, fixtures and equipment expenses and cost s of materials; (v) development and pre - development costs, fees and related salary expenses; (vi) construction management expenses; (vii) contingencies and working capital costs; (viii) payments under any agreements relating to construction (including the costs of the Construction Monitor); (ix) start -up and opening costs; (x) financing, consulting and legal costs and other professional costs and fees; (xi) taxes, insurance and any other fees, costs, expenses and funding requirements associated with the applicable Project or the incurrence of the Indebtedness under the Financing Documents; and (xii) all other costs described in the applicable Construction Budget.
“Property” has the meaning set forth in the Lease Agreement . “Prospective Test Period ” has the meaning set forth in the Accounts Agreement. “Purchase” means, collectively, the Initial Purchase and each subsequent purchase of Series 2024A Bonds made by the Purchasers pursuant to Section 2.01(b) ( Purchases) and in accordance with the Monthly Draw Schedul e.
“Purchaser” and “Purchasers” means , individually or collectively, as applicable, each Person listed on Schedule I ( Commitment Amounts and Percentages ) on the Initial Closing Date and on an amended Schedule I on the Incremental Closing Date (if applicable) and any other Person that shall have become a party hereto pursuant to a Joinder Agreement, an Assignment and Assumption or otherwise, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption or otherwise .
“Purchaser Parent ” means, with respect to any Purchaser, any Person as to which such Purchaser is, directly or indirectly, a subsidiary.
“Purchaser-Related Person ” has the meaning set forth in Section 10.04(a) (Limitation of Liability).
“Rating Agency” means any of DBRS, S&P, Moody’s and/or Fitch, as context may require . “Recipient” means any Credit Party, as applicable.
“Recognition and Acknowledgment Agreement ” means the Recognition and Acknowledgment Agreement , dated as o f July 25, 2024, from the City, as acknowledged and agreed to by the Trustee and the Manager, relating to the Management Agreement . “Recognition, Non-Disturbance and Attornment Agreement ” means the Recognition, Non- Disturbance and Attornment Agreement, dated as of July 1, 2024, by and among (i) Randall Douglass (an individual, successor -in-interest to Leo Theodore R. Douglass, Trustee of The Douglass Family Partnership No. 1 (as Master Landlord), (ii) Douglass Avenue Partners, LLC (as Sub- Master Landlord), (iii) the City, and (iv) the Authority (the City and the Authority collectively as Subtenants) . “Reduction Fee” means an amount equal to the product of (a) the applicable Commitment Fee Rate in effect on the date of the permanent reduction of the Commitment pursuant to Section 2.06 (Permanent Reduction and Termination of Commitment ); (b) the difference between (i) the Commitment (without regard to temporary reductions thereto subject to reinstatement upon repayment
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of Series 2024A Bonds) prior to such reduction and (ii) the Commitment (without regard to temporary reductions thereto subject to reinstatement upon repayment of Series 2024A Bonds) after the reduction; and (c) a fraction, the numerator of which is equal t o the number of days from and including the date of such reduction to and including the applicable Commitment Expiration Date, and the denominator of which is 360.
“Reference Time” with respect to any setting of the then- current Benchmark means ( a) if such Benchmark is the Term SOFR Rate, 5:00 a.m. (Chicago time) on the day that is two U.S. Government Securities Business Days preceding the date of such setting, ( b) if the RFR for such Benchmark is Daily Simple SOFR, then four U.S. Government Securities Business Days prior to such setting, or (c ) if such Benchmark is none of the Term SOFR Rate or Daily Simple SOFR, the time determined by the Administrative Agent in its reasonable discretion.
“Register” has the meaning set forth in Section 12. 13(b) (Assignments). “Registration Books ” means the records maintained by the Trustee for the registration of ownership and registration of transfer of the Bonds pursuant to Section 2.03 ( Registration Books ) of the Master Indenture.
“Regulation D ” means Regulation D of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof. “Regulation T ” means Regulation T of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof. “Regulation U ” means Regulation U of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof. “Regulation X ” means Regulation X of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof. “Related Part y” and “Related Parties ” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates .
“Relevant Governmental Body” means , the Federal Reserve Board and/or the NYFRB, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto .
“Relevant Rate ” means ( a) with respect to any Term Benchmark Purchase, the applicable Adjusted Term SOFR Rate or ( b) with respect to any RFR Purchase , the applicable Adjusted Daily Simple SOFR, as applicable.
“Request for Purchase” mean s any request for the purchase of Series 2024A Bonds made by the Authority (or the Manager as its Authorized Designee pursuant to the Authority Direction Letter) to the Administrative Agen t in accordance with Section 2.01(b) ( Purchases), in the form of Exhibit A (Form of Request for Purchase ) hereto with such insertions and deletions as are satisfactory to the Administrative Agent in its reasonable discretion, executed and delivered on behalf of the Authority by the manual or facsimile signatures of any Authorized Officer of the Authority (or the Manager as its Authorized Designee pursuant to the Authority Direction Letter ).
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“Required Purchasers ” means, subject to Section 2.12 ( Defaulting Purchasers ), (a) at any time prior to the earlier of the Series 2024A Bonds becoming due and payable pursuant to Section 9.01 (Events of Default ) or the Commitments terminating or expiring, (i) if there are less than three Purchasers, all Purchasers and (ii) otherwise, Purchasers having unfunded Commitments plus principal amount of Series 2024A Bonds Outstanding representing at least 75% of the sum of all of the unfunded Commitments plus the aggregate principal amount of Series 2024A Bonds Outstanding at such time; and (b) for all purposes after the Series 2024A Bonds become due and payable pursuant to Section
9.01 (Events of Default), all Commitments have been funded or the Commitments expire or terminate, (i) if there are less than three Purchasers, all Purchasers and ( ii) otherwise, Purchasers holding Series 2024A Bonds in the aggregate principal amount representing at least 75% of the aggregate Outstanding principal amount of the Series 2024A Bonds at such time; provided that, in the case of clauses (a) and (b) above, for the purpose of determining the Required Purchasers needed for any waiver, amendment, modification or consent of or under this Agreement or any other Financing Document, any Purchaser that is the Authority, the City or the Manager or an Affiliate of the Authority, the City or the Manager shall be disregarded.
“Resolution Authority ” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“RFR Purchase” means a Purchase that bears interest at a rate based on the applicable Adjusted Daily Simple SOFR .
“S&P” means Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services LLC business.
“Sanctioned Country ” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions ( at the time of this Agreement, the so -called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region of Ukraine, Cuba, Iran, North Korea, Russia and Syria ).
“Sanctioned Person ” means, at any time, any Person subject or target of any Sanctions, including (a) any Person listed in any Sanctions -related list of designated Persons maintained by the U.S. government, including by Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, U.S. Department of Commerce, or by the United Nations Security Council, the European Union, any European Union member state, His Majesty’s Treasury of the United Kingdom or other relevant sanctions authority, (b) any Person operating, organized or resident in a Sanctioned Country, (c) any P erson owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b) (including, without limitation for purposes of defining a Sanctioned Person, as ownership and control may be defined and/or established in and/or by any applicable laws, rules, regulations, or orders).
“Sanctions” means all economic or financial sanctions, trade embargoes or similar restrictions imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state, His Majesty’s Treasury of the United Kingdom or other relevant sanctions authority.
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“Scheduled Completion Date ” means (a) with respect to the Parking/Signage portion of the Project, the scheduled date for Final Completion of the Parking/Signage, which shall be no later than (i) December 31, 2025 for Parking Deck B, Parking Deck C and the Spectaculars, and (ii) August 31, 2026 for Parking Deck D ; and (b) with respect to the Arena Renovations portion of the Project, the scheduled date for Final Completion of the Arena Renovations a greed to in writing by the Administrative Agent, the Manager and the Developer and provided to the Trustee . “Security Agreement” means the Pledge and Security Agreement, dated as o f July 25, 2024, by and among the Manager, the Developer, and the Trustee . “Series 2024A Bondholder” and “ Series 2024A Bondholders” means, individually or collectively, as applicable, each Purchaser that is a holder of Series 2024A Bonds that is or has become a party hereto pursuant to Section 12.13 (Successors and Assigns ). “Series 2024A Bonds ” has the meaning set forth in the recitals hereof and includes, collectively, the Initial Series 2024A Bonds and any Incremental Series 2024A Bonds . “Series 2024A Construction Subaccount ” has the meaning set forth in the First Supplemental Indenture.
“Series 2024A Debt Service Reserve Account ” has the meaning set forth in the Master Indenture.
“Series 2024A Debt Service Reserve Requirement ” has the meaning set forth in the First Supplemental Indenture.
“Series 2024A Work Stoppage Reserve Account” has the meaning set forth in the Accounts Agreement.
“Series 2024A Work Stoppage Reserve Requirement” has the meaning set forth in the Accounts Agreement.
“Site Leases” means, collectively, (a) the Site Lease (Deck B), dated as o f July 1, 2024, by and between Deck B Land, LLC, as landlord, and the City, as tenant; and (b) the Sub-Site Lease (Deck C), dated as o f July 1, 2024, by and between Douglass Avenue Partners, LLC , as landlord, and the City, as tenant.
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator .
“SOFR Administrator ” means the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website ” means the NYFRB’s website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time .
“SOFR Determination Date ” has the meaning specified in the definition of “Daily Simple SOFR”.
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“SOFR Rate Day” has the meaning specified in the definition of “Daily Simple SOFR”. “Solvent” means, with respect a Person, that as of the date of determination, (a) the sum of such Person’s debt (including contingent liabilities) does not exceed the present fair saleable value of such Person’s present assets (including the present fair saleable value of the collateral securing the loans of such Person); (b) such Person’s capital is not unreasonably small in relation to its business as contemplated on the applicable C losing Date or with respect to any transaction contemplated to be undertaken after the applicable Closing Date; and (c) such Person has not incurred and does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise) . “Surety Documents ” means (a) with respect to the Parking/Signage portion of the Project , collectively, (i) the Performance Bond, dated March 4, 2024, issued by Bomel Construction Company, Inc., as contractor, and Travelers Casualty and Surety Company of America, as surety, in favor of the Developer, as owner, relating to the Bomel (Parking Deck B) Construction Agreement, (ii) the Payment Bond, dated March 4, 2024, issued by Bomel Construction Company, Inc., as contractor, and Travelers Casualty and Surety C ompany of America, as surety, in favor of the Developer, as owner, relating to th e Bomel (Parking Deck B) Construction Agreement, (iii) the Performance Bond, dated March 4, 2024, issued by Bomel Construction Company, Inc., as contractor, and Travelers Casualty and Surety Company of America, as surety, in favor of the Developer, as owner, relating to the Bomel (Parking Deck C) Construction Agreement, (iv) the Payment Bond, dated March 4, 2024, issued by Bomel Construction Company, Inc., as contractor, and Tr avelers Casualty and Surety Company of America, as surety, in favor of the Developer, as owner, relating to the Bomel (Parking Deck C) Construction Agreement, (v) the Performance Bond, dated June 28, 2024, issued by Swinerton Builders, as contractor, and Zurich American Insurance Company, as surety, in favor of the Developer, as owner, relating to the Swinerton (Parking Deck D) Construction Agreement , and (vi) the Payment Bond, dated June 28, 2024, issued by Swinerton Builders, as contractor, and Zurich American Insurance Company, as surety, in favor of the Developer, as owner, relating to th e Swinerton (Parking Deck D) Construction Agreement; and (b) with respect to the Arena Renovations portion of the Project , any and all payment and performance bonds, guarantees or other surety or credit support in respect of the applicable Architects’ and/or Contractors’ obligations under the applicable Development Documents.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), value added taxes, or any other goods and services, use or sales taxes, assessments, fees or other charges now or hereafter imposed, coll ected, withheld or assessed by any Governmental Authority, including any interest, fines, additions to tax or penalties or similar liability applicable thereto .
“TeamCo” means Anaheim Ducks Hockey Club, LLC .
“Term Benchmark” when used in reference to any Purchase, refers to whether such Purchase bears interest at a rate determined by reference to the applicable Adjusted Term SOFR Rate . “Term Benchmark Purchase” means a Purchase t hat bears interest at a rate based on the applicable Adjusted Term SOFR Rate.
“Term SOFR Determination Day ” has the meaning assigned to it under the definition of “Term SOFR Reference Rate” .
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“Term SOFR Rate” means, with respect to any Term Benchmark Purchase and for any tenor comparable to the applicable Interest Period, the Term SOFR Reference Rate at approximately 5:00 a.m., Chicago time, two (2) U.S. Government Securities Business Days prior to the commencement of such tenor comparable to the applicable Interest Period, as such rate is published by the CME Term SOFR Administrator .
“Term SOFR Reference Rate” means, for any day and time (such day, the “ Term SOFR Determination Day ”), with respect to any Term Benchmark Purchase denominated in Dollars and for any tenor comparable to the applicable Interest Period, the rate per annum published by the CME Term SOFR Administrator and identified by the Administrative Agent as the forward- looking term rate based on SOFR. If by 5:00 pm (New York City time) on such Term SOFR Determination Day, the “Term SOFR Reference Rate” for the applicable tenor has not been published by the CME Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Rate has not occurred, then, so long as such day is otherwise a U.S. Government Securities Business Day, the Term SOFR Reference Rate for such Term SOFR Determination Day will be the Term SOFR Reference Rate as published in respect of the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate was published by the CME Term SOFR Administrator, so long as such first preceding U.S. Government Securities Business Day is not more than five (5) U.S.
Government Securities Business Days prior to such Term SOFR Determination Day. “Termination Fee ” means an amount equal to the product of ( a) the applicable Commitment Fee Rate in effect on the date of termination of the Commitment, ( b) the Commitment (without regard to temporary reductions thereto subject to reinstatement upon repayment of Series 2024A Bonds) as of the date of such termination, and (c) a fraction, the numerator of which is equal to the number of days from and including the date of termination to and including the applicable Commitment Expiration Date, and the denominator of which is 360.
“Transaction Documents” means, individually or collectively, as the context may require, the Financing Documents and the Development D ocuments.
“Trustee” means U.S. Bank Trust Company, National Association, a national banking association duly organized and existing under and by virtue of the laws of the United States, or any successor thereto as Trustee under the Indenture, appointed as provided therein. “Type”, when used in reference to any Series 2024A Bond or Purchase, refers to whether the rate of interest on such Series 2024A Bond, or on the Series 2024A Bonds comprising such Purchase, is determined by reference to the applicable Adjusted Term SOFR Rate , the applicable Adjusted Daily Simple SOFR, or the applicable Adjusted ABR Rate .
“UK Financial Institutions ” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time ) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority ” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
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“Unadjusted Benchmark Replacement ” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment. “Undrawn Financing Costs Sublimit ” has the meaning set forth in Section 5.07 ( Use of Proceeds of Series 2024A Bonds).
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as in effect from time to time in the State of California; provided, that if, by reason of mandatory provisions of law, the validity, perfection, priority and/or enforcement of any security interest granted or intended to be granted under any Financing Document is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of California , then, as to the validity, perfection, priority and/or enforcement (as applicable) of such security interest, “Uniform Commercial Code” and “UCC ” means the Uniform Commercial Code in effect in such other juri sdiction. “United States ” means the United States of America.
“U.S. Government Securities Business Day ” means any day except for (i) a Saturday, (ii) a Sunday, or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securitie s.
“U.S. Tax Compliance Certificate” has the meaning set forth in Section 3.05(f)(ii)(2)(C) (Status of Purchasers).
“Write-Down and Conversion Powers ” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail -In Legislation for the applicable EEA Member Country, which write -down and conversion powers are described in the EU Bail- In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail -In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
Section 1.02. Computation of Time Periods. In this Agreement, in the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”. All references to time of day herein are references to New York, New York time, unless otherwise specifically provided.
Section 1.03. Construction.
(a) Unless the context of this Agreement otherwise clearly requires, references to the plural include the singular, to the singular include the plural and to the part include the whole . The word “including” shall be deemed to mean “including but not limited to” and “or” has the inclusive meaning represented by the phrase “and/or ”. T he words “hereof” , “herein”, “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement.
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(b) The Section headings contained in this Agreement and the table of contents preceding this Agreement are for reference purposes only and shall not control or affect the construction of this Agreement or the interpretation thereof in any respect. Section, subsection and exhibit references are to this Agreement unless otherwise specified.
(c) Unless the context requires otherwise, any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument , or other document as from time to time amended, supplemented, restated or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein) and, for purposes of the Series 2024A Bonds, shall also include any such bonds issued in substitution therefor pursuant to the terms of the Indenture.
(d) A reference to a Person includes its successors and permitted assigns to the extent permitted and in accordance with the terms of the Financing Documents. (e) A reference to an Applicable Law includes any amendment or modification to such Applicable Law, and all regulations, rulings and other Applicable Law promulgated under such Applicable Law.
(f) Each covenant contained herein shall be construed (absent express provision to the contrary) as being independent of each other covenant contained herein, so that compliance with any one covenant shall not (absent such an express contrary provision) be dee med to excuse compliance with any other covenant. Where any provision herein refers to action to be taken by any Person, or which such Person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such Person.
Section 1.04. Accounting Terms and Determinations . Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared, in accordance with GAAP . If, after the date of this Agreement , there shall occur any change in GAAP from those used in the preparation of any financial statements referred to in this Agreement and such change shall result in a change in the method of calculation of any financial covenant, standard or term found in this Agreement including, without limitation, a recharacterization of operating leases to the effect that certain operating leases are to be treated as capital leases, any of the Parties m ay by notice to the other Parties, require that the Parties n egotiate in good faith to amend such covenants, standards, and terms so as equitably to reflect such change in accounting principles, with the desired result being that the criteria for evaluating the financial condition of the Authority, the City, or the Manager, as applicable, shall be the same as if such change had not been made. No delay by any Party i n requiring such negotiation shall limit their right to so require such a negotiation at any time after such a change in accounting principles . Until any such covenant, standard, or term is amended in accordance with this Section 1.04, financial covenants shall be computed and determined in ac cordance with GAAP in effect prior to such change in accounting principles.
Section 1.05. Relation to Other Documents; Acknowledgment of Different Provisions of Financing Documents; Incorporation by Reference . (a) Nothing in this Agreement shall be deemed to amend, or relieve the Authority or the City of its obligations under, any Financing Document to whic h it is a party.
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(b) Except as provided in Section 1.05(c) below , all references to other documents shall be deemed to include all amendments, modifications , and supplements thereto to the extent such amendment, modification , or supplement is made in accordance with the provisions of such document , this Agreement and the Indenture.
(c) All provisions of this Agreement making reference to specific Sections of any Financing Document shall be deemed to incorporate such Sections into this Agreement by reference as though specifically set forth herein (with such changes and modifications as may be herein provided) and shall continue in full force and effect with respect to this Agreement notwithstanding payment of all amounts due under or secured by the Financing Documents, the termination or defeasance thereof or any amendment thereto or any waiver given in connection therewith, so long as this Agreement is in effect and until all Obligations are paid in full. No amendment, modification, consent, waiver or termination with respect to any of such Sections shall be effective as to this Agreement until specifically agreed to in writing by the P arties with specific reference to this Agreement.
ARTICLE II
PURCHASE OF SERIES 2024A BONDS
Section 2.01. Commitment and Purchase of Initial Series 2024A Bonds. (a) Closing. On the Initial Closing Date, the Authority shall satisfy the conditions set forth in Article IV ( Conditions Precedent ). Upon satisfaction of such conditions, the Initial Available Commitment will become effective and, subject to the terms and conditions hereof, each Purchaser severally agrees, during the Initial Availability Period , to make the Initial Purchase and additional purchases of the Initial Series 2024A Bonds in an aggregate principal amount not exceeding such Purchaser’s Commitment; provided, that, the aggregate principal amount of all Purchases made by the Purchasers with respect to the Initial Series 2024A Bonds shall not exceed the applicable Commitment.
One or more fully registered certificated Series 2024A Bonds, in the aggregate principal amount equal to each Purchaser’s respective Commitment with respect to such Initial Series 2024A Bonds, shall be issued to and registered in the name of the related Purchaser (or as otherwise directed by such Purchaser) in accordance with the terms of the Indenture. (b) Purchases.
(i) On any Business Day prior to the applicable Commitment Expiration Date, and upon the satisfaction of the terms and conditions set forth in this Section 2.01 and in Article IV (Conditions Precedent), the Purchasers severally agree to extend credit to the Authority ratably in accordance with their respective Commitments through the purchase from the Authority, and the Authority agrees to sell to the Purchasers from time to time pursuant to each Purchase, the applicable S eries 2024A Bonds, at a price of par, in an aggregate principal amount not to exceed the amount of such Purchasers’ respective applicable Commitment in accordance with Section 2.01( c) (Requests for Purchase ); provided, that the purchas e price of any Purchase shall not exceed the applicable Commitment in effect on the applicable Date of Purchase and in no event shall the aggregate principal amount of all outstanding Series 2024A Bonds exceed the applicable Commitment as reduced, if applicable, pursuant to Section 2.06 ( Permanent Reduction and Termination of Commitment ) or Section 9.02(b) ( Consequences of an Event of Default). The Purchasers’ obligation to make Purchases and the applicable Commitment shall terminate on the applicable Commitment Expiration Date .
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(ii) Pursuant to the terms of the First Supplemental Indenture, on each Date of Purchase of Series 2024A Bonds by each Purchaser, the Trustee will cause a notation to be made on the Purchase and Payment Grid to reflect the principal amount so purchased, the type of the interest rate of such Purchase, the Interest Period of such Purchase (if applicable), the then outstanding principal amount of the Series 2024A Bonds and the Initial Available Commitment or Incr emental Available Amount (if any) related to each Series 2024A Bonds Outstanding.
(c) Requests for Purchase.
(i) In connection with each Purchase hereunder, an Authorized Officer of t he Authority (or the Manager as its Authorized Designee pursuant to the Authority Direction Letter) shall give written notice to the Administrative Agent (with a copy to the Authority, the City and the Trustee ) in the form of a Request for Purchase (A)(1) in the case of a Term Benchmark Purchase, not later than 11:00 a.m., New York City time, thre e U.S. Government Securities Business Days before the date of the proposed Purchase or (2) in the case of an RFR Purchase, not later than 11:00 a.m., New York City time, fiv e U.S. Government Securities Business Days before the date of the proposed Purchase, or (B) in the case of an ABR Purchase, not later than 11:00 a.m., New York City time, on e Business Day before the date of the proposed Purchase. Without the consent of the Administrative Agent, neither the Authority nor the Manager (a s its Authorized Designee pursuant to the Authority Direction Letter) shall submit more than one (1) Request for Purchase during the same calendar month. (ii) Each Request for Purchase shall be irrevocable and shall be signed by an Authorized Officer of the Authority (or the Manager as its Authorized Designee pursuant to the Authority Direction Letter ). Each Request for Purchase shall be delivered to the Administrative Agent via facsimile or email at the facsimile number(s) or email address(es) set forth in Section 11.05 ( Notices) and shall specify the following information:
(A) the aggregate amount of the requested Purchase (which amount shall correspond to such month’s Project Costs set forth on the Monthly Draw Schedule);
(B) the requested Date of Purchase, which shall be a Business Day; (C) whether such Purchase is to be an ABR Purchase, a Term Benchmark Purchase or an RFR Purchase;
(D) in the case of a Term Benchmark Purchase, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”; and
(E) the use of funds and the location and number of the account[s] to which funds are to be disbursed.
If no election as to the Type of Purchase is specified, then the requested Purchase shall be an ABR Purchas e. If no Interest Period is specified with respect to any requested Term Benchmark Purchase, then the Authority and the Manager (as its Authorized Designee pursuant to the Authority Direction Letter) shall be deemed to have selected
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an Interest Period of one month’s duration. Promptly following receipt of a Request for Purchase in accordance with this Section 2.01(d), the Administrative Agent shall advise each Purchaser of the details thereof and of the amount of such Purchaser ’s advance to be made as part of the requested Purchase .
(iii) Notwithstanding any other provision of this Agreement , neither the Authority nor the Manager (a s its Authorized Designee pursuant to the Authority Direction Letter) shall be entitled to request , or to elect to convert or continue, any Purchase if the Interest Period requested with respect thereto would end after the applicable Maturity Date. (iv) The Authority and the City each acknowledges that no P urchaser shall be obligated to purchase Series 2024A Bonds except in accordance with the provisions of this Agreement and the Indenture. The Parties agree that each Purchase shall be made in the manner and upon the terms and conditions set forth in this Agreement and the Indenture. (v) The Authority and the City shall only use the proceeds of the Series 2024A Bonds in accordance with the terms o f this Agreement and the First Supplemental Indenture and shall not use the proceeds of any Series 2024A Bonds for any payment which is not permitted b y this Agreement or the First Supplemental Indenture . (d) Minimum Amounts . Subject to the terms and conditions of this Agreement and the First Supplemental Indenture, each Purchase shall be in Authorized Denominations, as identified in a Request for Purchase. At the commencement of each Interest Period for any Term Benchmark Purchase, such Purchase shall be in an aggregate amount that is an inte gral multiple o f $10,000 and not less tha n $100,000. At the time that each ABR Purchase and/or RFR Purchase is made, such Purchase shall be in an aggregate amount that is an integral mult iple o f $10,000 and not less tha n $100,000; provided, that an ABR Purchase may be in an aggregate amount that is equal to the entire unused balance of the total applicable Commitment.
Section 2.02. Required Payments and Repayments.
(a) Payment of Interest on Series 2024A Bonds.
(i) The Authority shall pay accrued but unpaid interest on each Series 2024A Bond on each Interest Payment Date.
(ii) Interest due and payable on a Series 2024A Bond shall be equal to the amount accrued to and including the related Interest Payment Date. (b) Required Principal Payment of Series 2024A Bonds. The Authority shall repay 1.00% of the principal amount (or as nearly as practicable to such amount which results in repayment in Authorized Denominations ) of the applicable Series 2024A Bonds per annum on each applicable Principal Payment Date , which principal amount shall assume that all applicable Series 2024A Bonds are Outstanding; provided, that upon any partial prepayment of th e Series 2024A Bonds pursuant to Section 2.03 ( Optional P repayment) or Section 2.04 ( Mandatory Prepayment), the principal amount of each required repayment of the Series 2024A Bonds becoming due under this Section 2.02(b) on and after the date of such prepayment shall be reduced in the same proportion as the aggregate unpaid principal amount of the Series 2024A Bonds is reduced as a result of such prepayment.
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(c) Payments Due on Non- Business Days. If the payment date for the principal of or interest on a Series 2024A Bond is a day other than a Business Day, the date for payment thereof shall be extended, without penalty, to the next succeeding Business Day, and such extended period of time shall be included in the computation of interest in accordance with the definition of “Interest Period” ; provided, however, that the payment of interest on a Series 2024A Bond on such extended date shall have the same force and effect as if made on the original payment date. (d) Payment on Maturity Date . All outstanding principal of a Series 2024A Bond shall be due and payable on the related applicable Maturity Date or, if applicable, on the date of prepayment of a Series 2024A Bond.
Section 2.03. Optional Prepayment.
(a) The Authority shall have the option to prepay the applicable Series 2024A Bonds, in whole or in part, from and to the extent of prepaid Base Rental Payments paid pursuant to Section 7.02(a) ( Prepayment) of the Lease Agreement, on and after the applicable Optional Prepayment Date, subject to prior notice in accordance with Section 2.03(b) below . (b) The Authority shall notif y the Administrative Agent and the Trustee by written notice (or telephonic notice promptly confirmed in writing) of any prepayment hereunder (i) in the case of prepayment of ( A) a Term Benchmark Purchase, not later than 11:00 a.m., New York City time, three (3) Business Days before the date of prepayment or ( B) an RFR Purchase, not later than 11:00 a.m., New York City time, five (5) Business Days before the date of prepayment, or (ii) in the case of prepayment of an ABR Purchase, not later than 11:00 a.m., New York City time, one (1) Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Series 2024A Bonds or portion thereof to be prepaid; provided , that each such prepayment shall be in a minimum denomination of $1,000,000 and integral multiples of $1,000 in excess thereof . Promptly following receipt of any such notice, the Administrative Agent shall advise the Series 2024A Bondholders of the contents thereof. If such notice is given, the aggregate principal amount of Series 2024A Bonds specified in such notice shall be due and payable on the date designated in such notice, together with accrued interest to such date on the amount so prepaid and any break funding payments required by Section 3.11 ( Break Funding Payments ), but without premium .
Section 2.04. Mandatory Prepayment. The Series 2024A Bonds shall be subject to prepayment, in whole or in part, on any date, in Authorized Denominations, from and to the extent of Insurance and Condemnation Proceeds received with respect to all or a portion of the Property, deposited by the Trustee in the Redemption Account pursuant to Section 5.03 ( Application of Insurance and Condemnation Proceeds ) of the Indenture. Prepayments shall be accompanied by accrued interest to such date on the amount so prepaid and any break funding payments required by Section 3.11 ( Break Funding Payments), but without premium.
Section 2.05. Increase o f Commitment.
(a) The Authority (or the Manager as its Authorized Designee pursuant to the Authority Direction Letter ) may request, by written notice to the Administrative Agent, to increase the Initial Available Commitment by a maximum aggregate amount of up to the Incremental Available Amount.
The Administrative Agent shall promptly notify the existing Purchasers of such request of the Authority (or the Manager as its Authorized Designee pursuant to the Authority Direction Letter )
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pursuant to this paragraph (a). Each existing Purchaser shall notify the Administrative Agent in writing by the date specified by the Administrative Agent (which date shall be not more than ten (10) Business Days of receipt of the Administrative Agent’s notice) that either (i) such Purchaser declines to accept its Incremental Available Amount or (ii) such Purchaser consents to accept the offered Incremental Available Amount. Any Purchaser not responding on or prior to the date specified by the Administrative Agent shall be deemed to have declined to accept the offered commitments in respect of the Incremental Available Amount. The Administrative Agent shall, after receiving the notifications from all of the existing Purchasers or following the date specified in the notice to such Purchasers, whichever is earlier, notify the Authority, the City , the Manager and the Purchasers of the results thereof and the effective date of any Incremental Available Amount. (b) If all of the existing Purchasers decline to accept the Incremental Available Amount pursuant to paragraph (a) above, the Authority (or the Manager as its Authorized Designee pursuant to the Authority Direction Letter) may designate one or more third party financial institutions , in each case, reasonably acceptable to the Administrative Agent, in its sole discretion , that agree to accept all or a portion of such Incremental Available Amount (each a “Designated Purchaser” and collectively the “Designated Purchasers”).
(c) If the Administrative Agent notifies the Authority , the City , the Manager and the Purchasers that one or more existing Purchasers or Designated Purchasers (as applicable) have agreed to accept all or a portion of the Incremental Available Amount , the effectiveness of such Incremental Available Amount shall be subject to the satisfaction (or waiver in accordance with Section 12.03 (Amendments and Waivers)) of the following conditions precedents:
(i) Joinder Agreement and Administrative Questionnaire . (1) Each Designated Purchaser (if applicable) s hall have become a party to this Agreement and shall have delivered to the Administrative Agent ( for delivery to the Authority, the City and the Trustee ) a completed copy of a duly executed Joinder Agreement satisfactory in form and substance to the Administrative Agent. (2) Each Designated Purchaser (if applicable) shall deliver to the Administrative Agent an Administrative Questionnaire in which such Designated Purchaser designates one or more contacts to whom all syndicate -level information (which may contain material non- public information about the Authority, the City, the Manager, TeamCo and their Related Parties or their respective securities) will be made available and who may receive such information in accordance with such Designated Purchaser’s compliance procedures and applicable laws, including Federal and state securities laws.
(ii) Issuance and Authentication of Incremental Series 2024A Bonds . The Administrative Agent shall have received the following documents in form and substance satisfactory to the Administrative Agent:
(1) The Trustee shall authenticate Series 2024A Bonds and deliver a Series 2024A Bond to each of the Purchasers or Designated Purchasers (as applicable) thereof in an amount equal to each Purchaser’s or Designated Purchasers (as applicable) Incremental Available Amount , upon receipt of a Written Request of the Authority in
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accordance with the terms o f Section 13.01 ( Authorization and Issuance of Series 2024A Bonds) of the First Supplemental Indenture .
(2) The Incremental Series 2024A Bonds shall be dated the Incremental Closing Date and be issued in fully registered form, without coupons in Authorized Denominations and in substantially the form set forth in Exhibit A ( Form of Series 2024A Bond) attached to the First Supplemental Indenture. The Incremental Series 2024A Bonds shall be initially registered in the name of the Purchasers or Designated Purchasers (as applicable) (or as otherwise directed by the Purchasers or Designated Purchasers (as applicable) ) and shall not initially be issued as Book- Entry Bonds. (iii) Opinions of Counsel. The Administrative Agent shall have received opinions, each dated the Incremental Closing Date and addressed to the Administrative Agent and the Purchasers or Designated Purchasers (as applicable) (or on which the Purchasers or Designated Purchasers are otherwise expressly authorized to rely) , from (1) Stradling Yocca Carlson & Rauth LLP, as Bond Counsel, (2) the City Attorney of the City, as counsel for the Authority, (3) the City Attorney of the City, as counsel for the City, (4) Dorsey & Whitney, LLP, as counsel to the Trustee, and (5) K utak Rock LLP, as counsel to the Manager, in each case, in substantially the forms of opinions provided at the Initial Closing Date and covering such other matters as the Administrative Agent may reasonably request and satisfactory in form and substance to the Administrative Agent .
(iv) Officer’s Certificates . The Administrative Agent shall have received the following officer’s certificates, in each case satisfactory in form and substance to the Administrative Agent:
(1) A certificate dated the Incremental Closing D ate, executed by an Authorized Officer of the Authority, certifying that: ( A) all approvals necessary to such Incremental Available Amount have been obtained; (B ) the representations and warranties of the Authority contained in this Agreement and each other Authority Document and each certificate, letter, other writing or instrument delivered by the Authority to such Purchasers or Designated Purchasers (as applicable) pursuant hereto or thereto are true and correct in all material respects ( other than the representations and warranties which are qualified by a Material Adverse Effect or other materiality , in which case such representations and warranties are t rue and correct in all respects ) on and as of the Incremental Closing D ate with the same effect as if made on the Incremental Closing D ate; ( C) no Default or Event of Default relating to or affecting the Authority has occurred and is conti nuing or would result from the issuance and delivery of the Incremental Series 2024A Bonds or any of the Authority Documents ; and (D) there is no action, suit, proceeding, inquiry or investigation pending or, to the best knowledge of such Authorized Officer of the Authority after reasonable investigation, threatened ( x) in any way contesting or affecting the validity of the Series 2024A Bonds or the Authority Documents or the Liens created by the Authority Documents or ( y) in any way contesting the existence or powers of the Authority, nor to the best knowledge of such Authorized Officer of the Authority after reasonable investigation, is there any basis for any such action, suit, proceeding, inquiry or investigation, wherein an unfavorable decision, ruling or finding would make invalid or adversely affect the enforceability or performance by the Authority of the Authority Documents.
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(2) A certificate dated the Incremental Closing D ate, executed by an Authorized Officer of the City, certifying that: ( A) all approvals necessary to such Incremental Available Amount have been obtained; (B ) the representations and warranties of the City contained in this Agreement and each other City Document and each certificate, letter, other writing or instrument delivered by the City to such Purchasers or Designated Purchasers (as applicable) pursuant hereto or thereto are true and correct in all material respects (other than the representations and warranties which are qualified by a Material Adverse Effect or other materiality , in which case such representations and warranties are t rue and correct in all respects ) on and as of the Incremental Closing D ate with the same effect as if made on the Incremental Closing Date; ( C) no Default or Event of Default relating to or affecting the City has occurred and is continuing or would result from the issuance and delivery of the Incremental Series 2024A Bonds or any of the City Documents ; and ( D) there is no action, suit, proceeding, inquiry or investigation pending or, to the best knowledge of such Authorized Officer of the City after reasonable investigation, threatened ( x) to restrain or enjoin the payment of the Base Rental Payments or the execution and delivery of the City Docume nts, ( y) in any way contesting or affecting the validity of the City Documents or the Liens created by the City Documents or ( z) in any way contesting the existence or powers of the City, nor to the best knowledge of such Authorized Officer of the City after reasonable investigation, is there any basis for any such action, suit, proceeding, inquiry or investigation, wherein an unf avorable decision, ruling or finding would make invalid or adversely affect the enforceability or performance by the City of the City Documents.
(3) A certificate dated the Incremental Closing D ate, signed by a duly authorized officer of the Trustee, certifying that , to the Trustee’s knowledge, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served on, or threatened against, the Trustee, affecting the existence of th e Trustee or the titles of its officers to their respective offices, or in any way contesting or affecting the validity or enforceability of the Indenture or any other Financing Document to which it is a party against the Trustee, or contesting the power of the Trustee to perform its obligations under the Indenture or any other Financing Document to which it is a party, wherein an unfavorable decision, ruling or finding would materially adversely affect the validity or enforceability of the Indenture or any other Financing Document to which it is a party against the Trustee .
(4) A certificate dated the Incremental Closing Date, executed by an officer of the Manager, certifying that: (A) the representations and warranties of the Manager contained in each Manager Document and each certificate, letter, other writing or instrument delivered by the Manager to such Purchasers or Designated Purchasers (as applicable) pursuant thereto are true and correct in all material respects (other than the representations and warranties which are qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties are t rue and correct in all respects ) on and as of the Incremental Closing D ate with the same effect as if made on the Incremental Closing D ate; (B) no Default or Event of Defa ult relating to or affecting the Manager or the Developer has occurred and is continuing or would result from the issuance and delivery of the Incremental Series 2024A Bonds or any of the Manager D ocuments; (C) there is no action, suit, proceeding, inquiry or
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investigation, at law or in equity, before or by any court, governmental agency, public board or body, served on, or threatened against, the Manager, affecting the existence of the Manager or the titles of its officers to their respective offices, or in an y way contesting or affecting the validity or enforceability of any Manager Document against the Manager, or contesting the power of the Manager to perform its obligations under any Manager Document, wherein an unfavorable decision, ruling or finding would adversely affect the validity or enforceability of any Manager Document against the Manager; and (D ) since the date of the most recent annual audited financial statements of the Manager , the Manager has not incurred any financial liabilities, direct or contingent, or entered into any transactions and there has not been any adverse change in the condition, financial or physical, of the Manager, in any case that would materially and adversely a ffect the ability of the Manager to meet its obligations under th e Manager Documents.
(v) Performance; No Default . The Authority, the City, the Manager and TeamCo shall have performed and complied with all agreements and conditions contained in this Agreement and the other Financing Documents to which it is a party required to be performed or complied with by it prior to or a t the Incremental Closing D ate. Before and after giving effect to the issue and delivery of the Incremental Series 2024A Bonds, no Default or Event of Default shall have occurred and be continuing or would result from the issuance and delivery of the Incremental Series 2024A Bonds .
(vi) No Litigation. No action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, Governmental Authority, public board or body, shall be pending or threatened (A) against the Authority or the City affecting the existence or powers of the Authority or the City (or any of their officials in their respective capacities as such) or affecting or seeking to prohibit, restrain or enjoin the issuance or delivery of the Incr emental Series 2024A Bonds or contesting or affecting the validity or enforceability of the Incremental Series 2024A Bonds or the Financing Documents or contesting the powers of the Authority or the City or their authority to enter into, adopt or perform t heir obligations under any of the foregoing, wherein an unfavorable decision, ruling or finding would materially adversely affect the validity or enforceability of the Financing Documents; or (B) against the Manager, TeamCo, the Arena or the Project which (1) could materially impair the transactions contemplated by the Transaction Documents or (2) could, individually or in the aggregate, reasonably be expected to have a Material Adverse Ef fect. (vii) Use of Proceeds of Incremental Series 2024A Bonds . The Administrative Agent shall have received evidence satisfactory to it of the Authority’ s, the City’s and the Manager’s intended use of proceeds of the Incremental Series 2024A Bonds a s follows: (1) to deposit into the Series 2024A Construction Subaccount for use by the Manager (on behalf of the City) to pay or reimburse Project Costs for the Arena Renovations portion of the Project in accordance with the terms of the Construction Draw Agreement; and (2) to pay fees and expenses incurred in connection with the issuance and delivery of the Incremental Series 2024A Bonds (including, without limitation, the commitment fees and any fees and expenses incurred in connection with the making or processing of any Purchase) . (viii) Payment of Fees and Expenses. The Administrative Agent shall have received:
(1) all fees and other amounts due and payable on or prior to the Incremental Closing D ate, including, to the extent invoiced, reimbursement or payment of all out -of-pocket expenses
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required to be reimbursed or pai d under the applicable Fee Letter (or evidence that such fees will be paid with the proceeds of the Incremental Series 2024A Bonds issued o n the Incremental Closing Date); and (2) evidence of payment or reimbursement of all other fees and expenses (including the legal fees and expenses of the Administrative Agent’s special counsel) incurred in connection with the transactions contemplated by the Incremental Series 2024A Bonds and due on the Incremental Closing D ate (or evidence that such fees will be paid with the proceeds of the Incremental Series 2024A Bonds issue d on the Incremental Closing D ate). (ix) Monthly Draw Schedule . The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, the applicable M onthly Draw Schedule with respect to the Incremental Available Amount relating to the Arena Renovations portion of the Project .
(x) Construction Budget and Plans and Specifications . The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, the applicable Construction Budget and applicable Plans and Specifications relating to the Arena Renovations portion of the Project.
(xi) Financial Feasibility and Market Study . The Administrative Agent shall have received a satisfactory financial feasibility and market study report from CAA ICON. (xii) Insurance Reports and C ertificates. The Administrative Agent shall have received (1) a copy of each Insurance Report, dated not more than thirty (30) days prior to the Incremental Closing Date, in form and substance satisfactory to the Administrative Agent, together with a reliance letter permitting the Purchasers or Designated Purchasers (as applicable), the Trustee and the Administrative Agent to rely thereon (to the extent such Insurance Report is not directly for the benefit of such parties or does not by its terms provide for reliance th ereon by such parties); and (2) an Insurance Closing Certificate, dated the Incremental Closing Date , from each Insurance Broker addressed to the Purchasers or Designated Purchasers (as applicable) , the Trustee and the Administrative Agent confirming, as applicable, that all insurances required to be maintained by the City, the Manager and/or the Developer pursuant to the terms of Article V ( Insurance) of the Lease Agreement, Section 14 (Insurance to be Maintained by Manager ) of the Management Agreement (including, without limitation, earthquake and flood insurance), and Exhibit R ( Insurance Requirements (OCIP) ) of the applicable Construction Agreements, respectively, (A) are in full force and effect, and (B) all premiums due at that time und er each relevant insurance have been paid, together with endorsements naming the Trustee (for the benefit of the Bondholders) as lender’s loss payable under all property coverage and additional insured under all liability coverages . (xiii) Sufficiency of Base Rental Payments . The Administrative Agent shall have received evidence satisfactory to it that the Base Rental Payments to be paid under the Lease , after giving effect to th e Incremental Available Amount , are sufficient to pay the principal installments of and interest on the Incremental Series 2024A Bonds. (xiv) Funding of Reserves. Each of the Series 2024A Debt Service Reserve Account and the Series 2024A Work Stoppage Reserve Account (if applicable) shall have been fully funded to their required amounts in accordance with the Accounts Agreement and the First Supplemental Indentur e, as applicable.
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(xv) DSCR. The Administrative Agent shall have received a certificate of a senior financial officer of the Manager, together with a detailed internal report demonstrating and concluding that , following the incurrence of the contemplated Incremental Series 2024A Bonds, for each full fiscal year following the incurrence of such Incremental Series 2024A Bonds until the maturity date of the Series 2024A Bonds : (A) the Historical Debt Service Coverage Ratio for the Historical Test Period is at least 2.00:1.00; and ( B) the Pro-Forma Debt Service Coverage Ratio for the Prospective Test Period is at least 2.00:1.00. (xvi) Compliance with Financing Documents .
(1) The Authority shall be in compliance with all agreements, conditions, covenants and terms contained in this Agreement a nd the other Financing Documents to which it is a party required to be observed or performed by it. (2) The City shall be in compliance with all agreements, conditions, covenants and terms contained in t his Agreement a nd the other Financing Documents to which it is a party required to be observed or performed by it. (3) The Manager shall be in compliance with all agreements, conditions, covenants and terms contained in the Management Agreement and the other Financing Documents to which it is a party required to be observed or performed by it . (xvii) Amendments t o Lease Agreement . The Base Rental Payment Schedule attached as Exhibit B to the Lease Agreement shall have been amended so as to increase the Base Rental Payments payable by the City thereunder by an aggregate amount equal to the principal of and interest on such Incremental Series 2024A Bonds, payable at such times and in such manner as may be necessary to provide for the payment of the principal of and interest on such Incremental Series 2024A Bonds .
(xviii) Amendments to Financing Documents. The Administrative Agent shall have received evidence satisfactory to it th at this Agreement , the Covenant Agreement, the Construction Draw Agreement and any other relevant Financing Document have been amended to include provisions attributable to the making of the Incremental Available Amount to comply with any changes r equested by the Purchasers or the Designated Purchasers ( if applicable).
(xix) Lien and Litigation Searches . The Administrative Agent shall have received (A) UCC and other Lien search reports as it shall require, dated as of a date no earlier than two (2) weeks prior to the Incremental Closing D ate and listing no effective Lien on the Collateral other than Liens granted pursuant to the Collateral Documents, and ( B) litigation and docket search reports , dated as of a date no earlier than two (2) weeks prior to the prior to the Incremental Closing D ate and listing no effective litigation against the Authority , the City, the Manager, TeamCo, the Arena, the Property or the Projec t. (xx) Written Reques t for Disbursements from Costs of Issuance Account . The Administrative Agent shall have received a copy of a Written Request for Disbursements from Costs of Issuance Account signed by an Authorized Officer of the City and submitted to the Trustee pursuant to Section 3.02 ( Costs of Issuance Account ) of the Master Indenture relating to the incremental costs of issuance for the Incremental Series 2024A Bonds .
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(xxi) Report of Proposed Debt Issuance . The Administrative Agent shall have received a copy of the Acknowledgement of Receipt of Report of Proposed Debt Issuance and Notice of Final Sale from the California Debt and Investment Advisory Commission with respect to the Incremental Series 2024A Bonds.
(xxii) Flow of Funds Memorandum. The Manager s hall have issued to the Trustee (with copies to the Authority, t he Trustee and the Administrative Agent), a flow of funds memorandum, dated the Incremental Closing Date (in form and substanc e satisfactory to the Trustee and the Administrative Agent), setting forth ( 1) the distribution and application of the proceeds of the Incremental Series 2024A Bonds to be purchased at the Incremental Closing Date, ( 2) the name and address of the transferee bank(s), ( 3) the transferee bank(s) ABA number/Swift Code/IBAN, as applicable, and ( 4) the account name(s) and number(s) into which the proceeds of the Incremental Series 2024A Bonds are to be deposited. (xxiii) Patriot Act; Anti- Money Laundering Laws, Etc . At least ten (10) days prior to the Incremental Closing Date, the Designated Purchasers (as applicable) (through the Administrative Agent) shall have received all documentation and other information relating to the Authority, the City, the Manager, TeamCo, the Trustee, the Accounts Bank and any other Person as the Designated Purchasers (through the Administrative Agent) request in order to comply with applicable “know your customer” and anti -money laundering rules and regulations, including Anti -Corruption Laws, Sanctions and the Patriot Act. (xxiv) Other Matters . All other legal matters pertaining to the Incremental Series 2024A Bonds shall be satisfactory to the Purchasers or Designated Purchasers (as applicable) and the Administrative Agent and its counsel, and the Administrative Agent shall have received such other statements, certificates, agreements, documents and information with respect to the Authority, the City, the Trustee, the Manager, TeamCo and the other parties to the Financing Documents as the Administrative Agent or the Purchasers or Designated Purchasers (through the Administrative Agent) may reasonably request.
(d) Promptly following the Incremental Closing Date pursuant to this Section 2. 05, the Administrative Agent shall distribute an amended Schedule I ( Commitment Amounts and Percentages ) to this Agreement (which shall thereafter be incorporated into this Agreement) to reflect any changes in Purchasers, the Commitments and each Purchaser’s Commitment Percentage as of such Incremental Closing Date.
(e) Notwithstanding any provision contained herein to the contrary, from and after the Incremental Closing Date and the making of any Purchases of Incremental Series 2024A Bonds on such date pursuant to paragraph (d)(ii) above, all calculations and payments of fees and of interest on the Purchases shall take into account the actual Commitment of each Purchaser and the principal amount outstanding of each Purchase made by such Purchaser during the relevant period of time.
Section 2.06. Permanent Reduction and Termination of Commitment. (a) Subject to Section 3.09 ( Termination or Reduction Fee), the applicable Commitment may be terminated in whole or permanently reduced ratably in part in an amount up to the amount by which such Commitment exceeds the aggregate principal amount of all outstanding Purchases at the time of such proposed termination or reduction as requested by the Authority (or the Manager as its Authorized Designee pursuant to the Authority Direction Letter) within three (3) Business Days of the
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Authority’s (or the Manager’s) irrevocable written notice to the Administrative Agent requesting such termination or permanent reduction; provided, that each such permanent reduction amount shall be in a minimum denomination of $1,000,000 and integral multiples of $100,000 in excess thereof . (b) Unless previously terminated, the Commitments shall terminate on the applicable Commitment Expiration Date. Once terminated, neither a Commitment nor any portion thereof may be reinstated.
Section 2.07. Interest Elections .
(a) Each Purchase initially shall be of the Type specified in the applicable Request for Purchase and, in the case of a Term Benchmark Purchase, shall have an initial Interest Period as specified in such Request for Purchase. Thereafter, the Authority (or the Manager as its Authorized Designee pursuant to the Authority Direction Letter) may elect to convert such Purchase to a different Type or to continue such Purchase and, in the case of a Term Benchmark Purchase, may elect Interest Periods therefor, all as p rovided in this Section 2.07. Th e Authority (or the Manager as its Authorized Designee pursuant to the Authority Direction Letter) may elect different options with respect to different portions of the affected Purchase and the Series 2024A Bonds comprising each such portion shall be considered a separate Purchase.
(b) To make an election pursuant to this Section 2.07, the Authority (or the Manager as its Authorized Designee pursuant to the Authority Direction Letter) shall notify the Administrative Agent (with a copy to the Authority, the City and the Trustee ) of such election by the time that a Request for Purchase would be required under Section 2.01(c ) (Requests for Purchase) if the Authority (or the Manager as its Authorized Designee pursuant to the Authority Direction Letter) were requesting a Purchase of the Type resulting from such election to be made on the effective date of such election.
Each such Interest Election Request shall be irrevocable and shall be signed by an Authorized Officer of the Authority (or the Manager as its Authorized Designee pursuant to the Authority Direction Letter).
(c) Each Interest Election Request shall specify the following information in compliance with Section 2.01(c) (Requests for Purchase):
(i) the Purchase to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Purchase (in which case the information to be specif ied pursuant to clauses (iii) and (iv) below shall be specified for each resulting Purchase); (ii) the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Purchase is to be an ABR Purchase or a Term Benchmark Purchase or an RFR Purchas e; and
(iv) if the resulting Purchase is a Term Benchmark Purchase, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “ Interest Period”.
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If any such Interest Election Request requests a Term Benchmark Purchase but does not specify an Interest Period, then the Authority shall be deemed to have selected an Interest Period of one month’s duration.
(d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Purchaser of the details thereof and of such Purchaser’s portion of each resulting Purchase.
(e) If the Authority (or the Manager as its Authorized Designee pursuant to the Authority Direction Letter) fails to deliver a timely Interest Election Request with respect to a Term Benchmark Purchase prior to the end of the Interest Period applicable thereto, then, unless such Purchase is repaid as provided herein, at the end of such Interest Period such Purchase shall be deemed to have an Interest Period that i s one month. Notwithstanding any contrary provision hereof, if an Event of Default has occurred an d is continuing and the Administrative Agent ( at the request of the Required Purchaser s) so notifies the Authority, the Manager and the Trustee, then, so long as an Event of Default is continuing (i) no outstanding Purchase may be converted to or continued as a Term Benchmark Purchase or an RFR Purchase and (ii) unless repaid, (A) each Term Benchmark Purchase shall be converted to an ABR Purchase at the end of the Interest Period applicable thereto and (B) each RFR Purchase shall be converted to an ABR Purchase immediately.
Section 2.08. Interest.
(a) Adjusted Term SOFR Rate . The Purchases comprising each Term Benchmark Purchase shall bear interest at the applicable Adjusted Term SOFR Rate for the Interest Period in effect for such Purchase.
(b) Adjusted Daily Simple SOFR . If the applicable Adjusted Term SOFR Rat e is unavailable as provided in Section 2.09 ( Alternate Rate of Interest), each R FR Purchase shall bear interest at a rate per annum equal to the applicable Adjusted Daily Simple SOFR in accordance with Section 2.09 ( Alternate Rate of Interest).
(c) Adjusted ABR Rate . If the applicable Adjusted Daily Simple SOFR is unavailable as provided in Section 2.09 ( Alternate Rate of Interest), the Purchases comprising each ABR Purchase shall bear interest at the applicable Adjusted ABR Rate in accordance with Section 2.09 ( Alternate Rate of Interest).
(d) Default Rate. The Series 2024A Bonds may also bear interest at the Default Rate as hereinafter set forth.
(e) Payment of Interest . Accrued interest on each Series 2024A Bond shall be payable in arrears on each Interest Payment Date for such Series 2024A Bond and upon termination of the applicable Commitments and the applicable Maturity Date; provided that (i) if an Event of Default has occurred and is continuing, interest accrued at the Default Rate shall be payable on demand, (ii) in the event of any repayment or prepayment of any Series 2024A Bond (other than a prepayment of an ABR Purchase p rior to the end of the applicable Availability Period ), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment, and (iii) in the event of any conversion of any Term Benchmark Purchase p rior to the end of the current Interest Period therefor, accrued interest on such Series 2024A Bond shall be payable on the effective date of such conversion.
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(f) Computation of Interest . I nterest computed by reference to the Term SOFR Rate or Daily Simple SOFR and the Alternate Base Rate hereunder shall be computed on the basis of a year of 360 days comprised of twelve 30- day months. Interest computed by reference to the Alternate Base Rate only at times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year). In each case interest shall be payable for the actual number of days elapsed (including the first day but excluding the last day). All interest hereunder on any Series 2024A Bond shall be computed on a daily basis based upon the outstanding principal amount of such Series 2024A Bond as of the ap plicable date of determination . A determination of the applicable Alternate Base Rate, the applicable Adjusted Term SOFR Rate, the Term SOFR Rate, the applicable Adjusted Daily Simple SOFR or the Daily Simple SOFR shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error. As soon as reasonably practicable f ollowing the determination of the foregoing rates , the Administrative Agent shall give written notice thereof to the Authority, the Trustee and the Manager .
Section 2.09. Alternate Rate of Interest .
(a) Subject to paragraphs (b), (c), (d), (e) and (f) of this Section 2.09, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error) (A) prior to the commencement of any Interest Period for a Term Benchmark Purchase , that adequate and reasonable means do not exist for ascertaining the applicable Adjusted Term SOFR Rat e (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period or (B) at any time, that adequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Purchasers that (A) prior to the commencement of any Interest Period for a Term Benchmark Purchase, the applicable Adjusted Term SOFR Rate for such Interest Period will not adequately and fairly reflect the cost to such Purchasers (or Purchaser) of making or maintaining their Purchases (or its Purchase) of Series 2024A Bonds included in such Purchase for such Interest Period or (B) at any time, the applicable Adjusted Daily Simple SOFR will not adequately and fairly reflect the cost to such Purchasers (or Purchaser) of making or maintaining their Purchases (or its Purchase) of Series 2024A Bonds included in such Purchase ; then the Administrative Agent shall give notice thereof to the Authority, the Manager, the Trustee and the Purchasers by telephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Authority, the Manager, the Trustee and the Purchasers that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Authority (or the Manager as its Authorized Designee pursuant to the Authority Direction Letter) delivers a new Intere st Election Request in accordance with the terms of Section 2.07 (Interest Elections) or a new Request for Purchase in accordance with the terms of Section 2 .01(c) (Requests for Purchase ), (1) any Interest Election Request that requests the conversion of any Purchase t o, or continuation of any Purchase as, a Term Benchmark Purchase and any Request for Purchase that requests a Term Benchmark Purchase shall instead be deemed to b e an Interest Election Request o r a Request for Purchase, as applicable, for (x) an RFR Purchase so long as the applicable Adjusted Daily Simple SOFR is not also the subject of Section 2.09(a)(i) or (ii) above or (y) an ABR Purchase if the applicable Adjusted Daily Simple SOFR also is the subject of Section 2.09(a)(i) or (ii)
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above and (2) any Request for Purchase that requests an RFR Purchase shall instead be deemed to be a Request for Purchase , as applicable, for an ABR Purchase; provided that if the circumstances giving rise to such notice affect only one Type of Purchases, then all other Types of Purchases shall be permitted.
Furthermore, if any Term Benchmark Purchase o r RFR Purchase i s outstanding on the date of the Authority’s and the Manager’s receipt of the notice from the Administrative Agent referred to in this Section 2.09(a) with respect to a Relevant Rate applicable to such Term Benchmark Purchase or RFR Purchase, then until (x) the Administrative Agent notifies the Authority, the Manager, the Trustee and the Purchasers that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Authority (or the Manager as its Authorized Designee pursuant to the Authority Direction Letter) delivers a new Interest Election Request in accordance with the terms of Section 2.07 ( Interest Elections) o r a new Request for Purchase in accordance with the terms of Section 2.01( c) (Requests for Purchase), (1) any Term Benchmark Purchase shall on the last day of the Interest Period applicable to such Term Benchmark Purchase , be converted by the Administrative Agent to, and shall constitute, (x) an RFR Purchase so long as the applicable Adjusted Daily Simple SOFR is not also the subject of Section 2.09(a)(i) or (ii) above or (y) an ABR Purchase i f the applicable Adjusted Daily Simple SOFR also is the subject of Section 2.09(a)(i) or (ii) above, on such day, and (2) any RFR Purchase shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Purchase .
(b) Notwithstanding anything to the contrary herein or in th e First Supplemental Indenture , if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then -current Benchmark, then ( i) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under th e First Supplemental Indenture in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement , th e First Supplemental Indenture or any other Financing Document , and (ii) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under the First Supplemental Indenture in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Purchasers without any amendment to, or further action or consent of any other party to, this Agreement, th e First Supplemental Indenture or any other Financing Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from the Required Purchasers.
(c) Notwithstanding anything to the contrary herein, in th e First Supplemental Indenture or in any other Financing Document, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein, in the First Supplemental Indenture or in any other Financing Document , any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement, th e First Supplemental Indenture or any other Financing Document .
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(d) The Administrative Agent will promptly notify the Authority, the Manager, the Trustee and the Purchasers of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to paragraph (f) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable , any Purchaser (or group of Purchasers) pursuant to this Section 2.09, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non- occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding a bsent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement, th e First Supplemental Indenture or any other Financing Document, except, in each case, as expressly required pursuant to this Section 2.09. (e) Notwithstanding anything to the contrary herein or in th e First Supplemental Indenture , at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Rate) and either (1) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (2) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non- representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above eithe r (1) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (2) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor. (f) Upon the Authority’s , the Manager’s and the Trustee’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Authority (or the Manager as its Authorized Designee pursuant to the Authority Direction Letter) may revoke any request for (i) a Term Benchmark Purchase, conversion to or continuation of Term Benchmark Purchase s t o be made, converted or continued or (ii) an RFR Purchase or conversion to RFR Purchase s, during any Benchmark Unavailability Period and, failing that , the Authority and the Manager (as its Authorized Designee pursuant to the Authority Direction Letter) will be deemed to have converted any request for a Term Benchmark Purchase or RFR Purchase, as applicable, into a request for a Purchase of or conversion to (A) an RFR Purchase so long as the applicable Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Purchase if the applicable Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event. During any B enchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then- current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determi nation of ABR. Furthermore, if any Term Benchmark Purchase or RFR Purchase is outstanding on the date of the Authority’s , the Manager’s and the Trustee’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such Term Benchmark Purchase or RFR Purchase, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.09, (1) any Term Benchmark Purchase shall on the last day of the Interest Period applicable to such Term Benchmark Purchase, be converted by the Administrative Agent to, and shall constitute, (x) an RFR Purchase so long as the applicable Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Purchase if the
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applicable Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day and (2) any RFR Purchase s hall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Purchase .
Section 2.10. Payments Generally; Pro Rata Treatment; Sharing of Setoffs . (a) The Authority shall make, or cause the Trustee to make, each payment or prepayment required to be made by it hereunder (whether of principal, interest, fees, or of amounts payable under Section 3.05 (Withholding of Taxes; Gross-Up), Section 3.10 ( Increased Costs) or Section 3.11 ( Break Funding Payments), or otherwise) in Dollars prior to 12:00 noon, New York City time, on the date when due or the date fixed for any prepayment hereunder, in immediately available funds, without setoff, recoupment or counterclaim . Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at 383 Madison Avenue, New York, New York, except that payments pursuant to (or as described in) Section 2.03 ( Optional Prepayment ), Section 2 .04 (Mandatory Prepayment ), Section 2.08 ( Interest), Section 3.05 ( Withholding of Taxes; Gross -Up), Section 3.10 ( Increased Costs) or Section 3.11 ( Break Funding Payments ) and Article X ( Expenses and Indemnification) shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in D ollars. (b) At any time that payments are not required to be applied in the manner required by Section 9.03 (Application of Payments ), and except to the extent otherwise expressly provided herein:
(i) each Purchase shall be made by the Purchasers, each payment of the Commitment Fee shall be made for account of the Purchasers, and each termination of the amount of the Commitments shall be applied to the respective Commitments of the Purchasers, pro rata according to the amounts of their respective Commitments; (ii) each Purchase shall be allocated pro rata among the Purchasers according to the amounts of their respective Commitments; (iii) each payment or prepayment of principal of the Series 2024A Bonds shall be made f or account of the Purchasers pro rata in accordance with the respective unpaid principal amounts of the Series 2024A Bonds held by them; and (iv) each payment of interest on the Series 2024A Bonds shall be made for account of the Purchasers pro rata in accordance with the amounts of interest on the Series 2024A Bonds then due and payable to the respective Purchasers. (c) At any time that payments are not required to be applied in the manner required by Section 9.03 (Application of Payments ), if at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest on the Series 2024A Bonds and fees then due to such parties, and (ii) second, towards payment of principal then due with respect to the Series 2024A Bonds, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.
(d) If any Purchaser shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Series 2024A Bonds resulting in such Purchaser receiving payment of a greater proportion of the aggregate amount of its Series 2024A
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Bonds and accrued interest thereon than the proportion received by any other Purchaser, then the Purchaser receiving such greater proportion shall purchase (for cash at face value) participations in the Series 2024A Bonds of other Purchasers to the extent necessary so that the benefit of all such payments shall be shared by the Purchasers ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Series 2024A Bonds ; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Authority pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Purchaser as consideration for the assignment of or sale of a participation in any of its Series 2024A Bonds to any assignee or participant, other than to the Authority or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Authority consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Purchaser acquiring a participation pursuant to the foregoing arrangements may exercise against the Authority rights of setoff and counterclaim with respect to such participation as fully as if such Purchaser were a direct creditor of the Authority in the amount of such participation.
(e) Unless the Administrative Agent shall have received, prior to any date on which any payment is due to the Administrative Agent for the account of the Purchaser s pursuant to the terms hereof or any other Financing Document (including any date that is fixed for prepayment by notice from the Authority to the Administrative Agent pursuant to Section 2.03(b) ( Optional Prepayment)), notice from the Authority that the Authority will not make such payment or prepayment, the Administrative Agent may assume that the Authority has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Purchasers t he amount due. In such event, if the Authority has not in fact made such payment, then each of the Purchasers severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Purchaser with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the A dministrative Agent, at the NYFRB Rate.
Section 2.11. Mitigation Obligations; Replacement of Purchasers . (a) If any Purchaser requests compensation under Section 3.10 ( Increased Costs), or if the Authority is required to pay any Indemnified Taxes or additional amounts to any Purchaser or any Governmental Authority for the account of any Purchaser pursuant to Section 3.05 ( Withholding of Taxes; Gross-Up), then such Purchaser shall use reasonable efforts to designate a different lending office for funding its purchase of Series 2024A Bonds hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Purchaser, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.05 (Withholding of Taxes; Gross-Up) or Section 3.10 (Increased Costs), as the case may be, in the future and (ii) would not subject such Purchaser to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Purchase r. The Authority hereby agrees to pay all reasonable costs and expenses incurred by any Purchaser in connection with any such designation or assignment solely from the Account Collateral and the Lease Revenue s available therefor. (b) If the Authority is required to pay any Indemnified Taxes or additional amounts to any Purchaser or any Governmental Authority for the account of any Purchaser pursuant to Section 3.05 (Withholding of Taxes; Gross -Up), or if any Purchaser requests compensation under Section 3.10 (Increased Costs), or if any Purchaser becomes a Defaulting Purchaser, or if any Purchaser does not
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consent to any proposed amendment, supplement, modification, consent or waiver of any provision of this Agreement or any other Financing Document that requires the consent of each of the Purchasers or each of the Purchasers affected thereby (so long as the consent of the Required Purchasers has been obtained), then the Authority may, at its sole expense and effort, upon notice to such Purchaser and the Administrative Agent, require such Purchaser to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 12.13 ( Successors and Assigns )), all its interests, rights (other than its existing rights to payments pursuant to Section 3.05 ( Withholding of Taxes; Gross-Up) or Section 3.10 ( Increased Costs)) and obligations under this Agreement and the other Financing Documents to an assignee that shall assume such obligations (which assignee may be another Purchaser, if a Purchaser accepts such assignment); provided that (i) the Authority shall have received the pri or written consent of the Administrative Agent, which consent shall not unreasonably be withheld, (ii) such Purchaser shall have received payment of an amount equal to the outstanding principal of its Series 2024A Bonds, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Authority (in the case of all other amounts), and (iii) in the case of any such assignment resulting from payments required to be made pursuant to Section 3.05 ( Withholding of Taxes; Gross-Up) or a claim for compensation under Section 3.10 ( Increased Costs), such assignment will result in a reduction in such payments or compensation. A Purchaser shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Purchaser or otherwise, the circumstances entitling the Authority to require such assignment and delegation cease to apply. Eac h Party hereto agrees that (x) an assignment required pursuant to this paragraph may be effected pursuant to an Assignment and Assumption executed by the Authority ( or the Manager as its Authorized Designee pursuant to the Authority Direction Letter ), the Administrative Agent and the assignee (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent and such parties are participan ts), and (y) the Purchaser required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to and be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Purchaser; provided that any such documents shall be without recourse to or warranty by the parties thereto.
Section 2.12. Defaulting Purchasers .
(a) Notwithstanding any provision of this Agreement to the contrary, if any Purchaser becomes a Defaulting Purchaser, then the following provisions shall apply for so long as such Purchaser is a Defaulting Purchaser:
(i) the Commitment Fee shall cease to accrue on the Commitment of such Defaulting Purchaser pursuant to Section 3.04(c) ( Fees); (ii) any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Purchaser (whether voluntary or mandatory, at maturity, pursuant to Section 9.03 ( Application of Payments ) or otherwise) or received by the Administrative Agent from a Defaulting Purchaser pursuant to Section 12.08 (Right of Setoff ) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first , to the payment of any amounts owing by such Defaulting Purchaser to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Purchaser to any other Purchaser
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hereunder; third, as the Authority may request (so long as no Default or Event of Default exists), to the funding of any Purchase in respect of which such Defaulting Purchaser has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, if so determined by the Administrative Agent and the Authority (or the Manager as its Authorized Designee pursuant to the Authority Direction Letter) , to be held in a deposit account and released pro rata in order to satisfy such Defaulting Purchaser’s potential future funding obligations with respect to Purchases under this Agreement; fifth, to the payment of any amounts owing to the Credit Parties as a result of any judgment of a court of competent jurisdiction obtained by any Credit Party a gainst such Defaulting Purchaser as a result of such Defaulting Purchaser’s breach of its obligations under this Agreement or under any other Financing Document; s ixth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Authority as a result of any judgment of a court of competent jurisdiction obtained by the Authority against such Defaulting Purchaser as a result of such Defaulting Purchaser’s breach of its obligations under this Agreement or under any other Financing Document; and seventh, to such Defaulting Purchaser or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Purchases i n respect of which such Defaulting Purchaser has not fully funded its appropriate share, and (y) such Purchases were made at a time when the conditions set forth in Section 4.02 ( Conditions Precedent t o Purchases) were satisfied or waived, such payment shall be applied solely to pay the Purchases of all non-Defaulting Purchasers on a pro rata basis prior to being applied to the payment of any Purchase s of such Defaulting Purchaser until such time as all Purchases are held by the Purchasers pro rata in accordance with the Commitment s.
Any payments, prepayments or other amounts paid or payable to a Defaulting Purchaser that are applied (or held) to pay amounts owed by a Defaulting Purchaser pursuant to this Section
2.11 shall be deemed paid to and redirected by such Defaulting Purchaser, and each Credit Party irrevocably consents hereto; and
(iii) the Commitment of such Defaulting Purchaser shall not be included in determining whether the Required Purchasers have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section
12.03 (Amendments and Waivers)); provided that this clause ( iii) shall not apply to the vote of a Defaulting Purchaser in the case of an amendment, waiver or other modification requiring the consent of such Purchaser or each Purchaser affected thereby. (b) If (i) a Bankruptcy Event or a Bail -In Action with respect to a Purchaser or Purchaser Parent shall occur following the date hereof and for so long as such event shall continue or (ii) any Purchaser has defaulted in fulfilling its obligation to make Purcha ses hereunder, the Administrative Agent shall notify the Authority, the City and the Manager within ten (10) days thereof and t he Authority (or the Manager as its Authorized Designee pursuant to the Authority Direction Letter ) shall have the right to repla ce such Defaulting Purchaser pursuant to Section 2.11(b) (Mitigation Obligations; Replacement of Purchasers ); provided, that, until such Defaulting Purchaser has been so replaced in accordance with Section 2.1 1(b) or Section 2.11(c), as applicable, no other Purchaser shall be obligated to make Purchases unless the Purchasers shall have entered into arrangements with the Authority or such Purchaser, satisfactory to the other Credit Parties , to defease any risk to it in respect of such Purchaser hereunder.
(c) In the event that each of the Administrative Agent and the Authority agrees that a Defaulting Purchaser has adequately remedied all matters that caused such Purchaser to be a Defaulting Purchaser, then on such date such Purchaser shall purchase at par such of the Purchases of the other
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Purchasers as the Administrative Agent shall determine may be necessary in order for such Purchaser to hold such Purchases in accordance with its Applicable Percentage.
ARTICLE III
THE AUTHORITY’S OBLIGATIONS
Section 3.01. Payment Obligations.
(a) The Authority hereby unconditionally, irrevocably and absolutely agrees to ma ke prompt and full payment of all payment obligations owed to the Series 2024A Bondholders under the Series 2024A Bonds and the other Financing Documents and to pay any other Obligations owing to the Series 2024A Bondholders, with interest thereon at the rate or rates provided in this Agreement and under such Obligations. All such Obligations shall be payable solely from the Account Collateral and the Lease Revenues available therefor .
(b) The Authority shall pay, or cause to be paid, in full each Series 2024A Bond and all interest thereon on the applicable Commitment Expiration Date or, if earlier, the related Maturity Date, solely from the Account Collateral and the Lease Revenues available therefo r. (c) The Authority shall pay all costs and expenses of the Administrative Agent, the Purchasers and the Series 2024A Bondholders in accordance with Section 10.01 ( Expenses). (d) In addition, if at any time any Governmental Authority shall require revenue or other documentary stamps or any other tax in connection with the execution or delivery of this Agreement or any other Financing Documents, then, i f the Authority or the City lawfully may pay for such stamps, taxes or fees, the Authority shall pay, when due and payable, for all such stamps, taxes and fees, including interest and penalties thereon, and the Authority agrees to save the Series 2024A Bondholders harmless from and against any and all liabilities with respect to or resulting from any delay of the Authority in paying, or omission of the Authority to pay, such stamps, taxes and fees hereunder.
Section 3.02. Default Rate. Upon the occurrence and during the continuance of an Event of Default, the Series 2024A Bonds and all other Obligations shall bear interest at the Default Rate, which shall be payable by the Authority to the Administrative Agent upon demand therefor and be calculated on the basis of a 360- day year and actual days elapsed .
Section 3.03. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Series 2024A Bond, together with all fees, charges and other amounts which are treated as interest on such Series 2024A Bond under Applicable Law (collectively the “ Charges”), shall exceed the maximum lawful rate (the “Maximum Rate ”) which may be contracted for, charged, taken, received or reserved by the Series 2024A Bondholders in accordance with Applicable Law, the rate of interest payable in respect of such Series 2024A Bonds hereunder, together with all Charges payable in respect thereof, shall be limited to the Ma ximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Series 2024A Bonds but were not payable as a result of the operation of this Section 3.03 shall be cumulated and the interest and Charges payable to such Series 2024A Bondholders in respect of other Series 2024A Bonds or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the NYFRB Rate to the date of repayment, shall have been received by such Series 2024A Bondholder.
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Section 3.04. Fees.
(a) The Authority agrees to pay to the Administrative Agent, for the account of each Purchaser, a nonrefundable commitment fee (each a “Commitment Fee ”) as follows: (i) a Commitment Fee which shall accrue at the Initial Commitment Fee Rate on the daily amount of the Initial Available Commitment during the period from and including the Initial Closing Date to but excluding the date that is the earlier of (x) the date on which such Initial Available Commitment is fully advanced and (y) the applicable Commitment Expiration Date; and (ii) a Commitment Fee which shall accrue at the Incremental Commitment Fee Rate on the daily amount of the Incremental Availab le Amount, if any, during the period from and including the Incremental Closing D ate to but excluding the date that is the earlier of (x) the date on which such Incremental Available Amount is fully advanced and (y) the applicable Commitment Expiration Date . The applicable Commitment Fee shall be payable as Financing Costs in accordance with the provisions of Sections 3.1(b)(v) and (d) ( Operating Account) of the Accounts Agreement . The applicable Commitment Fee shall be due and payable quarterly in arrears on the last day of each March, June, September and December of each calendar year (beginning on the first such date to occur after the Initial Closing Date or the Incremental Closing D ate, if applicable) and on the applicable Commitment Expiration Date, or such earlier date on which the Commitment may be terminated in accordance with the terms of this Agreement. The applicable Commitment Fee shall be calculated on the basis of a 360 -day year and actual days elapsed . (b) The Authority agrees to pay, or cause the Manager to pay or cause to be paid to , the Administrative Agent, for its own account, fees payable in the amounts and at the times separately agreed upon in writing between the Authority and the Administrative Agent (the “ Administrative Agent Fees”), which Administrative Agent Fees shall be payabl e as Financing Cost s in accordance with the provisions of Sections 3.1(b)(v) and (d) ( Operating Account) of the Accounts Agreement . (c) All fees payable hereunder shall be paid on the dates due, in dollars in immediately available funds, to the Administrative Agent for distribution, in the case of the applicable Commitment Fees, to the applicable Purchasers . Fees paid shall not be refundable under any circumstances.
Section 3.05. Withholding of Taxes; Gross -Up.
(a) Payments Free of Taxes; Obligation to Withhold. Any and all payments by or on account of any obligation of the Authority hereunder or under the Series 2024A Bonds or any other Financing Document shall be made free and clear of and without deduction or withholding for any Taxes; provided, that if the Authority or the applicable withholding agent shall be required by Applicable Law to deduct any Taxes from any such payments, then (i) if such Tax is an Indemnified Tax, the sum payable by the Authority shall be increased as necessary so that after making all required deductions or withholdings (including such deductions and withholdings applicable to additional sums payable under this Section 3.05) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made, (ii) the Authority or the applicable withholding agent shall make such deduction or withholding, and (iii) the Authority or the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law .
(b) Payment of Other Taxes b y the Authority. Without limiting the provisions of Section
3.05(a) above, the Authority shall timely pay, or cause to be paid, any Other Taxes to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent timely reimburse it for, Other Taxes .
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(c) Evidence of Payments . As soon as practicable after any payment of Taxes or Other Taxes by the Authority to a Governmental Authority pursuant to this Section 3.05, the Authority shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment , a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent . (d) Indemnification by t he Authority. The Authority, to the fullest extent permitted by Applicable Law, shall indemnify each Recipient, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 3.05) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient, and any penalties, interest and reasonable expenses arising therefrom or wit h respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate stating the amount of such payment or liability delivered to the Authority and the Manager by the Administrative Agent on its own behalf or on behalf of a Recipient, shall be conclusive absent manifest error. In addition, the Authority shall indemnify each Recipient, within ten (10) days after demand therefor, for any additional amounts that such Recipient is required to pay as a result of any failure of the Authority to pay any Taxes when due to the appropriate Governmental Authority or to deliver to any Recipient pursuant to paragraph (c) ( Evidence of Payments) above, documentation evidencing the payment of Taxes . (e) Indemnification by the Purchasers . Each Purchaser (other than the Administrative Agent) shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Purchaser (but only to the extent that the Authority has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Authority to do so), (ii) any Taxes attributable to such Purchaser’s failure to comply with the provisions of Section 12.13(c) ( Participants) relating to the maintenance of a Participant Register, and (iii) any Excluded Taxes attributable to such Purchaser, in each case, that are payable or paid by the Administrative Agent in connection with any Financing Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate stating the amount of such payment or liabilit y delivered to any Purchaser by the Administrative Agent shall be conclusive absent manifest error. Each Purchaser (other than the Administrative Agent) hereby authorizes the Administrative Agent to setoff and apply any and all amounts at any time owing to such Purchaser under any Financing Document or otherwise payable by the Administrative Agent to such Purchaser from any other source against any amount due to the Administrative Agent under this paragraph (e).
(f) Status of Purchasers.
(i) Any Purchaser (other than the Administrative Agent) that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Financing Document shall deliver to the Administrative Agent, and the Administrative Agent shall deliver to the Authority and the Manager , at the time or times reasonably requested by the Authority or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Authority or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Purchaser, if reasonably requested by the Authority or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonabl y requested
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by the Authority or the Administrative Agent as will enable the Authority or the Administrative Agent to determine whether or not such Purchaser is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in paragraph ( f)(ii)(1), (ii)(2) and (ii)(4) below) shall not be required if in such Purchaser’s reasonable judgment s uch completion, execution or submission would subject such Purchaser to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Purchaser . (ii) Without limiting the generality of the foregoing,
(1) any Purchaser that is a U.S. Person shall deliver to the Authority and the Administrative Agent on or prior to the date on which such Purchaser becomes a Purchaser under this Agreement (and from time to time thereafter upon the reasonable request of the Authority or the Administrative Agent), an executed copy of IRS Form W-9 certifying that such Purchaser is exempt from U.S. federal backup withholding tax;
(2) any Foreign Purchaser shall, to the extent it is legally entitled to do so, deliver to the Authority and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Purchaser becomes a Purchaser under this Agreement (and from time to time thereafter upon the reasonable request of the Authority or the Administrative Agent), whichever of the following is applicable:
(A) in the case of a Foreign Purchaser claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Financing Document, an executed copy of IRS Form W -8BEN-E or IRS Form W -8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Financing Document , IRS Form W -8BEN-E or IRS Form W -8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty; (B) in the case of a Foreign Purchaser claiming that its extension of credit will generate U.S. effectively connected income, an executed copy of IRS Form W-8ECI;
(C) in the case of a Foreign Purchaser claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit D-1 to the effect that such Foreign Purchaser is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Authority within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “ U.S. Tax Compliance Certificate”) and (y) an executed copy of IRS Form W -8BEN-E or IRS Form W-8BEN; or
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(D) to the extent a Foreign Purchaser is not the beneficial owner, an executed copy of IRS Form W -8IMY, accompanied by IRS Form W -8ECI, IRS Form W-8BEN-E, IRS Form W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-2 or Exhibit D-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Purchaser is a partnership and one or more direct or indirect partners of such Foreign Purchaser are claiming the portfolio intere st exemption, such Foreign Purchaser may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-4 on behalf of each such direct and indirect partner;
(3) any Foreign Purchaser shall, to the extent it is legally entitled to do so, deliver to the Authority, the Manager and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Purchaser becomes a Purchaser under this Agreement (and from time to time thereafter upon the reasonable request o f the Authority (or the Manager as its Authorized Designee pursuant to the Authority Direction Letter ) or the Administrative Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Authority (or the Manager as its Authorized Designee pursuant to the Authority Direction Letter ) or the Administrative Agent to determine the withholding or deduction required to be made; and
(4) if a payment made to a Purchaser under any Financing Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Purchaser were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Purchaser shall deliver to the Authority and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Authority or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Authority or the Administrative Agent as may be necessary for the Authority and the Administrative Agent to comply with their obligations under FATCA and to determine that such Purchaser has complied with such Purchaser’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Each Purchaser agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Authority and the Administrative Agent in writing of its legal inability to do so.
(g) Treatment of Certain Refunds. If any Party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.05 (including by the payment of additional amounts pursuant to this Section 3.05), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, under this Section 3.05 with respect to the Taxes giving
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rise to such refund), net of all out -of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that such indemnifying party, upon the request of such indemnified party, agrees to repay to such indemnified party the amount paid over pursuant to this paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority.
Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the paym ent of which would place such indemnified party in a less favorable net after -Tax position than such indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph (g) shall not be construed to require any indemnified party to make available its tax returns (or any other information relating to its Taxes which it deems confidential) to the indemnifying party or any other Person. (h) Survival. Without prejudice to the survival of any other agreement of the Authority hereunder, each Party’s obligations under this Section 3.05 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Purchaser, the termination of the Commitments and the repayment, satisfaction or discharge in full of the Series 2024A Bonds and a ll other Obligations under any Financing Document .
Section 3.06. Obligations Absolute.
(a) The payment obligations of the Authority and the City under this Agreement, the Series 2024A Bonds and the other Financing Documents shall be paid solely from the Account Collateral and the Lease Revenues available therefor, shall be unconditional and irrevocable and shall be pai d strictly in accordance with the terms of this A greement and the other Financing Documents under all circumstances, including , without limitation , the following:
(i) any lack of validity or enforceability of this Agreement, the Series 2024A Bonds or any of the other Financing Documents;
(ii) any amendment or waiver of or any consent to departure from all or any of the Financing Documents;
(iii) the existence of any claim, set -off, defense or other right which the Authority or the City may have at any time against any Purchaser, any other Series 2024A Bondholder or any other P erson, whether in connection with this Agreement, the other Financing Documents, the transactions contemplated herein or therein or any unrelated transaction; or (iv) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Other than the Account Collateral and the Lease Revenues, neither the Purchasers nor the Administrative Agent shall have any right, title, interest or claim to any other funds of the Authority or the City with respect to this Agreement, the Series 2024A Bonds or the other Financing Documents . (b) All fees payable pursuant to this Agreement shall be deemed to be fully earned when due and non- refundable when paid.
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Section 3.07. Purchaser Consent to Extension of Commitment . So long as JPMorgan Chase Bank, National Association is a Purchaser , no sooner than one hundred twenty (120) days prior to the applicable Commitment Expiration Date, the Authority (or the Manager as its Authorized Designee pursuant to the Authority Direction Lette r) may provide written notice to the Administrative Agent of its desire for the Purchaser s to extend the Initial Commitment Expiration Date or the Incremental Commitment Expiration Date ( if applicable) and to continue to purchase the Series 2024A Bonds hereunder and requesting the Purchaser s to continue to purchase Series 2024A Bonds and to extend such Initial Commitment Expiration Date o r Incremental Commitment Expiration Date ( if applicable). Promptly following receipt of any such notice, the Administrative Agent shall advise the Purchasers of the contents thereof. The Purchaser s will make reasonable efforts to respond to such request within sixty (60) days after receipt of all information necessary, in the Purchaser’s reasonable judgment, to permit the Purchaser s to make an informed credit decision. The Purchasers may, in their sole and absolute discretion, decide to accept or reject any such request and no consent shall become effective unless the Purchasers shall have consented thereto in writing. In the event the Purchasers fail to definitively respond to such request within such sixty (60) day period, the Purchaser s shall be deemed to have refused to grant such request .
Section 3.08. Funding Indemnity. To the extent permitted by Applicable Law, in the event any Purchaser shall incur any loss, cost, or expense (including, without limitation, any loss, cost, or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquire d or contracted to be acquired by such Purchaser to purchase or hold the Series 2024A Bonds and/or to make Purchases in the amounts scheduled to be made on each Date of Purchase o r the relending or reinvesting of such deposits or other funds or amounts paid or prepaid to such Purchaser) as a result of (a) failure to satisfy the conditions of Section 4.02 (Conditions Precedent to Purchases ) in connection with a Purchase o n a proposed Date of Purchase as established in a Request for Purchase, or (b) any prepayment of any Series 2024A Bond, or any portion thereof, on a date other than the last day of the applicable Interest Period, or (c) any prepayment of a Series 2024A Bond without appropriate notice, in any case, whether before or after default, and whether or not such payment is required by any provision of this Agreement or the Indenture, then upon the demand of any Purchaser, the Authority shall pay to such Purchaser, solely from the Account Collateral and the Lease Re venues available therefor, a prepayment premium in such amount as will reimburse such Purchaser for such loss, cost, or expense. If the Administrative Agent on behalf of any such Purchaser requests such prepayment premium, such Purchaser shall provide to the Authority a certificate setting forth the computation of the loss, cost, or expense giving rise to the request for such prepayment premium in reasonable detail and such certificate shall be conclusive if reasonably determined .
Section 3.09. Termination or Reduction Fee . The Authority shall pay to the Purchaser s a Reduction Fee or Termination Fee, as applicable, in connection with each permanent reduction or termination of th e applicable Commitment pursuant to Section 2. 06 (Permanent Reduction and Termination of Commitment) p rior to the applicable Commitment Expiration Date, in an amount equal to the Reduction Fee or Termination Fee, as applicable, payable on the date of such termination or each such reduction.
Section 3.10. Increased Costs .
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, liquidity or similar requirement (including any compulsory loan requirement, insurance charge or other
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assessment) against assets of, deposits with or for the account of, or credit extended by, any Purchaser or any other Series 2024A Bondholder;
(ii) impose on any Purchaser or any other Series 2024A Bondholder or the applicable offshore interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or P urchases made by any Purchaser or any other Series 2024A Bondholder or participation therein ; or
(iii) subject any Recipient to any Taxes ( other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto ; and the result of any of the foregoing shall be to (I) increase the cost to such Purchaser or such other Recipient of purchasing or holding or committing to purchase any Series 2024A Bond or of making, continuing, converting or maintaining any Series 2024A Bonds (or of maintaining its obligation to purchase any such Series 2024A Bonds), or (II) reduce the amount of any sum received or receivable by such Purchaser or such other Recipient hereunder or under the Series 2024A Bonds or any other Financing Docume nts (whether of principal, interest or otherwise), then the Authority will pay to such Purchaser or such other Recipient, as the case may be, solely from the Account Collateral and the Lease Revenues available therefor, such additional amount or amounts as will compensate such Purchaser or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered. (b) If any Purchaser determines that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Purchaser’s capital or on the capital of such Purchaser’s holding company, if any, as a consequence of this Agreement or the Series 2024A Bonds purchased by such Purchaser, to a level below that which such Purchaser or such Purchaser’s holding company could have achieved but for such Change in Law (taking into consideration such Purchaser’s policies and the policies o f such Purchaser’s holding company with respect to capital adequacy and liquidity), then from time to time the Authorit y will pay to such Purchaser or such other Series 2024A Bondholder, solely from the Account Collateral and the Lease Revenues available therefor, such additional amount or amounts as will compensate such Purchaser or such Purchaser’s holding company for any such reduction suffered. (c) A certificate of any Purchaser or any other Recipient setting forth the amount or amounts necessary to compensate such Purchaser or its holding company, or such other Recipient, as the case may be, as specified in Section 3.10(a ) or (b) above shall be delivered to the Authority, the Trustee and the Manager and shall be conclusive absent manifest error . The Authority shall pay such Purchaser or such other Recipient the amount shown as due on any such certificate within ten (1 0) days after receipt thereof.
(d) Failure or delay on the part of any Purchaser or any other Recipient to demand compensation pursuant to this Section 3.10 shall not constitute a waiver of such Purchaser’s or such other Recipient’s right to demand such compensation; provided, that the Authority shall not be required to compensate any Purchaser or any other Recipient pursuant to this Section 3.10 for any increased costs incurred or reductions suffered more than two hundred seventy days (270) days prior to the date that such Purchaser or such other Recipient, as the case may be, notifies the Authority of the Change in Law giving rise to such increased costs or reductions, and of such Purchaser’s o r such other
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Recipient’s intention to claim compensation therefor; provided, further, that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270- day period referred to above shall be extended to include the period of retroactive effect thereof. (e) The Parties agree that any and all payments made pursuant to this Section 3.10 shall be fees paid under this Agreemen t solely from the Account Collateral and the Lease Revenues available therefor, and are not payments under the Series 2024A Bonds. (f) Without prejudice to the survival of any other agreement of the Authority and the City hereunder, the agreements and obligations of the Authority and the City contained in this Section 3.10 shall survive the termination of this Agreement and the payment in full of the Series 2024A Bonds and the Obligations of the Authority and the City thereunder and hereunder.
Section 3.11. Break Funding Payments.
(a) With respect to Purchases t hat are not RFR Purchase s, in the event of (i) the payment of any principal of any Term Benchmark Purchase other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default or an optional or mandatory prepayment of Series 2024A Bonds), (ii) the conversion of any Term Benchmark Purchase other than on the last day of the Interest Period applicable thereto , (iii) the failure to borrow, convert, continue or prepay any Term Benchmark Purchase on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked unde r any section hereunder a nd is revoked in accordance therewith), or (iv) the assignment of any Term Benchmark Purchase other than on the last day of the Interest Period applicable thereto as a result of a request by the Authority pursuant to Section 2.11 (Mitigation Obligations; Replacement of Purchase rs), then, in any such event, the Authority shall compensate each Purchaser for the loss, cost and expense attributable to such event solely from the Account Collateral and the Lease Revenues available therefor . (b) With respect to RFR Purchases, in the event of (i) the payment of any principal of any RFR Purchase other than on the Interest Payment Date applicable thereto (including as a result of an Event of Default or an optional or mandatory prepayment of Series 2024A Bonds), or (ii) the failure to borrow or prepay any RFR Purchase on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under any section hereunder and is revoked in accordance therewith), then, in any such event, the Authority shall compensate each Purchaser for the loss, cost and expense attr ibutable to such event solely from the Account Collateral and the Lease Revenues available therefor .
(c) A certificate of any Purchaser setting forth any amount or amounts that such Purchaser is entitled to receive pursuant to this Section 3.11 shall be delivered to the Authority, the Trustee and the Manager and shall be conclusive absent manifest error. The Authority shall pay such Purchaser the amount shown as due on any such certificate within ten (10) days after receipt thereof .
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent t o Closing. This Agreement and the obligation of each Purchaser to make the Initial Purchase hereunder will become effective on the Initial Closing Date provided each of the conditions set forth in this Section 4.01 have been satisfied (or waived in accordance with Section 12.03 ( Amendments and Waivers)):
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(a) Resolutions, Etc . The Administrative Agent shall have received t he following resolutions, organizational documents and other information, in each case satisfactory in form and substance to the Administrative Agent:
(i) One or more c ertificates of an Authorized Officer of the Authority, dated the Initial Closing Date, certifying as to (A) the attached Resolution of the Board of Directors of the Authority authorizing and approving the issuance of the Series 2024A Bonds and the execution and delivery of this Agreement, the Series 2024A Bonds and the other Authority Documents as being validly adopted and true and correct and in full force and effect on th e Initial Closing Date , and ( B) the authority, incumbency and specimen signatures of the Authorized Officer of the Authority authorized to sign this Agreement and the other Authority Documents and any other documents to be delivered by it hereunder and who will be authorized to represent the Authority in connection with this Agreement, upon which such Purchaser may rely until it receives a new such certificate .
(ii) A Section 8855 Certificate of an Authorized Officer of the Authority, dated the Initial Closing Date, certifying as to the Authority’s adoption of local debt policy. (iii) A certificate of the Secretary of the Authority certifying as to the attached Joint Exercise of Powers Agreement dated as of January 28, 1992, by and between the City and the Anaheim Redevelopment Agency.
(iv) Notice of a Joint Powers Agreement, as certified by the California Secretary of State.
(v) One or more certificates of an Authorized Officer of the City, dated the Initial Closing Date , certifying as to (A) the attached Resolution of the City C ouncil of the City authorizing and approving the execution and delivery of this Agreement and the other City Documents as being validly adopted and true and correct and in full force and effect on the Initial Closing Date , and (B) t he authority, incumbency and specimen signatures of the Authorized Officer of the City authorized to sign this Agreement and the other City Documents and any other documents to be delivered by it hereunder and who will be authorized to represent the City in connection with this Agreement, upon which such Purchaser may rely until it receives a new such certificate.
(vi) A Section 8855 C ertificate of an Authorized Officer of the City , dated the Initial Closing Date, certifying as to the City’s adoption of local debt policy. (b) Financing Documents . The Administrative Agent shall have received an executed original or certified copy, as applicable, of each of the Financing Documents (including, without limitation, the Authority Direction Letter) , each duly executed and delivered by the respective parties thereto and in form and substance satisfactory to the Administrative Agent. (c) Issuance and Authentication of Initial Series 2024A Bonds. The Administrative Agent shall have received the following documents in form and substance satisfactory to the Administrative Agent:
(i) The Trustee shall authenticate two Series 2024A Bonds and deliver a Series 2024A Bond to each of the Purchasers thereof in an amount equal to each Purchaser’s Initial
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Available Commitment, [$224,200,000] and $100,000,000, respectively, upon receipt of a Written Request of the Authority in accordance with the terms of Section 13.01 ( Authorization and Issuance of Series 2024A Bonds ) of the First Supplemental Indenture. (ii) The Initial Series 2024A Bonds shall be dated the Initial Closing Date and be issued in fully registered form, without coupons in Authorized Denominations and in substantially the form set forth in Exhibit A ( Form of Series 2024A Bond) attached to the First Supplemental Indenture. The Initial Series 2024A Bonds shall be initially registered in the name of the Purchasers (or as otherwise directed by the Purchasers) and shall not initially be issued as Book-Entry Bonds.
(d) Opinions of Counsel . The Administrative Agent shall have received the following opinions, dated th e Initial Closing Date and addressed to the Administrative Agent and the Purchasers (or on which the Purchasers are otherwise expressly authorized to rely), in each case satisfactory in form and substance to the Administrative Agent:
(i) From Stradling Yocca Carlson & Raut h LLP, as Bond Counsel, as to (A) the due execution and delivery and validity with respect to the Authority of the Initial Series 2024A Bonds, the Indenture (including the First S upplemental Indenture ), this Agreement and the other Authority Documents , (B) the Initial Series 2024A Bonds not being subject to the registration requirements of the Securities Act and the Indenture being exempt from qualification pursuant to the Trust Indenture Act of 1939, (C) the validity of the first and exclusive assignment to the Trustee ( for the benefit of the Owners of the Bonds , including the Series 2024A Bondholders), of all of the Authority’s right, title and interest in and to the Ground Lease and the Lease Agreement (including, without limitation, its right to receive the Lease Revenues (including the Base Rental Payments) to be paid by the City under and pursuant to the Lease Agreement, ( D) the validity of the first priority pledge by the Authority to the Trustee ( for the benefit of the Owners of the Bonds, including the Series 2024A Bondholders ) of certain pledged a ccounts held under the Indenture, and ( E) the validity of the first lien and security interest in the Account Collateral created by the City in favor of the Trustee, as assignee of the Authority ( for the benefit of the Owners of the Bonds , including the Series 2024A Bondholders).
(ii) From the City Attorney of the City, as counsel for the Authorit y, which provides for, among other opinions, the following: ( A) the Authority is a joint exercise of powers entity duly organized and existing under the laws of the State of California ; (B) the execution, delivery and performance by the Authority of this Agreement, the Initial Series 2024A Bonds and the other Authority Documents are within the Authority’s powers, have been duly authorized by all necessary action, and require no action by or in respect of, or filing with, any governmental body, agency or official that has not been accomplished; (C) this Agreement, the Initial Series 2024A Bonds and the other Authority Documents have been duly authorized, executed and delivered and this Agreement, the Initial Series 2 024A Bonds when issued, and the other Authority Documents are and will be valid, binding and enforceable special obligations of the Authority; (D) the adoption of the Authority Resolution and the execution and delivery of the Authority Documents and the Initial Series 2024A Bonds by the Authority and compliance with the provisions thereof will not conflict with or constitute a breach of, or default under, any agreement or other instrument to which the Authority is a party or by which it is bound, or any existing law, regulation, court order or decree to which the Authority is subject or any provision of the laws of the State relating to the Authority and its affairs ; and
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(E) there is no action, suit, proceeding, inquiry or investigation, or before any court, governmental agency, public board or body, pending or threatened (i) affecting the existence of the Authority or the titles of its officers to their respective offices, (ii) affecting or seeking to prohibit, restrain or enjoin the issuance or delivery of the Initial Series 2024A Bonds, or (iii) in any way contesting or affecting the validity or enforceability of the Authority Documents or the Initial Series 2024A Bonds or any of the proceedings for the authorization, issuance or delivery of the Initial Series 2024A Bonds or the Authority Documents, or the existence or powers of the Authority or its authority to enter into, adopt or perform its obligations under any of the Authority Documents .
(iii) From the City Attorney of the City, as counsel for the City, which provides for, among other opinions, the following: (A) the City is a municipal corporation and charter city duly organized and existing under and by virtue of its charter and the Constitution and laws of the State of California ; (B) the execution, delivery and performance by the City of this Agreement and the other City Documents are within the City ’s powers, have been duly authorized by all necessary action, and require no action by or in respect of, or filing with, any governmental body, agency or official that has not been accomplished, (C) this Agreement and the other City Documents have been duly authorized, executed and delivered and this Agreement and the other City Documents are and will be valid, binding and enforceable obligations of the City; (D) the adoption of the City Resolution and the execution and delivery of the City Documents by the City and compliance with the provisions thereof will not conflict with or constitute a breach of, or default under, any agreement or other instrument to which the City is a party or by which it is bound, or any existing law, regulation, court order or decree to which the City is subject or any provision of the laws of the State relating to the City and its affairs; and (E) there is no action, suit, proceeding, inquiry or investigation, or before any court, governmental agency, public board or body, pending or threatened (i) affecting the existence of the City or the titles of its officers to their respective offices, (ii) affecting or seeking to prohibit, restrain or enjoin the issuance or delivery of the Initial Series 2024A Bonds or the payment of the Lease Revenues (including the Base Rental Payments) , or (iii) in any way contesting or affecting the validity or enforceability of the City Documents or the Initial Series 2024A Bonds or any of the proceedings for the authorization, issuance or delivery of the Initial Series 2024A Bonds or the City Documents, or the existence or powers of the City or its authority to enter into, adopt or perform its obligations under any of the City Documents. (iv) From Dorsey & Whitney, LLP, as co unsel to the Trustee, dated the Initial Closing Date, which provides for, among other opinions, the following: (A) the Trustee has duly authorized, executed and delivered the Indenture (including the First Supplemental Indenture) and the other Financing Documents to which it is a party, and has duly authenticated and delivered the Initial Series 2024A Bonds on the Initial Closing Date; ( B) the Indenture (including the First Supplemental Indenture ) and the other Financing Documents to which it is a party constitute the legally valid and binding obligations of the Trustee, enforceable against the Trustee in accordance with their respective terms, except that the enforceability thereof may be limited b y applicable bankruptcy, insolvency, reorganization, moratorium and other laws in effect from time to time affecting the rights of creditors generally and except to the extent that the enforceability thereof may be limited by the application of general principles of equity; and (C) such other matters as such Purchaser may reasonably request . (e) Officer’s Certificates . The Administrative Agent shall have received t he following officer’s certificates, in each case satisfactory in form and substance t o the Administrative Agent:
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(i) A certificate dated the Initial Closing Date, executed by an Authorized Officer of the Authority, certifying that : (A) the representations and warranties of the Authority contained in this Agreement and each other Authority Document and each certificate or instrument delivered by the Authority to such Purchaser pursuant hereto or thereto are true and correct in all material respects ( other than the representations and warranties which are qualified by a Material Adverse Effect or other materiality , in which case such representations and warranties are t rue and correct in all respects) on and as of the Initial Closing Date with the same effect as if made on th e Initial Closing D ate; (B) no Default or Event of Default relating to or affecting the Authority has occurred and is continuing or would result from the Authority’s execution and delivery of this Agreement, the Initial Series 2024A Bonds or any of the other Authority Documents or the acceptance of the Commitment by the Authority; and (C) there is no action, suit, proceeding, inquiry or investigation pending or, to the best knowledge of such Authorized Officer of the Authority after reasonable investigation, threatened (1) to restrain or enjoin the execution or delivery of any of the Initial Series 2024A Bonds, (2) in any way contesting or affecting the validity of the Initial Series 2024A Bonds or the Authority Documents or the Liens created by the Authority Documents or (3) in any way contesting the existence or powers of the Authority, nor to the best knowledge of such Authorized Officer of the Authority after reasonable investigation, is there any basis for any such action, suit, proceeding, inquiry or investigation, wherein an unfavorable decision, ruling or finding would make invalid or adversely affect the authorization, execution, delivery or performance by the Authority of the foregoing.
(ii) A certificate dated the Initial Closing Date, executed by an Authorized Officer of the City, certifying that : (A) the representations and warranties of the City c ontained in this Agreement and each other City Document and each certificat e or instrument delivered by the City to such Purchaser pursuant hereto or thereto are true and correct in all material respects (other than the representations and warranties which are qualified by a Material Adverse Effect or other materiality , in which case such representations and warranties are t rue and correct in all respects) on and as of the Initial Closing Date with the same effect as if made on th e Initial Closing Date; ( B) no Default or Event of Default relating to or affecting the City has occurred and is continuing or would result from the City’s execution and delivery of this Agreement or any of the other City D ocuments; and (C) there is no action, suit, proceeding, inquiry or investigation pending or, to the best knowledge of such Authorized Officer of the City after reasonable investigation, threatened (1) to restrain or enjoin the payment of the Base Rental Payments or the execution and delivery of the City Documents, ( 2) in any way contesting or affecting the validity of the City Documents or the Liens created by the City Documents or (3) in any way contesting the existence or powers of the City, nor to the best knowledge of such Authorized Officer of the City after reasonable investigation, is there any basis for any such action, suit, proceeding, inquiry or investigation, wherein an unfavorable decision, ruling or finding would make invalid or adversely affect the authorization, execution, delivery or performance by the City of the foregoing.
(iii) A certificate dated the Initial Closing Date, signed by a duly authorized officer of the Trustee, certifying that : (A) the Trustee is a national banking association organized and existing under and by virtue of the laws of the United States of America, having the full power and being qualified to enter into and perform its duties and obligations under the Indenture and the other Financing Documents to which it is a party; ( B) the Trustee is duly authorized to enter into the Indenture and the other Financing Documents to which it is a party and to authenticate and deliver the Initial Series 2024A Bonds to such Purchase r pursuant to the terms of the
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Indenture; (C) the attached general resolution of the Trustee authorizing and approving the execution and delivery of the Indentur e and the other Financing Documents to which it is a party has been validly adopted and is true and correct and in full force and effect on the Initial Closing Date; (D) the authority, incumbency and specimen signatures of the authorized officer s of the Trustee authorized to sign the Indenture and the other Financing Documents to which it is a party, (E) the execution and delivery by the Trustee of the Indenture and the other Financing Documents to which it is a party and compliance with the provisions on the Trustee’s part contained therein, and the authentication and delivery of the Initial Series 2024A Bonds, will not (1) conflict with or constitute a breach of or default under any law, administrativ e regulation, judgment, decree , agreement or instrument to which the Trustee is a party or is otherwise subject, or (2) result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the Collateral h eld by the Trustee under the terms of any such law, administrative regulation, judgment, decree, agreement or instrument except as provided in the Collateral Documents ; and ( F) to the Trustee’s knowledge, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served on, or threatened against, the Trustee, affecting the existence of the Trustee or the titles of its officers to their respective offices, or in any way contesting or affecting the validity or enforceability of the Indenture or any other Financing Document to which it is a party, or contesting the power of the Trustee or its authority to enter into, adopt or perform its obligations under the Indenture or any other Financing Document to which it is a party, wherein an unfavorable decision, ruling or finding would adversely affect the validity or enforceability of the Indenture or any other Financing Document to which it is a party or the authentication and delivery of the Initial Series 2024A Bonds.
(f) Governmental Approvals . The Authority and the City shall have obtained and delivered to the Administrative Agent true, complete and correct copies of all Governmental Approvals and all consents of other Persons (as applicable), in each case that are necessary in connection with the transactions contemplated by this Agreement and the other Financing Documents and required hereunder and thereunder to be delivered as of the Initial Closing Date, and each of the foregoing shall be in full force and effect and in form and substance sat isfactory to the Administrative Agent. Any applicable waiting periods shall have expired without any action being taken or threatened by any Governmental Authority which would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Financing Documents or the financing contemplated thereby and no action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending, and the time for any applicable Governmental Authority to take action to set aside its consent to its own motion shall have expired. (g) Proceedings and Documents. All corporate and other proceedings in connection with the transactions contemplated by this Agreement and the other Financing Documents and all documents and instruments incident to such transactions shall be satisfactory to such Purchaser and its special counsel, and such Purchaser and its special counsel shall have received all such counterpart originals or certified or other copies of such documents as such Purchaser or its special counsel may reasonably request.
(h) Performance; No Default . The Authority and the City shall have performed and complied with all agreements and conditions contained in this Agreement and the other Financing Documents to which it is a party required to be performed or complied with by it prior to or at the Closing. Before and after giving effect to the issue and delivery of the Initial Series 2024A Bonds, no
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Default or Event of Default shall have occurred and be continuing or would result from the Authority’s or the City’s execution and delivery of this Agreement or any of the other Financing Documents. (i) No Litigation. No action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, Governmental Authority, public board or body, shall be pending or threatened (i) against the Authority or the City affecting the existence or powers of the Authority or the City (or any of their officials in their respective capacities as such) or affecting or seeking to prohibit, restrain or enjoin the issuance or delivery of the Initial Series 2024A Bonds or contesting or affecting the validity or enforceability of the Initial Series 2024A Bonds or the Financing Documents or contesting the powers of the Authority or the City or their authority to enter into, adopt or perform their obligations under any of the foregoing, wherein an unfavorable decision, ruling or finding would materially adversely affect the validity or enforceability of the Financing Documents; or (ii) against the Manager, TeamCo, the Arena or the Project which (x) could materially impair the transactions contemplated by the Transaction Documents or (y) could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect .
(j) Establishment and Funding of Accounts. The Administrative Agent shall have received evidence satisfactory to it that (i) each account and Pledged Account required under the Indenture and the Accounts Control Agreement has been established in accordance with the terms of the Indenture and the Accounts Control Agreement , respectively, and (ii) the proceeds of the Initial Series 2024A Bonds issued on the Initial Closing Date have been duly deposited to the credit of the appropriate accounts established under or in accordance with the terms of the Indenture and the Accounts Control Agreement .
(k) Payment of Fees and Expenses . The Administrative Agent shall have received: (i) all fees and other amounts due and payable on or prior to the Initial Closing Date, including, to the extent invoiced, reimbursement or payment of all out -of-pocket expenses required to be reimbursed or pa id under the applicable Fee Letter (or evidence that such fees will be paid with the proceeds of the Initial Series 2024A Bonds issued on the Initial Closing Date); and (ii) evidence of payment or reimbursement of all other fees and expenses (including the legal fees and expenses of the Administrative Agent’s special counsel) incurred in connection with the transactions contemplated by the Financing Documents and due on the Initial Closing Date (or evidence that such fees will be paid with the proceeds of the Initial Series 2024A Bonds issued on the Initial Closing Date). (l) Monthly Draw Schedule . The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, the applicable Monthly Draw Schedule with respect to the Initial Available Commitment relating to the Parking/Signage portion of the Project. (m) Sufficiency of Base Rental Payments . The Administrative Agent shall have received evidence satisfactory to it that the Base Rental Payments to be paid under the Lease are sufficient to pay the principal installments of and interest on the Initial Series 2024A Bonds. (n) Title Insurance. The Administrative Agent shall have received a copy of the title insurance policy required under Section 5.06 ( Title Insurance ) of the Lease Agreement (or an irrevocable commitment to issue such title insurance policy), which title insurance policy shall be in form and substance satisfactory to the Administrative Agent. (o) Redemption of Series 2003 Bonds . The Administrative Agent shall have received evidence satisfactory to it that the $42,600,000 Anaheim Public Financing Authority Taxable Lease
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Revenue Bonds (Anaheim Arena Financing Project) 2003 Series A (the “ Series 2003 Bonds”), have been redeemed.
(p) No Bond Rating; DTC; Offering Document . The Initial Series 2024A Bonds shall not be (i) assigned a separate rating by any Rating Agenc y, (ii) registered with The Depositary Trust Company or any other securities depository, (iii) issued pursuant to any type of offering document or official statement, or (iv) purchased pursuant to a private placement by a registered broker -dealer. (q) Patriot Act; Anti- Money Laundering Laws, Etc . At least ten (10) days prior to the Initial Closing Date , the Administrative Agen t shall have received all documentation and other information relating to the Authority, the City, the Manager, TeamCo, the Trustee, the Accounts Bank and any other Person as the Administrative Agent or any Purchaser (through the Administrative Agent) request in order to comply with applicable “know your customer” and anti -money laundering rules and regulations, including Anti -Corruption Laws, Sanctions and the Patriot Act . (r) Creation and Perfection of First Priority Lien . The Administrative Agent shall have received evidence satisfactory to it of the compliance by the Authority and the City of its respective obligations under the Financing Document s which is necessary to create, in favor of the Trustee ( for the benefit of the Owners of the Bonds, including the Series 2024A Bondholders ) a valid and perfected first priority Lien in and to the Collatera l.
(s) Written Request No. 1 for Disbursements from Costs of Issuance Account. The Administrative Agent shall have received a copy of the Written Request No. 1 for Disbursements from Costs of Issuance Account signed by an Authorized Officer of the City and submitted to the Trustee pursuant to Section 3.02 ( Costs of Issuance Account ) of the Master Indenture relating to the costs of issuance for the In itial Series 2024A Bonds.
(t) Report of Proposed Debt Issuance . The Administrative Agent shall have received a copy of the Acknowledgement of Receipt of Report of Proposed Debt Issuance and Notice of Final Sale from the California Debt and Investment Advisory Commission with respect to the Series 2024A Bonds.
(u) Conditions Precedent to Closing in Covenant Agreement. All conditions precedent set forth in Section 2 ( Conditions Precedent to Closing) of th e Covenant Agreement shall have been satisfied by the Mana ger.
(v) Flow of Funds Memorandum. The Manager s hall have issued to the Trustee (with copies to the Authority, the Trustee and the Administrative Agent), a flow of funds instructions , dated the Initial Closing Date (in form and substanc e satisfactory to the Trustee and the Administrative Agent), setting forth (i) the distribution and application of the proceeds of the Initial Series 2024A Bonds to be purchased at the Initial Closing Date , (ii) the name and address of the transferee bank(s), (iii) the transferee bank(s) ABA number/Swift Code/IBAN, as applicable, and (iv) the account name(s) and number(s) into which the proceeds of the Initial Series 2024A Bonds are to be deposited. (w) Other Matters. All other legal matters pertaining to the execution and delivery of this Agreement and the other Financing Documents shall be satisfactory to the Administrative Agent and its counsel, and the Administrative Agent shall have received such other statements, certificates, agreements, documents and information with respect to the Authority, the City, the Trustee, the Manager, TeamCo and the other parties to the Financing Documents and matters contemplated by this
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Agreement as the Administrative Agent or the Required Purchasers (through the Administrative Agent) may reasonably request .
Section 4.02. Conditions Precedent t o Purchases. The obligation of each Purchaser to make a Purchase on each applicable Date of Purchase (including, in the case of the Initial Purchase, on the Initial Closing Date) is subject to the satisfaction of the following conditions :
(a) Representations and Warranties . (i) The representations and warranties of the Authority set forth in Article V ( Representations and Warranties of the Authority ) and in each other Authority Document, (ii) the representations and warranties of the City set forth in Article VI (Representations and Warranties of the City ) and in each other City Document, and (iii) the representations and warranties of the Manager set forth in the Manager Documents, shall, in each case, be true and correct in all material respe cts on such Date of Purchase except to the extent any such representations and warranties (A) expressly relates to an earlier date, in which case they shall be true and correct as of such earlier date, or (B) are qualified by a Material Adverse Effect or other materiality, in which case they shall be true and correct in all respects. (b) Performance; No Default . The Authority and the City shall have performed and complied with all agreements and conditions contained in this Agreement and each other Financing Document to which it is a party required to be performed or complied with by it prior to or on such Date of Purchase. No Default or Event of Default shall have occurred and be continuing on such Date of Purchase.
(c) Request for Purchase . The Administrative Agent shall have received a Request for Purchase as required under, and in strict conformity with, Section 2.01( c) (Requests for Purchase ), together with evidence satisfactory t o the Administrative Agent that each of the conditions to construction draws set forth in Section 2.1(a) ( Conditions to each Construction Draw ) o f the Construction Draw Agreement have been satisfied.
(d) Use of Proceeds of Series 2024A Bonds. The Administrative Agent shall have received evidence satisfactory to it of the Authority’ s, the City’s and the Manager’s intended use of proceeds of the related Purchase in accordance with Section 5.07 and Section 6.07 ( Use of Proceeds of Series 2024A Bonds ) and any other information regarding the same as the Administrative Agent may reasonably request (including that the proceeds of the related Purchase deposited in the Series 2024A Construction Subaccount will be applied and disbursed in accordance with the terms of the Construction Draw Agreement ).
(e) Funding of Reserve Accounts. To the extent applicable, the Administrative Agent shall have received satisfactory evidence that ( x) the Series 2024A Debt Service Reserve Account is fully funded in an amount at least equal to the Series 2024A Debt Service Reserve Requirement, and (y) the Series 2024A Work Stoppage Reserve Account is fully funded in an amount at least equal to the Series 2024A Work Stoppage Reserve Requirement.
(f) Payment of Fees and Expenses . On or prior to such Date of Purchase, (i) the Administrative Agent and the Purchasers shall have received all fees and other amounts due and payable on or prior to such Date of Purchase (or evidence that such fees will be paid with the proceeds of the Purchase made on such Date of Purchase), including, to the extent invoiced, reimbursement or payment of all out -of-pocket expenses required to be reimbursed or paid under any Financing Document (including the legal fees and expenses of the Administrative Agent’s special counsel); and
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(ii) the Administrative Agent s hall have received payment of the fees and other amounts due under t he applicable Fee Letter.
(g) Project Cost Overruns . In the event that the applicable Project Costs set forth in the applicable Construction Budget exceed the amount of proceeds available from the applicable Series 2024A Bonds (a “Cost Overrun”), the Administrative Agent shall have received satisfactory evidence that the Manager has funded the Series 2024A Construction Subaccount in immediately available funds from the proceeds of a Debt Service Loan, which Debt Service Loan shall be applied to pay any Cost Overrun prior to any additional funds being drawn under the applicable Series 2024A Bonds. (h) No Material Adverse Effect . No event, act, condition or occurrence of whatever nature shall have occurred that would result in a Material Adverse Effect. (i) No Termination of C ommitment. T he Commitment and the obligation of each Purchaser to make a Purchase hereunder shall not have terminated pursuant to Section 9.02 (Consequences of an Event of Default ) o r pursuant to Section 2.06 ( Permanent Reduction and Termination of Commitment ).
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE AUTHORITY
The Authority makes the following representations and warranties to each Series 2024A Bondholder:
Section 5.01. Existence; Authorization and Validity .
(a) The Authority is, and will be on the applicable Closing Date , a joint powers agency of the State of California organized and operating pursuant to the laws of the State of California with the full power and authority to issue the Series 2024A Bonds pursuant to the Act, to enter into, execute, deliver and perform its duties and obligations under the Series 2024A Bonds , the Indenture, the Assignment Agreement , the Ground Lease, the Lease Agreement , the Recognition, Non-Disturbance and Attornment Agreement , this Agreement , and the Authority Direction Letter (collectively, the “Authority Documents ”) and, when executed and delivered by the respective parties thereto, the Authority Documents will constitute the legal, valid and binding obligations of the Authority in accordance with their respective terms.
(b) By all necessary official action of the Authority prior to or concurrently with the applicable Closing Date, the Authority has duly authorized and approved the execution and delivery of, and the performance by the Authority of the obligations on its part contained in, the Authority Documents and the consummation by it of all other transactions contemplated by the Authority Documents.
(c) None of the Authority’s proceedings or authority for the issuance, execution and delivery of the Series 2024A Bonds, or the execution and delivery of the Authority Documents, or the adoption of the resolution or resolutions of the governing body of the Authority authorizing the issuance, sale, execution and delivery of the Series 2024A Bonds and the Authority Documents, has been repealed, modified, amended, revoked or rescinded.
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(d) Any certificate signed by any A uthorized Officer of the Authority, and delivered to the Purchasers in connection with the delivery of the Series 2024A Bonds and the Authority Documents, shall be deemed a representation and warranty by the Authority to the Series 2024A Bondholders as to the statements made therein.
Section 5.02. Enforceability.
(a) The Authority will deliver the duly executed Series 2024A Bonds and the Authority Documents on the applicable Closing Date and, when executed and delivered, the Series 2024A Bonds and the Authority Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the Authority enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, m oratorium or similar laws or equitable principles relating to or affecting creditors’ rights generall y. Each of the Authority Documents is in full force and effect. (b) When delivered by the Authority in accordance with the provisions of this Agreement and the Indenture, the Series 2024A Bonds will have been duly authorized, executed and delivered and will constitute the legal, valid and binding special obligations of the Authority in conformity with, and entitled to the benefit and security of, the Indenture and the Assignment Agreement .
Section 5.03. Compliance with Laws and Contracts ; No Conflict. (a) The Authority is not in breach of or default under any applicable constitutional provision, law or administrative regulation to which it is subject or any applicable judgment or decree or any loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the Authority is a party or to which the Authority or any of its property or assets is otherwise subject, and no event has occurred and is continuing which with the passage of time or the giving of notice, or both, would constitute such a default or event of default in any material respect under any such instrument which would affect its ability to perform under the Authority Documents; and the issuance of the Series 2024A Bonds and the execution and delivery of the Authority Documents and compliance with the provisions on the Authority’s part contained herein and therein, will not in any material respect conflict with or constitute a breach of or default under any law, admi nistrative regulation, judgment, decree, loan agreement, in denture, bond, note, resolution, agreement or other instrument to which the Authority is a party or is otherwise subject, nor will any such execution, delivery, adoption or compliance result in the creation or imposition of any lien, charge or other securi ty interest or encumbrance of any nature whatsoever upon any of the properties or assets of the Authority under the terms of any such law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument, except as provided in the Collateral Documents . (b) At the date hereof and as o f the applicable Closing Date , the Authority will be in compliance with the covenants and agreements contained in the Authority Documents, and no event of default and no event has occurred and is continuing which, with the passage of time or giving of notice, or both, would constitute an event of default thereunder shall have occurred and be continuing that would materially adversely affect the due performance by the Authority of its obligations under the Authority Documents.
Section 5.04. No Litigation. There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, Governmental Authority, public board or body, pending or, to the best knowledge of the Authority after reasonable investigation, threatened against the Authority
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in any material respect affecting the existence of the Authority or the titles of its officers to their respective offices or affecting or seeking to prohibit, restrain or enjoin the issuance or delivery of the Series 2024A Bonds or contesting or affecting, as to the Authority, the validity or enforceability of the Series 2024A Bonds or the Authority Documents or contesting the powers of the Authority or its authority to enter into, adopt or perform its obligations under any of the foregoing, wherein an unfavorable decision, ruling or finding would materially adversely affect the validity or enforceability of the Authority Documents.
Section 5.05. No Event of Default. No Event of Default or Default relating to or affecting the Authority has occurred and is continuing.
Section 5.06. Regulatory Approvals . (a) All authorizations , approvals, licenses, permits, consents and orders of any Governmental A uthority, legislative body, board, agency or commission having jurisdiction of the matter which are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by, the Authority of its obligations in connection with the issuance of the Series 2024A Bonds under the Indenture have been duly obtained; and (b) all authorizations, approvals, licenses, permits, consents and orders of any Governmental Author ity, legislative body, board, agency or commission having jurisdiction of the matter which are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by, the Authority of its obligations under the Series 2024A Bonds and the Authority Documents have been duly obtained.
Section 5.07. Use of Proceeds of Series 2024A Bonds. The Authority will apply, or cause the application of, the proceeds of the applicable Series 2024A Bonds as follows: (a) to deposit into the Series 2024A Construction Subaccount for use by the Manager (on behalf of the City) to pay or reimburse the applicable Project Costs, in each case subject to the applicable Construction Budget and review and sign- off by the Construction Monitor in accordance with the terms of the Construction Draw Agreement; ( b) to pay fees and expenses incurred in connection with the issuance and delivery of the applicable Series 2024A Bonds (including, without limitation, the fees due under the applicable Fee Letter and any fees and expenses incurred in connection with the making or processing of any Purchase); and (c) solely with respect to the Initial Series 2024A Bonds , to fund interest and fees due to the applicable Series 2024A Bondholders in an aggregate amount not to exceed $14.5 million (the “Financing Costs Sublimit ”) to the extent there are insufficient funds in the Operating Account to pay such interest and fees at such time and solely until the later of (i) the completion of the Parking/Signage portion of the Project or (ii) the period of three (3) years from the last day of the month in which the Initial Closing Date occurs if extended at the option of the Manager, exercised by written notice to the Administrative Agen t prior to the second anniversary of the Initial Closing Date (each of the foregoing, a “ Financing Costs Sublimit Expiration Date ”); provided, however, that if any portion of the Financing Costs Sublimit remains undrawn on the Financing Costs Sublimit Expiration Date (the “ Undrawn Financing Costs Sublimit ”), such Undrawn Financing Costs Sublimit shall cease to be available to be drawn and the Initial Available Commitment shall be reduced by such Undrawn Financing Costs Sublimi t.
Section 5.08. Representations in Authority Documents. The Authority makes to each Series 2024A Bondholder each of the representations and warranties as were made by it in each of the Authority Documents, which representations and warranties, together with the related definitions of terms contained therein, are hereby incorporated by reference with the same force and effect as if each and every such representation and warranty and definition were set fort h herein in its entirety.
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Section 5.09. Correct Information . No fact is known t o the Authority that materially adversely affects the security for any of the Series 2024A Bonds, or the ability of the Authority to repay when due the obligations of the Authority under this Agreement and the Authority Documents that has not been set forth in the documents referred to in this Section 5.09 or in such information, reports, papers and data or otherwise disclosed in writing to the Series 2024A Bondholders; provided, however, that no representation is made by the Authority as to the financial condition of the Manager or the ability of the Manager to perform its obligation s under the Manager Documents to which it is a party.
Section 5.10. No Proposed Legal Changes. There is no amendment, or, to the knowledge of the Authority, proposed amendments certified for placement on a statewide ballot, to the Act, the Constitution of the State of California o r any published administrative interpretation of the Act or the Constitution of the State of California or any law or any legislation that has passed either house of the legislatures of the State of California , or any published judicial decision interpreting any of the foregoing, in each case relating to the transactions contemplated by the Authority Documents , the effect of which could reasonably be expected to have a Material Adverse Effect.
Section 5.11. The Trustee. U.S. Bank Trust Company, National Association (or a successor or assign appointed in accordance with the terms of the Indenture) is the duly appointed and acting Trustee.
Section 5.12. No Sovereign Immunity. The Authority is not immune from suit or other legal proceedings, nor to any judgment rendered in connection therewith, instituted to enforce the terms of the Series 2024A Bonds, this Agreement, or the other Authority D ocuments.
Section 5.13. Security.
(a) The Indenture creates in favor of the Trustee ( for the benefit of the Owners of the Bonds, including the Series 2024A Bondholders ) a valid first priority pledge of certain accounts held under the Indenture (except for the Series 2024A Debt Service Reserve Account and the Series 2024A Work Stoppage Reserve Account which are held by the Trustee solely for the benefit of the Series 2024A Bondholders) and all such money in the pledged a ccounts shall not be pledged to any other Debt of the Authority.
(b) The Assignment Agreement assigns and transfers to the Trustee ( for the benefit of the Owners of the Bonds , including the Series 2024A Bondholders ) all of the Authority’s right, title and interest in and to the Ground Lease and the Lease Agreement (including, without limitation, its right to receive the Lease Revenues (including the Base Rental Payments) to be paid by the City under and pursuant to the Lease Agreement), except that the Authority will retain its obligations under the Lease Agreement and the Ground Lease, its rights to indemnification, to give approvals and consents under the Lease Agreement and the Ground Lease and to payment or reimbursement of its reasonable costs and expenses under the Leas e Agreement.
(c) The Indenture does not permit the issuance of Additional Bonds s ecured by the Lease Revenues to rank senior to the Series 2024A Bonds. No filing, registering, or recording of the Indenture or the Assignment Agreement or any other instrument is required to establish the pledge of or to perfect, protect or maintain the L ien on the money in the pledged a ccounts, the Lease Revenues, or any other funds and accounts under the Indenture and the Accounts Control Agreement , except for the recording of the Assignment Agreement .
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Section 5.14. Margin Regulations . The Authority is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or carrying Margin Stock, or extending credit for the purpose of purchasing or carrying Margin Stock, and no part of the proc eeds of any Series 2024A Bonds will be used to buy or carry any Margin Stock. Following the application of the proceeds of each Series 2024A Bonds, not more than 25% of the value of the assets will be Margin Stock.
Section 5.15. Solvency. The Authority is solvent and able to pay its debts as they become due.
Section 5.16. Investment Company Act Status. The Authority is not an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.
Section 5.17. Anti-Corruption Laws and Sanctions .
(a) The Authority has implemented and maintains in effect policies and procedures designed to ensure compliance by the Authority and its directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions .
(b) None of (i) the Authority, any of its directors, officers or employees, or (ii) to the knowledge of the Authority, any agent of the Authority that will act in any capacity in connection with or benefit from the Series 2024A Bonds or any other Authority Document, is a Sanctioned Person. (c) No Purchase, use of the proceeds of the Series 2024A Bonds or any other transaction contemplated by this Agreement will violate any Anti- Corruption Laws or applicable Sanctions.
Section 5.18. Usury. None of the Authority D ocuments or the Series 2024A Bonds provide for any payments that would violate any Applicable Law regarding permissible maximum rates of interest.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE CITY
The City makes the following representations and warranties to each Series 2024A Bondholder:
Section 6.01. Existence; Authorization and Validity.
(a) The City is, and will be on the applicable Closing Date , a charter city, and has all necessary power and authority under its charter and the Municipal Code of the City to enter into, execute, deliver and perform its duties and obligations under the Indenture , the Site Leases, the Ground Lease, the Lease Agreement , the Recognition, Non- Disturbance and Attornment Agreement , the Management Agreement , the Recognition and Acknowledgment Agreement , and this Agreement (collectively, the “ City Documents ”) and, when executed and delivered by the respective parties thereto, the City Documents will constitute the legal, valid and binding obligations of the City in accordance with their respective terms .
(b) By all necessary official action of the City prior to or concurrently wit h the applicable Closing Date , the City has duly authorized and approved the execution and delivery of, and the
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performance by the City of the obligations on its part contained in, the City Documents and the consummation by it of all other transactions contemplated by the City Documents . (c) None of the City’s proceedings or authority for the execution and delivery of the City Documents, or the adoption of the resolution or resolutions of the City Council of the City approving the execution and delivery of the Series 2024A Bonds and authorizing the execution and delivery of the City Documents, has been repealed, modified, amended, revoked or rescinded. (d) Any certificate signed by any Authorized Officer of the City, and delivered to the Purchasers in connection with the delivery of the Series 2024A Bonds and the City Documents, shall be deemed a representation and warranty by the City to the Series 2024A Bondholders as to the statements made therein.
Section 6.02. Enforceability. The City will deliver the duly executed City Documents on the applicable Closing Date and, when executed and delivered, the City Documents, assuming due authorization, execution and delivery by the other respective parties thereto, will constitute the legally valid and binding obligations of the City enforceable in accordance with their res pective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting creditors’ rights generally.
Section 6.03. Compliance with Laws and Contracts ; No Conflict. (a) The City is not in any breach of or default under any applicable constitutional provision, law or administrative regulation to which it is subject or any applicable judgment or decree or any loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the City is a party or to which the City or any of its property or assets is otherwise subject, and no event has occurred and is continuing which with the passage of time or the giving of notice, or both, would constitute such a de fault or event of default in any material respect under any such instrument which would affect its ability to perform under the City Documents ; and the issuance of the Series 2024A Bonds and the execution and delivery of the City Documents and compliance with the provisions on the City’s part contained herein and therein, will not in any material respect conflict with or constitute a breach of or default under any law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the City is a party or is otherwise subject, nor will any such execution, delivery, adoption or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the properties or assets of the City under the terms of any such law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument, except as provided in the Collateral Documents. (b) At the date hereof and as of the applicable Closing Date, the City will be in compliance with the covenants and agreements contained in the City Documents, and no event of default shall have occurred and be continuing and no event has occurred and is continuing which, with the passage of time or giving of notic e, or both, would constitute an event of default thereunder .
Section 6.04. No Litigation. There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, Governmental Authority, public board or body, pending or, to the best knowledge of the City after reasonable investigation, threatened against the City in any material respect affecting the existence of the City or the titles of its officers to their respective offices or affecting or seeking to prohibit, restrain or enjoin the issuance or delivery of the Series 2024A Bonds
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or contesting or affecting, as to the City, the validity or enforceability of the Series 2024A Bonds or the City Documents or contesting the powers of the City or its authority to enter into, adopt or perform its obligations under any of the foregoing, wherein an unfavorable decision, ruling or finding would materially adversely affect the validity or enforceability of the City Documents .
Section 6.05. No Event of Default. No Event of Default or Default relating to or affecting the City has occurred and is continuing.
Section 6.06. Regulatory Approvals . (a) All authorizations, approvals, licenses, permits, consents and orders of any Governmental A uthority, legislative body, board, agency or commission having jurisdiction of the matter which are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by, the City of its obligations in connection with the issuance of the Series 2024A Bonds under the Indenture have been duly obtained; and (b) all authorizations, approvals, licenses, permits, consents and orders of any Governmental Authority, legislative body, board, agency or commission having jurisdiction of the matter which are required for the due authorization by, or which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by, the City of its obligations under the City Documents have been duly obtained.
Section 6.07. Use of Proceeds of Series 2024A Bonds. The City will apply, or will cause the Manager to apply, the proceeds of the applicable Series 2024A Bonds it receives from the Authority and deposited into the Series 2024A Construction Subaccount (a) to pay or reimburse the applicable Project Costs, in each case subject to the applicable Construction Budget and review and sign- off by the Construction Monitor in accordance with the terms of the Construction Draw Agreement; (b) to pay fees and expenses incurred in connection with the making or processing of any Purchase and/or any Construction Draw (as defined in the C onstruction Draw Agreement) ; and (c) solely with respect to the Initial Series 2024A Bonds , to fund interest and fees due to the applicable Series 2024A Bondholders in an aggregate amount not to exceed the Financing Costs Sublimit to the extent there are insufficient funds in the Operating Account to pay such interest and fees at such time and solely until the Financing Costs Sublimit Expiration Date; provided, however, that if any Undrawn Financing Costs Sublimit remains available on the Financing Costs Sublimit Expiration Date, such Undrawn Financing Costs Sublimit shall cease to be available to be drawn and the Initial Available Commitment shall be reduced by such Undrawn Financing Costs Sublimit .
Section 6.08. Representations in City Documents. The City makes to each Series 2024A Bondholder each of the representations and warranties as were made by it in each of the City Documents, which representations and warranties, together with the related definitions of terms contained therein, are hereby incorporated by reference with the same force and effect as if each and every such representation and warranty and definition were set for th herein in its entirety.
Section 6.09. Correct Information . No fact is known t o the City that materially adversely affects the security for any of the Series 2024A Bonds, or the ability of the City to repay when due the obligations of the City under this Agreement and the City Documents that has not been set forth in the documents referred to in this Section 6. 09 or in such information, reports, papers and data or otherwise disclosed in writing to the Series 2024A Bondholders; provided, however, that no representation is made by the City a s to the financial condition of the Manager or the ability of the Manager to perform its obligations under the Manager Documents to which it is a party.
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Section 6.10. No Proposed Legal Changes. There is no amendment, or, to the knowledge of the City, proposed amendments certified for placement on a statewide ballot, to the Act, the Constitution of the State of California or any published administrative interpretation of the Act or the Constitution of the State of California or any law or any legislat ion that has passed either house of the legislatures of the State of California, or any published judicial decision interpreting any of the foregoing, in each case relating to the transactions contemplated by the City Documents, the effect of which could reasonably be expected to have a Material Adverse Effect.
Section 6.11. No Sovereign Immunity. The City is not immune from suit or other legal proceedings, nor to any judgment rendered in connection therewith, instituted to enforce the terms of the Series 2024A Bonds, this Agreement, or the other City Document s.
Section 6.12. Security. The Lease Agreement creates in favor of the Trustee, as assignee of the Authority ( for the benefit of the Owners of the Bonds , including the Series 2024A Bondholders), a first lien on and security interest in (i) the Lease Revenues (including the Base Rental Payments) and (ii) the Account Collateral, and all such Lease Revenues and money in the Account Collateral shall not be pledged to any other Debt of the City.
Section 6.13. Margin Regulations . The City is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or carrying Margin Stock, or extending credit for the purpose of purchasing or carrying Margin Stock, and no part of the proceeds of any Series 2024A Bonds will be used to buy or carry any Margin Stock. Following the application of the proceeds of eac h Series 2024A Bonds, not more than 25% of the value of the assets will be Margin Stock.
Section 6.14. Solvency. The City is solvent and able to pay its debts as they become due.
Section 6.15. Taxes. The City has filed all f ederal, state and other material tax returns and reports required to be filed, and has paid all federal, state and other material taxes, assessments, fees and other governmental charges levied or imposed upon the City or its p roperties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. There is no proposed tax assessment against the City that would, if made, have a Material Adverse Effect.
Section 6.16. Investment Company Act Status. The City is not an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.
Section 6.17. Anti-Corruption Laws and Sanctions .
(a) The City has implemented and maintains in effect policies and procedures designed to ensure compliance by the City and its Council members, directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.
(b) None of (i) the City, any of its directors, officers or employees, or (ii) to the knowledge of the City, any agent of the City that will act in any capacity in connection with or benefit from the Series 2024A Bonds or any other City Document, is a Sanctioned Person.
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(c) No use of the proceeds of the Series 2024A Bonds or any other transaction contemplated by this Agreement will violate any Anti- Corruption Laws or applicable Sanctions.
Section 6.18. Usury. None of the City D ocuments or the Series 2024A Bonds provide for any payments that would violate any Applicable Law regarding permissible maximum rates of interest.
ARTICLE VII
COVENANTS OF THE AUTHORITY
The Authority covenants and agrees with each Purchaser and Series 2024A Bondholder, until the full and final payment and satisfaction of all of the Obligations, that :
Section 7.01. Notice of Default . Immediately after the Authority shall have obtained knowledge of the occurrence of an Event of Default or Default, it shall provide to the Administrative Agent the written statement of an Authorized Officer of the Authority setting forth the details of each such Event of Default or Default and the action which the Authority proposes to take with respect thereto.
Section 7.02. Compliance With Laws . The Authority shall comply with all Applicable Laws (including the Act) applicable to the transactions contemplated by the Authority Documents and with all final orders, writs, judgments, injunctions, decrees or awards to which it may be subject; provided, however, that the Authority may contest the validity or application thereof and appeal or otherwise seek relief therefrom, and exercise any and all of the rights and remedies which it may have with regard thereto, so long as such acts do not affect the Authority’s power and authority to execute this Agreement, to perform its obligations and pay all amounts payable by it hereunder, or to execute and deliver the Authority D ocuments and to perform its obligations thereunder.
Section 7.03. Related Obligations . The Authority shall use its best efforts to cause the Trustee at all times to comply with the terms of the Financing Documents to which it is a party.
Section 7.04. Certain Notices. The Authority shall furnish to the Administrative Agen t the following:
(a) Prompt written notice of any action, suit or proceeding known to it at law or in equity or by or before any Governmental Authority which, if adversely determined, could reasonably be expected to have a Material Adverse Effect.
(b) Prompt written notice of ( i) any material dispute which may exist in connection with any transaction contemplated under this Agreement and the other Authority Documents, or ( ii) any matter or event which may result in a material adverse change in the Authority’s operations. (c) At the request of the Administrative Agent or any Series 2024A Bondholder (through the Administrative Agent) , copies of each request made by, and other information as and when provided to, the Trustee.
(d) Within thirty (30) days of the issuance of any Additional Bonds of the Authority, copies of any disclosure documents distributed in connection therewith; which copies may be provided by notice of posting online at the Authority’s website, Municipal Securities Rule Making Board’s
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Electronic Municipal Market Access (EMMA) website, or other publicly accessible website designated by the Authority.
(e) (i) Prompt written notice of the failure by the Trustee to perform any of its obligations under the Indenture, (ii) prompt written notice of any proposed termination of this Agreement, and ( iii) such further information with respect to the Authority as the Administrative Agent or any Series 2024A Bondholder (through the Administrative Agent) may reasonably request from time to time. (f) Promptly after the receipt or giving thereof, copies of all notices of resignation by or removal of the Trustee which are received or given by the Authority. (g) Promptly after the adoption thereof, copies of any amendments of or supplements to any of the Authority D ocuments.
(h) Written notice of any change in the identity of the Trustee upon becoming aware of the same.
Section 7.05. Trustee; Appointment of Successor Trustee. (a) The Authority shall at all times maintain a Trustee under the Indenture . (b) The Authority shall not appoint a successor Trustee except in accordance with the terms of the Indenture .
Section 7.06. Liens, Etc. The Authority shall not create any Lien upon or with respect to its right, title and interest in and to the Ground Lease and the Lease Agreement or its interest in the Lease Revenues (including, without limitation, any of the funds or accounts created under the Indenture and the Accounts Control Agreement ) except for Permitted Liens .
Section 7.07. Maintenance of Approvals; Filings, Etc . The Authority shall at all times maintain, or cause to be maintained, in effect, renew and comply with all the terms and conditions of all consents, licenses, approvals and authorizations as may be necessary or appropriate under any Applicable Law relating to the Authority Documents .
Section 7.08. Payment of Other Liabilities. The Authority will pay, or cause to be paid, or otherwise satisfied, all of its other material indebtedness and obligations promptly other than those (i) whose validity is being contested in good faith in appropriate proceedings and for which adequate reserves have been established in accordance with GAAP or (ii) where failure to pay the same could not reasonably be expected to have a M aterial Adverse Effect .
Section 7.09. Further Assurances . The Authority shall, upon the request of the Administrative Agent or any Series 2024A Bondholder (through the Administrative Agent) , from time to time, execute and deliver such documents and instruments and take such further action as may be reasonably necessary to effectuate the provisions of this Agreement and the Authority D ocuments.
Except to the extent it is exempt therefrom, the Authority will pay or cause to be paid, solely from the Account Collateral and the Lease Revenues available therefor, all expenses incident to the preparation, execution and acknowledgment of such instruments of further assurance, and all federal or state fees and other similar fees, duties, imposts, assessments and charges arising out of or in connection with
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the execution and delivery of this Agreement, the Authority Documents and such instruments of further assurance.
Section 7.10. Maintenance of Existence; Mergers or Sale s. Subject to any legislation which may be enacted into law in the State of California o r the Congress of the United States subsequent to the Initial Closing Date, the Authority (a) will preserve and maintain its existence, rights (charter and statutory), franchises and licenses, if the failure to preserve and maintain any of the foregoing could reasonably be expected to have a Material Adverse Effect, and ( b) will not, without the prior written consent of the Required Purchasers , ( i) merge or consolidate with any other organization nor ( ii) sell, lease or transfer all or substantially all of the Property to any Person except as otherwise expressly provided herei n.
Section 7.11. Disclosure by Purchasers . The Authority agrees to permit each P urchaser to disclose any information received by such Purchaser in connection herewith to any Participant or assignee of such Purchaser and auditors or governmental officials conducting a review of such Purchaser’s books and records.
Section 7.12. Federal Reserve Regulations .
(a) No part of the proceeds of any Series 2024A Bonds will be used, whether directly or indirectly, for any purpose that entails a violation of any of the regulations of the Federal Reserve Board, including Regulations T, U and X.
(b) The Authority will not request any Purchase of Series 2024A Bonds, and the Authority shall not use, and shall procure that its directors, officers, employees and agents shall not use, the proceeds of any Series 2024A Bonds (i) i n furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti -Corruption Laws, (ii) f or the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, except to the extent permitted for a Person required to comply with Sanctions, or (iii) in any manner that would result in the violation of any Sanctions applicable to any P arty hereto.
Section 7.13. Issuance of Additional Bonds. The Authority shall not issue any Additional Bonds except in accordance with the terms of the Indenture .
Section 7.14. Waiver of Sovereign Immunity. The Authority hereby agrees not to assert the defense of any future right of sovereign immunity in any legal proceeding to enforce or collect upon the obligations of the Authority under this Agreement or the other Authority Documents or the transactions contemplated hereby and thereby.
Section 7.15. Authority Documents. The Authority shall not terminate, modify or amend or consent to any termination, modification, amendment or waiver in any material respect of any Authority Document without the prior written consent of the Administrative Agent.
Section 7.16. Sanctions Laws and Regulations .
(a) The Authority shall not knowingly, directly or indirectly, use the proceeds of the Series 2024A Bonds, or lend, contribute or otherwise make available such proceeds to any P erson (i) in violation of any Anti -Corruption Laws, ( ii) for the purpose of funding, financing or facilitating any
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activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (iii) in any other manner that w ould result in a violation of any Sanctions by any P arty hereto. (b) None of the funds or assets of the Authority that are used to pay any amount due pursuant to this Agreement or any other Authority Document shall constitute funds obtained from transactions with or relating to Sanctioned Persons or countries which are the subject of sanctions under any Sanctions laws and regulations.
(c) The Authority will maintain in effect policies and procedures designed to ensure compliance by the Authority and its directors, officers, employees and agents with Anti -Corruption Laws and applicable Sanctions.
(d) The Authority shall not knowingly use, or permit the use of, the proceeds of any Series 2024A Bond (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti -Corruption Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (iii) in any manner that would result in the violation of any Sanctions applicable to any Party hereto.
Section 7.17. Series 2024A Bond Ratings, Etc. The Authority shall not agree to the Series 2024A Bonds to be (a) assigned a separate rating by any Rating Agency, (b) registered with The Depositary Trust Company or any other securities depository, ( c) issued pursuant to any type of offering document or official statement, or ( d) purchased pursuant to a private placement by a registered broker -dealer.
Section 7.18. Use of Proceeds o f Series 2024A Bonds. The Authority shall use the proceeds of the Series 2024A Bonds solely in accordance with the terms of Section 5.07 ( Use of Proceeds of Series 2024A Bonds).
Section 7.19. Restriction on Investments i n Accounts. The Authority shall only invest the moneys in the a ccounts established under the Indenture in Permitted Investments.
Section 7.20. Notice of Inaccuracy of Authority Representations . If the Authority becomes aware that any representation or warranty made in Article V (Representations and Warranties of the Authority) was or has become false or inaccurate in any material respect when made, it will give prompt written notice thereof to the Manager.
ARTICLE VIII
COVENANTS OF THE CITY
The City covenants and agrees with each Purchaser and Series 2024A Bondholder, until the full and final payment and satisfaction of all of the Obligations, that:
Section 8.01. Notice of Default. Immediately after the City shall have obtained knowledge of the occurrence of an Event of Default or Default, it shall provide to th e Administrative Agen t the written statement of an Authorized Officer of the City s etting forth the details of each such Event of Default or Default and the action which the City proposes to take with respect thereto.
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Section 8.02. Compliance With Laws . The City shall comply with all Applicable L aws applicable to the transactions contemplated by the City Documents and with all final orders, writs, judgments, injunctions, decrees or awards to which it may be subject; provided, however, that the City may contest the validity or application thereof and appeal or otherwise seek relief therefrom, and exercise any and all of the rights and remedies which it may have with regard thereto, so long as such acts do not affect the City ’s power and authority to execute this Agr eement, to perform its obligations and pay all amounts payable by it hereunder, or to execute and deliver the City Documents and to perform its obligations thereunder.
Section 8.03. Related Obligations. The City shall use its best efforts to cause the Manager at all times to comply with the terms of the Financing Documents to which it is a party.
Section 8.04. Certain Notices . The City shall furnish to the Administrative Agen t the following:
(a) Prompt written notice of any action, suit or proceeding known to it at law or in equity or by or before any Governmental Authority which, if adversely determined, could reasonably be expected to have a Material Adverse Effect .
(b) Prompt written notice of any material dispute which may exist in connection with any transaction contemplated under this Agreement and the other City Documents. (c) At the request of the Administrative Agent or any Series 2024A Bondholder (through the Administrative Agent) , copies of each request made by, and other information as and when provided to, the Trustee or the Manager.
(d) (i) Prompt written notice of the failure by the Manager to perform any of its obligations under the Management Agreement, (ii) prompt written notice of any proposed termination of this Agreement, and ( iii) such further information with respect to the City as the Administrative Agent or any Series 2024A Bondholder (through the Administrative Agent) may reasonably request from time to time.
(e) Promptly after the receipt or giving thereof, copies of all notices of resignation by or removal of the Manager w hich are received or given by the City . (f) Promptly after the adoption thereof, copies of any amendments of or supplements to any of the City Documents.
Section 8.05. Manager; Appointment of Successor Manager . (a) The City shall at all times maintain a “Manager” under the Management Agreement.
(b) The City shall not appoint a successor Manager except in accordance with the terms of the Management Agreemen t and the Indenture .
Section 8.06. Liens, Etc. The City shall not create or suffer to exist any Lien upon or with respect to the Lease Revenues, including, without limitation, any of the funds or accounts created under the Indenture and the Accounts Control Agreement except for Permitted Liens .
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Section 8.07. Maintenance of Approvals; Filings, Etc . The City shall at all times maintain, or cause to be maintained, in effect, renew and comply with all the terms and conditions of all consents, licenses, approvals and authorizations as may be necessary or appropriate under any Applicable Law relating to the City Documents.
Section 8.08. Payment of Other Liabilities. The City will pay, or cause to be paid, or otherwise satisfied, all of its other material indebtedness and obligations promptl y other than those (i) whose validity is being contested in good faith in appropriate proceedings and for which adequate reserves have been established in accordance with GAAP or (ii) where failure to pay the same could not reasonably be expected to have a Material Adverse Effect .
Section 8.09. Further Assurances . The City shall, upon the request of the Administrative Agent or any Series 2024A Bondholder (through the Administrative Agent), from time to time , execute and deliver such documents and instruments and take such further action as may be reasonably necessary to effectuate the provisions of this Agreement and the City Documents. Except to the extent it is exempt therefrom, the City will pay or cause to be paid, solely from the Account Collateral and the Lease Revenues available therefor, all expenses incident to the preparation, execution and acknowledgment of such instruments of further assurance, and all federal or state fees and other similar fees, duties, imposts, assessments and charges arising out of or in connection with the execution and delivery of this Agreement, the City Documents and such instruments of further assurance.
Section 8.10. Maintenance of Existence; Mergers or Sale s. Subject to any legislation which may be enacted into law in the State of California or the Congress of the United States subsequent to the Initial Closing Date , the City (a) will preserve and maintain its existence, rights (charter and statutory), franchises and licenses, if the failure to preserve and maintain any of the foregoing could reasonably be expected to have a Material Adverse Effect, and (b) will not, without the prior written consent of the Required Purchasers , (i) merge or consolidate with any other organization nor (ii) sell, lease or transfer all or substantially all of the Property or the Arena to any Person except as otherwise expressly provided herein, or turn over the management or operation of the Property or the Arena to any Person who is not the Manager except as otherwise e xpressly provided i n the Management Agreement or any other Financing Document .
Section 8.11. Insurance. The City shall at all times maintain, or cause to be maintained by the Manager, insurance with respect t o the Property against such risks, in such amounts, with such companies and with such deductibles as provided in the Lease Agreement.
Section 8.12. Disclosure by Purchasers . The City agrees to permit each Purchaser to disclose any information received by such Purchaser in connection herewith to any Participant or assignee of such Purchaser and auditors or governmental officials conducting a review of such Purchaser’s books and records.
Section 8.13. Federal Reserve Regulations .
(a) No part of the proceeds of any Series 2024A Bonds will be used, whether directly or indirectly, for any purpose that entails a violation of any of the regulations of the Federal Reserve Board, including Regulations T, U and X.
(b) The City shall not use, and shall procure that its directors, officers, employees and agents shall not use, the proceeds of any Series 2024A Bonds (i) in furtherance of an offer, payment,
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promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti -Corruption Laws , (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, except to the extent permitted for a Person required to comply with Sanctions, or (iii) in any manner that would result in the violation of any Sanctions applicable to any Party hereto.
Section 8.14. Waiver of Sovereign Immunity . The City hereby agrees not to assert the defense of any future right of sovereign immunity in any legal proceeding to enforce or collect upon the obligations of the City under this Agreement or the other City Documents or the transactions contemplated hereby and thereby.
Section 8.15. City Documents. The City shall not terminate, modify or amend or consent to any termination, modification, amendment or waiver in any material respect of any City Document without the prior written consent of the Administrative Agent.
Section 8.16. Sanctions Laws and Regulations .
(a) The City shall not knowingly, directly or indirectly, use the proceeds of the Series 2024A Bonds, or lend, contribute or otherwise make available such proceeds to any Person (i) in violation of any Anti -Corruption Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (iii) in any other manner that would result in a violation of any Sanctions by any P arty hereto. (b) None of the funds or assets of the City that are used to pay any amount due pursuant to this Agreement or any other City Document shall constitute funds obtained from transactions with or relating to Sanctioned Persons or countries which are the subject of sanctions under any Sanctions laws and regulations.
(c) The City will maintain in effect policies and procedures designed to ensure compliance by the City and its directors, officers, employees and agents with Anti -Corruption Laws and applicable Sanctions.
(d) The City shall not knowingly use, or permit the use of, the proceeds of any Series 2024A Bond (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti -Corruption Laws, (ii) for the purpose of funding, financing or facilitating any a ctivities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (iii) in any manner that would result in the violation of any Sanctions applicable to any P arty hereto.
Section 8.17. Use of Proceeds of Series 2024A Bonds. The City shall use the proceeds of the Series 2024A Bonds solely in accordance with the terms of Section 6.07 ( Use of Proceeds of Series 2024A Bonds).
Section 8.18. Notice of Inaccuracy of City Representations . If the City becomes aware that any representation or warranty made in Articl e VI (Representations and Warranties of the City ) was or has become false or inaccurate in any material respect when made, it will give prompt written notice thereof to the Manager .
ARTICLE IX
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EVENTS OF DEFAULT AND REMEDIES
Section 9.01. Events of Default. The occurrence of any of the following events (whatever the reason for such event and whether voluntary, involuntary, or effected by operation of l aw) shall be an “ Event of Default ” hereunder, unless waived in writing by the Administrative Agent with the consent of the Required Purchasers :
(a) any principal of or interest on any Series 2024A Bonds shall not be paid when due, whether on any Principal Payment Date, Interest Payment Date, at maturity, upon redemption or otherwise;
(b) the Authority or the City shall fail to pay any Obligatio n (other than the obligation to pay the principal of or interest on the Series 2024A Bonds) when due; (c) any representation or warranty made by or on behalf of the Authority in this Agreement or in any other Authority Document or in any certificate or statement delivered hereunder or thereunder by or behalf of the Authority shall prove t o be incorrect or untrue in any material respect ( other than any representation or warranty which is qualified by a Material Adverse Effect or other materiality, in which case such representation or warranty shall prove t o be incorrect or untrue in any respect) when made or deemed to have been made or delivered ;
(d) any representation or warranty made by or on behalf of the City in this Agreement or in any other City Document or in any certificate or statement delivered hereunder or thereunder by or behalf of the City shall prove t o be incorrect or untrue in any material respect (other than any representation or warranty which is qualified by a Material Adverse Effect or other materiality, in which case such representation or warranty shall prove t o be incorrect or untrue in any respect) when made or deemed to have been made or delivere d;
(e) the Authority shall default in the due performance or observance of any of the covenants set forth in Section 7.01 ( Notice of Default), Section 7.05 ( Trustee; Appointment of Successor Trustee), Section 7.06 ( Liens, Etc. ), Section 7.10 ( Maintenance of Existence; Mergers or Sales), Section 7.12 ( Federal Reserve Regulations ), Section 7.13 ( Issuance of Additional Bonds ), Section 7.14 ( Waiver of Sovereign Immunity ), Section 7.15 ( Authority Documents ), Section 7. 16 (Sanctions Laws and Regulations ), Section 7. 17 (Series 2024A Bond Ratings, E tc.), Section 7.18 (Use of Proceeds o f Series 2024A Bonds), or Section 7. 19 (Restriction on Investments in Accounts ); (f) the City shall default in the due performance or observance of any of the covenants set forth in Section 8.01 (Notice of Default), Section 8.05 ( Manager; Appointment of Successor Manager), Section 8.06 ( Liens, Etc. ), Section 8.10 ( Maintenance of Existence; Mergers or Sales), Section 8.11 (Insurance), Section 8.13 ( Federal Reserve Regulations ), Section 8.14 ( Waiver of Sovereign Immunity), Section 8.15 ( City Documents), Section 8.16 ( Sanctions Laws and Regulations), or Section
8.17 (Use of Proceeds of Series 2024A Bonds);
(g) the Authority or the City shall default in the due performance or observance of any other term, covenant or agreement contained in this Agreement (other than those referred to in Sections 9.01(a) through (f) above) or in or any other Authority Document or City Document, as applicable, and such default shall remain unremedied for a period of thirty (30) days after the Authority or the City, as applicable, receiving written notice of such default from the Administrative Agent; provided that if, in the reasonable opinion of the Authority or the City (as applicable), the default stated
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in the notice can be corrected, but not within such 30- day period, such default shall not constitute an Event of Default hereunder if the Authority or the City (as applicable) shall commence to cure such default within said 30- day period and thereafter dil igently and in good faith shall cure such default within a reasonable period of time not to exceed ninety days (90 days) ; (h) the Authority or the City shall (i) have entered involuntarily against it an order for relief under the United States Bankruptcy Code, as amended, (ii) become insolvent or shall not pay, or be unable to pay, or admit in writing its inability to pay, its debts generally as they become due, (i ii) make an assignment for the benefit of creditors, (iv) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial part o f its property, (v) institute any proceeding seeking to have entered against it an order for relief under the United States Bankruptcy Code, as amended, to adjudicate it insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, marshalling of assets, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (vi) ta ke any corporate action in furtherance of any matter described in clauses ( i) through (v) above, or (vii ) fail to contest in good faith any appointment or proceeding described in Section 9.01( i) below;
(i) a custodian, receiver, trustee, examiner, liquidator or similar official shall be appointed for the Authority or the City or any substantial part of its property, or a proceeding described in Section
9.01(h)(v) shall be instituted against the Authority or the City and such proceeding continues undismissed or unstayed for a period of sixty (60) or more days ; (j) (i) a debt moratorium, debt restructuring, debt adjustment or comparable restriction is imposed on the repayment when due and payable of the principal of or interest on the Series 2024A Bonds or any Additional Bonds by the Authority or any Governmental Authority with appropriate jurisdiction or (ii) any Governmental Authority of competent jurisdiction shall declare a financial emergency or similar declaration with respect to the Authority or the City and shall appoint or designate, with respect to the Authority , a neutral evaluator, an emergency manager or an entity such as an organization, a board, a commission, an authority, an agency or any other similar body t o manage the affairs and operations of the Authority or the City; (k) (i) any material provision of this Agreement or any other Authority D ocument or City Document shall at any time for any reason cease to be valid and binding on the Authority or the City, as applicable, or shall be declared in a final non- appealable judgment by any court or other Governmental Authority with competent jurisdiction to be null and void, invalid, or unenforceable; (ii) the validity or enforceability of any material provision of this Agreement or any other Authority Document or City Document shall be contested by the Authority or the City, as applicable, or by any other Governmental Authority of competent jurisdiction; (l) dissolution or termination of the existence of the Authority or the City; (m) the Authority shall (i) default on the payment of the principal of or interest on the Series 2024A Bonds or any Additional Bonds , beyond the period of grace, if any, provided in the Indenture ; or (ii) default in the observance or performance of any agreement or condition relating to the Series 2024A Bonds or any Additional Bonds or contained in any instrument or agreement evidencing, securing or relating thereto, or any other default, event of default or similar event shall occur or
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condition exist, the effect of which default, event of default or similar event or condition is to permit (determined without regard to whether any notice is required) or cause the Series 2024A Bonds or any such Additional Bonds to become immediately due and payable in full as the result of the acceleration, mandatory redemption or mandatory tender of the Series 2024A Bonds or such Additional Bonds ; (n) the Manager or the Developer shall default in the due performance or observance of any term, covenant or agreement contained in any Manager Document to which it is a party beyond the period of grace, if any, provided in such Manager Document or an “Event of Default” (a s defined in the Covenant Agreement ) shall have occurred and be continuing; (o) any “Event of Default” under the Indentur e or any “event of default” under any other Financing Document (as defined respectively therein) shall have occurred and be continuing; (p) any Lease Revenues or Permitted Investments on deposit in, or otherwise to the credit of, any of the funds or accounts established under the Indenture and the Accounts Control Agreement shall become subject to any writ, judgment, warrant or attachment, execution or similar process which shall not have been vacated, discharged or stayed or appealed within sixty ( 60) days from the entry thereof;
(q) any Lien created by the Collateral Documents to secure any amount due under this Agreement or the Series 2024A Bonds shall fail to be fully enforceable with the priority required unde r the Collateral Documents, as determined by a final, non- appealable judgment; or (r) the Project shall fail to be substantially completed by the Scheduled Completion Date, subject to extension for a Force Majeure Event .
Section 9.02. Consequences of an Event of Default . If an Event of Default specified in Section 9.01 ( Events of Default) shall occur and be continuing, the Administrative Agent may with the consent of the Required Purchasers, and shall at the request of the Required Purchasers, take one or more of the following actions at any time and from time to time (regardless of wheth er the actions are taken at the same or different times ):
(a) by written notice to the Trustee , the Authority, the City and the Manager , declare the outstanding amount of the Obligations under this Agreement to be immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived, and an action therefor shall immediatel y accrue; (b) deliver a written notice to the Trustee, the Authority, the City and the Manager that an Event of Default has occurred and is continuing and direct the Trustee and the Authority, as applicable, to cause acceleration of the Series 2024A Bonds or take such other remedial action as is provided for in the Indenture;
(c) by written notice to the Trustee, the Authority, the City and the Manager, terminate the Commitment of the Purchaser s to purchase Series 2024A Bonds hereunder whereupon the Commitment of the Purchaser s to purchase Series 2024A Bonds hereunder shall be immediately terminated;
(d) either personally or by attorney or agent without bringing any action or proceeding, or by a receiver to be appointed by a court in any appropriate action or proceeding, take whatever action
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at law or in equity may appear necessary or desirable to collect the amounts due and payable under the Financing Documents or to enforce performance or observance of any obligation, agreement or covenant of the Authority, the City and/or the Manager under the Financing Documents, whether for specific performance of any agreement or covenant of the Authority, the City and/or the Manager or in aid of the execution of any power granted to the Administrative Agent and the Series 2024A Bondholders in the Financing Documents;
(e) exercise, or cause to be exercised, on behalf of itself and the Series 2024A Bondholders, any and all remedies as it and the Series 2024A Bondholders may have under the Financing Documents and as otherwise available at law and at equity; and (f) pursuant to the terms of the Indenture, direct the Trustee to take any and all actions necessary to implement any available remedies with respect to the Series 2024A Bonds under the Indenture and any other Financing Document.
Section 9.03. Application of Payments. Notwithstanding anything herein to the contrary, following the occurrence and during the continuance of an Event of Default, and notice thereof to the Trustee by the Administrative Agent, all payments received on account of the Obligations shall, subject to Section 2.12 ( Defaulting Purchasers), be applied by the Administrative Agent or the Trustee (at the direction of the Administrativ e Agent) as follows:
(i) first, to payment of that portion of the Obligations constituting fees, expenses, indemnities and other amounts payable to the Trustee pursuant to the Master Indenture; (ii) second, to payment of that portion of the Obligations constituting fees, expenses, indemnities and other amounts payable to the Administrative Agent hereunder (including fees and disbursements and other charges of counsel to the Administrative Agent payable under Article X ( Expenses and Indemnification) and amounts pursuant to Section 3.04(d) ( Fees) payable to the Administrative Agent in its capacity as such); (iii) third, to payment of that portion of the Obligations constituting fees, expenses, indemnities and other amounts payable to the Series 2024A Bondholders (including fees and disbursements and other charges of counsel to the Series 2024A Bondholders payable under Article X ( Expenses and Indemnification) arising under the Financing Documents, ratably among them in proportion to the respective amounts described in this clause (ii) payable to them;
(iv) fourth, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Series 2024A Bonds, ratably among the Series 2024A Bondholders in proportion to the respective amounts described in this clause (iii) payable to them; (v) fifth, to payment of that portion of the Obligations constituting unpaid principal of the Series 2024A Bonds, ratably among the Series 2024A Bondholders in proportion to the respective amounts described in this clause (iv) payable to them; (vi) sixth, to the payment in full of all other Obligations, in each case ratably among the Administrative Agent and the Series 2024A Bondholders based upon the respective aggregate amounts of all suc h Obligations owing to them in accordance with the respective amounts thereof then due and payable; and
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(vii) finally, the balance, if any, after a ll Obligations have been indefeasibly paid in full, to the Trustee for application in accordance with Section 7.09 ( Application of Amounts After Default) of the Indenture.
Section 9.04. Remedies Cumulative.
(a) To the extent permitted by, and subject to the mandatory requirements of, Applicable Law, each and every right, power and remedy herein specifically given to the Administrative Agent and the Series 2024A Bondholders in the Financing Documents shall be cumulative, concurrent and nonexclusive and shall be in addition to every other right, power and remedy herein specifically given or now or hereafter existing at law, in equity or by statute, and each and every right, power and remedy (whether specifically herein given or otherwise existing) may be exercised from time to time and as often and in such order as may be deemed expedient by the Administrative Agent and the Series 2024A Bondholders, and the exercise or the begi nning of the exercise of any power or remedy shall not be construed to be a waiver of the right to exercise at the same time or thereafter any other right, power or remedy.
(b) The rights and remedies of the Administrative Agent and the Series 2024A Bondholders specified herein are for the sole and exclusive benefit, use and protection of the Administrative Agent and the Series 2024A Bondholders, and the Administrative Agent and the Series 2024A Bondholders are entitled, but shall have no duty or obligation to the Authority, the City, the Manager, the Trustee or any other Person or otherwise, to exercise or to refrain from exercising any right or remedy reserved to the Administrative Agent and the Series 2024A Bondholders hereunder or under any of the other Financing Documents.
Section 9.05. Waivers or Omissions. No delay or omission by the Administrative Agent or any Series 2024A Bondholder in the exercise of any right, remedy or power or in the pursuit of any remedy shall impair any such right remedy or power or be construed to be a waiver of any default on the part o f the Administrative Agent or such Series 2024A Bondholder or to be acquiescence therein .
No express or implied waiver by the Administrative Agent or the Required Purchasers o f any Event of Default shall in any way be a waiver of any future or subsequent Event of Default.
Section 9.06. Discontinuance of Proceedings . In case the Administrative Agent or any Series 2024A Bondholder shall proceed to invoke any right, remedy or recourse permitted hereunder or under the Financing Documents and shall thereafter elect to discontinue or abandon the same for any reason , the Administrative Agent or such Series 2024A Bondholder shall have the unqualified right so to do and, in such event, the Parties s hall be restored to their former positions with respect to the Obligations, the Financing Documents and otherwise, and the rights, remedies, recourse and powers of the Administrative Agent and the Series 2024A Bondholders hereunder shall continue as if the same had never been invoked.
A
RTICLE X
EXPENSES AND INDEMNIFICATION
Section 10.01. Expenses.
(a) The Authority shall pay:
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(i) all reasonable out -of-pocket expenses incurred by the Administrative Agent and its Affiliates, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, in connection with any syndication of the credit facilities provided for herein, the preparation and administration of this Agreement and the other Financing Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), subject in each case to any agreement the Authority has with any such Person; (ii) a fee to the Series 2024A Bondholders for each amendment to this Agreement or any other Financing Document or any consent or waiver by the Series 2024A Bondholders with respect to any Financing Document, in each case, in a minimum amount of $3,000 plus the fees and expenses of counsel to the Series 2024A Bondholders; (iii) all reasonable fees and out -of-pocket expenses for counsel or other reasonably required consultants to the Administrative Agent in connection with advising the Administrative Agent as to its rights and responsibilities under this Agreement and the other Financing Documents or in connection with responding to requests from the Authority or the City for approvals, consents and/or waivers ;
(iv) if an Event of Default shall have occurred, all out -of-pocket expenses incurred by the Administrative Agent or any Series 2024A Bondholder, including the fees, charges and disbursements of any counsel for the Administrative Agent or any Series 2024A Bondholder , in connection with the enforcement or protection of its rights in connection with this Agreement and the other Financing Documents (whether by means of legal proceedings or otherwise), including its rights under this Section 10.01, or in connection w ith the Series 2024A Bonds purchased hereunder, including all such out -of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Series 2024A Bonds; and (v) any amounts advanced by or on behalf of the Administrative Agent, any Series 2024A Bondholder to the extent required to cure any Default, Event of Default, or event of nonperformance hereunder or under any other Financing Document, together with interest at the Default Rate.
(b) All amounts due under this Section 10.01 shall be paid by the Authority solely from the Account Collateral and the Lease Revenues available therefor.
Section 10.02. Indemnification.
(a) In addition to any and all rights of reimbursement, indemnification, subrogation or any other rights pursuant hereto or under law or equity, the Authority hereby agrees to indemnify and hold harmless the Administrative Agent, the Arranger, each Purchaser a nd eac h other Series 2024A Bondholder, and each Related Party of any of the foregoing Persons (each, an “ Indemnitee”) from and against any and all claims, actions, damages, losses, liabilities, judgments, reasonable costs or expenses whatsoever (including reasonable attorneys’ fees) which may be incurred or which may be claimed against an Indemnitee by any Person (collectively, the “ Liabilities”) by reason of or in connection with (i) the execution and delivery of this Agreement or any other Financing Document or the performance by the Parties hereto of their respective obligations hereunder or thereunder (including payment or failure to pay unde r any Financing Document); (ii) any Series 2024A Bon d or the us e of the proceeds therefrom; or (iii) any actual or prospective claim, litigation, investigation, arbitration or
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proceeding relating to any of the foregoing, whether or not such claim, litigation, investigation, arbitration or proceeding is brought by the Authority or the City or their respective members, Affiliates, creditors or any other third Person and whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that the Authority shall not be required to indemnify an Indemnitee for any Liabilities (A) to the extent, but only to the extent, determined by a court of competent jurisdiction in a final and non-appealable judgment to have resulted from the willful misconduct or gross negligence of such Indemnitee or (B) to the extent, but only to the extent, caused by any sale or transfer of the Series 2024A Bonds in violation of applicable securities law.
(b) If any proceeding shall be brought or threatened against an Indemnitee by reason of or in connection with the events described in Section 10.01(a) above , as a condition of indemnity hereunder each Indemnite e shall promptly notify the Authority in writing and the Authority shall assume the defense thereof, including the employment of counsel satisfactory to such Indemnitee and the payment of all reasonable costs of litigation . Notwithstanding the preceding sentence, each Indemnitee shall have the right to employ its own counsel and to determine its own defense of such action in any s uch case, but the fees and expenses of such counsel shall be at the expense of such Indemnitee unless ( i) the employment of such counsel shall have been authorized in writing by the Authority, or ( ii) the Authority, after due notice of the action, shall not have em ployed counsel satisfactory to such Indemnitee to have charge of such defense, in either of which events the reasonable fees and expenses of counsel for such Indemnitee shall be borne by the Authority. (c) The Authority shall not be liable for any settlement of any such action effected without its consent (such consent not to be unreasonably withheld or delayed) . The Authority will not, without the Indemnitee’s written consent, settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any claim, action or proceeding in respect of which indemnity may be sought hereunder, whether or not any Indemnitee is an actual or potential party thereto, unless such settlement, compromise, consent or termination includes an uncondi tional release of each potential Indemnitee from any liability arising out of such claim, action or proceeding. (d) All Liabilities u nder this Section 10.02 shall be paid by the Authority solely from the Account Collateral and the Lease Revenues available therefor. (e) Nothing under this Section 10.02 is intended to limit the Authority’ s payment of the Series 2024A Bonds or other Obligations .
Section 10.03. Purchaser Reimbursement . Each Purchaser severally agrees to pay any amount required to be paid by the Authority under Section 10.01 ( Expenses) or Section 10.02 (Indemnification) to the Administrative Agent and each Arranger, and each Related Party of any of the foregoing Persons (each, an “ Agent Indemnitee”) (to the extent not reimbursed by the Authority and without limiting the obligation of the Authority to do so), ratably according to their respective Applicable Percentage in effect on the date on which payment is sought under this Section 10.03 ((or, if such payment is sought after the date upon which the Commitments shall have terminated and the Series 2024A Bonds shall have been paid in full, ratably in accordance with such Applicable Percentage immediately prior to such date), and agrees to indemnify and hold eac h Agent Indemnitee harmless from and against any and all Liabilities and related expenses, including the fees, charges and disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Series 2024A Bonds) be imposed on, incurred by or asserted against such Agent Indemnitee in any way relating to or arising out of the Commitments, the Series 2024A Bonds, this Agreement, any of
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the other Financing Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by such Agent Indemnitee under or in connection with any of the foregoing; provided that the unreimbursed expense or Liability or related expense, as the case may be, was incurred by or asserted against such Agent Indemnitee in its capacity as such; provided, further, that no Purchaser shall be liable for the payment of any portion of such Liabilities, costs, expenses or disbursements that are found by a final and non- appealable decision of a court of competent jurisdiction to have resulted from such Agent Indemnitee’s willful misconduct or gross negligence.
Section 10.04. Limitation of Liability.
(a) To the extent permitted by Applicable Law , (i) the Authority and the City shall not assert, and the Authority and the City hereby waive, any claim against the Administrative Agent, any Arranger, any Purchaser and any other Series 2024A Bondholder , and any Related Party of any of the foregoing Persons (each such Person being called a “ Purchaser-Related Person ”) for any Liabilities arising from the use by others of information or other materials (including, without limitation, any personal data) obtained through telecommunications, electronic or other information transmission systems (including the Internet), and ( ii) no Party hereto shall assert, and each such Party hereby waives, any Liabilities against any other Party hereto, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Financing Document, or any agreement or instrument contemplated hereby or thereby, or any Series 2024A Bond or the use of the proceeds thereof; provided that, nothing in this Section 10.04 shall relieve the Authority of any obligation it may have to indemnify an Indemnitee, as provided in Section 10.02 ( Indemnification), against any special, indirect, consequential or punitive damages asserted against such Indemnitee by a third party. (b) No Purchaser-Related Perso n shall be liable or responsible for (i) the use which may be made of any proceeds of the Series 2024A Bonds or this Agreement or for any acts, omissions, errors, interruptions, delays in transmission, dispatch or delivery of any message or advice, however transmitted, of suc h Purchaser-Related Person in connection with this Agreement, the Series 2024A Bonds or any of the other Financing Documents; (ii) any action, inaction or omission which may be taken by such Purchaser-Related Person in connection with thi s Agreement, the Series 2024A Bonds or any of the other Financing Documents; (iii) the validity, sufficiency or genuineness of documents, or of any endorsements thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; (iv) payment by such Purchaser-Related Person against presentation of documents which do not comply with the terms of this Agreement, including failure of any documents to bear any reference or adequate reference to this Agr eement; or (v) any other circumstances whatsoever i n such Purchaser-Related Person making or failing to purchase Series 2024A Bonds in accordance with the terms herein, except for acts or events described in the immediately preceding clauses (i) through (v), to the extent, but only to the extent, of any direct, as opposed to special, indirect, consequential or punitive, damages (the right to receive special, indirect, consequential or punitive damages being hereby waived) suffered by it which the Authority proves were caused by such Purchaser -Related Person’s willful misconduct or gross negligence . (c) The Authority and the City further agree that any action taken or omitted by any Purchaser-Related Person under or in connection with this Agreement or any of the other Financing Documents, if done without willful misconduct or gross negligence, shall be effective against the Authority and the City as to the rights, duties and obligations of such Purchaser-Related Person and shall not place such Purchaser-Related Person under any liability to the Authority or the City. In
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furtherance and not in limitation of the foregoing, each Purchaser-Related Person may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary.
Section 10.05. Payments. All amounts due under this Article X shall be payabl e not later than ten (10) days after written demand therefor.
Section 10.06. Survival. The agreements in this Article X shall survive the payment of the Series 2024A Bonds and the termination of this Agreement.
ARTICLE XI
THE ADMINISTRATIVE AGENT
Section 11.01. Authorization and Action.
(a) Each Purchaser hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Financing Documents and each Purchaser authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Financing Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably in cidental thereto. Without limiting the foregoing, each Purchaser hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Financing Document s to which the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such Financing Documents. (b) The Administrative Agent shall deliver to each Purchaser, promptly and in any event within ten (10) Business Days of receipt thereof, copies of financial statement s, certificates, notices and other documents delivered to the Administrative Agent pursuant to this Agreement (including, without limitation, Article VII ( Covenants of the Authority ) and Article VIII (Covenants of the City )) and any other Financing Document .
(c) As to any matters not expressly provided for herein and in the other Financing Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Purchasers (or such other number or percentage of the Purchasers as shall be necessary, pursuant to the terms in the Financing Document s), and, unless and until revoked in writing, such instructions shall be binding upon each Purchaser; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives an indemnification and is exculpated in a manner satisfactory t o it from the Purchasers with respect to such action or (ii) is contrary to this Agreement or any other Financing Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Purchaser in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtor s; provided, further, that the Administrative Agent may seek clarification or direction from the Required Purchasers prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in the Financing Documents, the Administrative Agent shall not have any duty to
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disclose, and shall not be liable for the failure to disclose, any information relating to the Authority, the City, the Manager, TeamCo or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity.
Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it . (d) In performing its functions and duties hereunder and under the other Financing Documents, the Administrative Agent is acting solely on behalf of the Purchasers (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in natur e. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Authority, the City or the Manager. W ithout limiting the generality of the foregoing:
(i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Purchaser or holder of any other obligation other than as expressly set forth herein and in the other Financing Document s, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Financing Doc ument with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Purchaser agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administ rative Agent in connection with this Agreement and/or the transactions contemplated hereby; and
(ii) nothing in this Agreement or any Financing Document shall require the Administrative Agent to account to any Purchaser for any sum or the profit element of any sum received by the Administrative Agent for its own account. (e) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Financing Document by or through any one or more sub- agents appointed by the Administrative Agent. The Administrative Agent and any such sub- agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Par ties. The exculpatory provisions of this Article XI shall apply to any such sub- agent and to the Related Parties of the Administrative Agent and any such sub- agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub- agent except to the extent that a court o f competent jurisdiction determines in a final and non- appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (f) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Financing Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder.
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(g) In case of the pendency of any proceeding with respect to the Authority, the City or the Manager under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Series 2024A Bond or any Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Authority) shall be enti tled and empowered (but not obligated) by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Series 2024A Bonds and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Purchasers and the Administrative Agent (including any claim unde r Section
2.08 (Interest), Section 3.04 ( Fees), Section 3.05 ( Withholding of Taxes; Gross -Up), Section
3.10 (Increased Costs) and Article X (Expenses and Indemnifi cation) allowed in such judicial proceeding; and
(ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Purchaser to make such payments to the Administrative Agent and, in the event that the Administrative Age nt shall consent to the making of such payments directly to the Purchasers, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Financing Document s (including under Article X (Expenses and Indemnification). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Purchaser any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the r ights of any Purchaser or to authorize the Administrative Agent to vote in respect of the claim of any Purchaser in any such proceeding. (h) The provisions of this Article XI are solely for the benefit of the Administrative Agent and the Purchasers, and, except solely to the extent of the Authority’ s rights to consent pursuant to and subject to the conditions set forth in this Article XI, none of the Authority or the City , or any of their respective Affiliates, shall have any rights as a third -party beneficiary under any such provisions .
Section 11.02. Administrative Agent’s Reliance , Limitation of Liability, Etc. (a) Neither the Administrative Agent nor any of its Related Parties shall be (i) liable for any action taken or omitted to be taken by such party, the Administrative Agent or any of its Related Parties under or in connection with this Agreement or the other Financing Document s (x) with the consent of or at the request of the Required Purchasers (or such other number or percentage of the Purchasers as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Financing Document s) or (y) in the absence of its own gross negligence or willful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and non- appealable judgment) , or (ii) responsible in any manner to any of the Purchasers or any other Series 2024A Bo ndholders for any recitals, statements, representations or warranties made by the Authority , the City, the Manager, TeamCo or any other Person or any of their respective office rs contained in this Agreement or any other Financing Document or in any certificate, report, statement or other document referred to or
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provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Financing Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Financing Document (including, for the avoidance of doubt, in connection with the Administrative Agent’s reliance on any Electronic Signature transmitted by telecopy, emailed pdf . or any other electronic means that reproduces an image of an actual executed signature page) or for any failure of the Authority, the City, the Manager, TeamCo or any other Person to perform its obligations hereunder or thereunder.
(b) The Administrative Agent shall be deemed not to have knowledge of any (i) notice of any of the events or circumstances set forth or described in Section 7.04 ( Certain Notices) or Section
8.04 (Certain Notices) unless and until written notice thereof stating that it is a “notice under Section
7.04” or a “notice under Section 8.04” in respect of this Agreement and identifying the specific clause under said Section is given to the Administrative Agent by the Author ity or the City, as the case may be, or (ii) notice of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of Default” or a “notice of an Event of Default”) is given to the Administrative Agent by the Authority, the City, the Trustee or a Purchase r or any other Series 2024A Bondholder. Further, the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into ( A) any statement, warranty or representation made in or in connection with any Financing Document , ( B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth i n any Financing Document or the occurrence of any Default or Event of Default , ( D) the sufficiency, validity, enforceability, effectiveness or genuineness of any Financing Document or any other agreement, instrument or document , (E) the satisfaction of any condition set forth in Article IV (Conditions Precedent) or elsewhere in any Financing Document, other than to confirm receipt of items (which on their face purport to be such items) expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent, or ( F) the creation, perfection or priority of Liens on the Collateral .
(c) Without limiting the foregoing, the Administrative Agent (i) may treat the payee of any Series 2024A Bond as its holder until such Series 2024A Bond has been assigned in accordance with Section 12.13 (Successors and Assigns), (ii) may rely on the Register to the extent set forth in Section
12.13(b) (Assignments), (iii) may consult with legal counsel (including counsel to the Authority), independent public accountants and other experts selected by it, and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts, (iv) makes no warranty or representation to any Purchase r or any other Series 2024A Bondholder and shall not be responsibl e to any Purchase r or any other Series 2024A Bondholder for any statements, warranties or representations made by or on behalf of the Authority, the City, the Manager, TeamCo or any other Person in connection with this Agreement or any other Financing Document, (v) in determining compliance with any condition hereunder to the purchase of any Series 2024A Bond that by its terms must be fulfilled to the satisfaction of a Purchaser, may presume that such condition is satisfactory to such Purchaser unless the Administrative Agent shall have received notice to the contrary from such Purchaser sufficiently in advance of the purchase of such Series 2024A Bond, and (vi) shall be entitled to rely on, and shall incur no liability under or in respect of this Agreement or any other Financing Document by acting upon, any notice, consent, certificate or other instrument or writing (which writing may be a fax, any electronic message, Internet or intranet website posting or other distribution) or any statement made to it orally or by telephone and believed by it to be genuine and signed or sent or otherwise authenticated by the proper party or parties
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(whether or not such Person in fact meets the requirements set forth in the Financing Document s for being the maker thereof).
Section 11.03. Posting of Communications.
(a) The Authority and the City agree that the Administrative Agent may, but shall not be obligated to, make any Communications available to the Purchasers by posting the Communications on IntraLinks ™, DebtDomain, SyndTrak, ClearPar or any other electronic platform chosen by the Administrative Agent to be its electronic transmission system (the “ Approved Electronic Platform ”). (b) Although the Approved Electronic Platform and its primary web portal are secured with generally -applicable security procedures and policies implemented or modified by the Administrative Agent from time to time (including, as of the applicable Closing Date , a user ID/password authorization system) and the Approved Electronic Platform is secured through a per - deal authorization method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Purchasers , the Authority and the City acknowledges and agrees that the distribution of material through an electronic medium is not necessarily secure, that the Administrative Agent is not responsible for approving or vetting the representatives or contacts of any Purchaser that are added to t he Approved Electronic Platform, and that there may be confidentiality and other risks associated with such distribution. Each of the Purchasers, the Authority and the City hereby approves distribution of the Communications through the Approved Electronic Platform and understands and assumes the risks of such distribution. (c) THE APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE ”. THE APPLICABLE PARTIES (AS DEFINED BELOW ) DO NOT WARRANT THE
ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS , OR THE ADEQUACY OF THE APPROVE D
ELECTRONIC PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS . NO WARRANTY OF ANY KIND , EXPRESS,
IMPLIED OR STATUTORY , INCLUDING ANY WARRANTY OF MERCHANTABILITY , FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OF THIRD -PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE
DEFECTS, IS MADE BY THE APPLICABLE PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT, ANY ARRANGER OR ANY OF THEIR RESPECTIVE RELATED PARTIES (COLLECTIVELY , “APPLICABLE PARTIES”) HAVE ANY
LIABILITY TO THE AUTHORITY, THE CITY, ANY PURCHASER, OR ANY OTHER PERSON OR ENTITY FOR
DAMAGES OF ANY KIND , INCLUDING DIRECT OR INDIRECT , SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT , CONTRACT OR OTHERWISE ) ARISING OUT OF THE AUTHORITY’S, THE CITY’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET OR THE APPROVED ELECTRONIC PLATFORM. (d) Each Purchaser agrees that notice to it (as provided in the next sentence) specifying that Communications have been posted to the Approved Electronic Platform shall constitute effective delivery of the Communications to such Purchaser for purposes of the Financing Document s. Each Purchaser agrees (i) to notify the Administrative Agent in writing (which could be in the form of electronic communication) from time to time of such Purchaser’s email address to which the foregoing notice may be sent by electroni c transmission and (ii) that the foregoing notice may be sent to such email address.
(e) Each of the Purchasers, the Authority and the City agrees that the Administrative Agent may, but (except as may be required by applicable law) shall not be obligated to, store the
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Communications on the Approved Electronic Platform in accordance with the Administrative Agent’s generally applicable document retention procedures and policies. (f) Nothing herein shall prejudice the right of the Administrative Agent or any Purchaser to give any notice or other communication pursuant to any Financing Document in any other manner specified in such Financing Document.
Section 11.04. The Administrative Agent Individually. With respect to its Commitment and Series 2024A Bonds, the Person serving as the Administrative Agent shall have and may exercise the same rights and powers hereunder and is subject to the same obligations and liabilities as and to the extent set forth herein for any other Purchaser. The terms “Purchasers” , “Series 2024A Bondholders”, “Required Purchasers” and any similar terms shall, unless the context clearly otherwise indicates, include the Administrative Agent in its individual capacity as a Purchaser , a Series 2024A Bondholder or as one of the Required Purchasers , as applicable. The Person serving as the Administrative Agent and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of banking, trust or other business with, the Authority, the City, the Manager, TeamCo , any other Person or any Affiliate of any of the foregoing as if such Person was not acting as the Administrative Agent and without any duty to account therefor to the Purchasers .
Section 11.05. Successor Administrative Agent .
(a) The Administrative Agent may resign at any time by giving thirty ( 30) days’ prior written notice thereof to the Purchasers , the Authorit y, the City and the Trustee , whether or not a successor Administrative Agent has been appointed. Upon any such resignation, the Required Purchasers shall have the right to appoint a successor Administrative Agent . If no successor Administrative Agent shall have been so appointed by the Required Purchasers , and shall have accepted such appointment, within thirty ( 30) days after the retiring Administrative Agent’s giving of notice of resignation, then the retiring Administrative Agent may, on behalf of the Purchasers, appoint a successor Administrative Agent, which shall be a bank with an office in New York, New York or an Affiliate of any such bank. In either case, such appointment shall be subject to the prior written approval of the Authority (which approval may not be unreasonably withheld and shall not be required while an Event of Defaul t has occurred and is continuing). Upon the acceptance of any appointment as Administrative Agent by a successor Administrative Agent, such successor Administrative Agent shall succeed to, and become vested wit h, all the rights, powers, privileges and duties of the retiring Administrative Agent. Upon the acceptance of appointment as Administrative Agent by a successor Administrative Agent, the retiring Administrative Agent shall be discharged from its duties and obligations under this Agreement and the other Financing Document s. Prior to any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the retiring Administrative Agent shall take such action as may be reasonably necessary to as sign to the successor Administrative Agent its rights as Administrative Agent under the Financing Document s. (b) Notwithstanding Section 11.05(a) above , in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within thirty ( 30) days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Purchasers, the Authority, the City, the Manager and the Trustee, whereupon, on the date of effectiveness of such resignation stated in such notice, (i) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Financing Document s; and (ii ) the Required Purchasers shall succeed to
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and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent; provided that (A) all payments required to be made hereunder or under any other Financing Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (B) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall directly be given or made to each Purchaser. Following the effectiveness of the Administrative Agent’s resignation from its capacity as such, the provisions of this Article XI and Article X ( Expenses and Indemnification) , as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Financing Document, shall continue in effect for the benefit of such retiring Administrative Agent, its sub- agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Ad ministrative Agent was acting as Administrative Agen t.
Section 11.06. Acknowledgements of Purchasers .
(a) Each Purchaser represents and warrants that (i) the Financing Documents set forth the terms of the Series 2024A Bonds, (ii) in participating as a Purchaser, it is engaged in making, purchasing, acquiring or holding commercial loans or bonds and in providing other facilities set forth herein as may be applicable to such Purchaser, in each case in the ordinary course of business, and not for the purpose of investing in the general performance or operations of the Authority, the City or the Manager, or for the purpose of purchasing, acquiring or holding any other type of financial instrument such as a security (and each Purchaser agrees not to assert a claim in contravention of the foregoing, such as a claim under the federal or state securities laws), (iii) it has, independently and without reliance upon the Administrative Agent, any Arranger, or any other Purchaser, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own cred it analysis and decision to enter into this Agreement as a Purchaser, and to purchase, acquire and hold Series 2024A Bonds hereunder, and (iv) it is sophisticated with respect to decisions to purchase, acquire and/or hold Series 2024A Bonds and to provide other facilities set forth herein, as may be applicable to such Purchaser, and either it, or the Person exercising discretion in making its decision to purchase, acquire and/or hold such Series 2024A Bonds or to provide such other facilities, is experienced in purchasing, acquiring or holding such Series 2024A Bonds or providing such other facilities. Each Purchaser also acknowledges that it will, independently and without reliance upon the Administrative Agent, any Arranger or any other Purchaser, or any of the Related Parties of any of the foregoing, and based on such documents and information (which may contain material, non -public information within the meaning of the United States securities laws concerning the Authority, the City, the Manager, TeamCo , any other Person and their respective A ffiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Financing Document or any related agreement or any document furnished hereunder or thereunder.
(b) Each Purchaser, by delivering its signature page to this Agreement on the Initial Closing Date, or delivering its signature page to a Joinder Agreement , an Assignment and Assumption or any other Financing Document pursuant to which it shall become a Purchaser hereunder on any date subsequent to the Initial Closing Date, shall be deemed to have acknowledged receipt of, and consented to and approved, each Financing Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Purchasers on the Initial Closing Date. (c) (i) Each Purchaser hereby agrees that (x) if the Administrative Agent notifies such Purchaser that the Administrative Agent has determined in its sole discretion that any funds received by such Purchaser from the Administrative Agent or any of its Affiliates ( whether as a payment,
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prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were erroneously transmitted to such Purchaser (whether or not known to such Purchaser), and demands the return of such Payment (or a portion thereof), such Purchaser shall promptly, but in no event later than one Business Day thereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing) , return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent ) in respect of each day from and including the date such Payment (or portion thereof) was received by such Purchaser to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative A gent in accordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, such Purchaser shall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of set -off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Payments received, including without limit ation any defense based on “discharge for value” or any similar doctrine. A notice of the Administrative Agent to any Purchaser under this Section 11.06(c) shall be conclusive, absent manifest error. (ii) Each Purchaser hereby further agrees that if it receives a Payment from the Administrative Agent or any of its Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice ”) or (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Purchaser agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Purchaser shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no event later t han one Business Day thereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Payment (or portion thereof) was received by such Purchaser to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. (iii)
The Authority and the City hereby agree that (x) in the event an erroneous Payment (or portion thereof) is not recovered from any Purchaser that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Purchaser with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Authority or the City.
(iv) Each Party’s obligations under this Section 11.06(c) shall survive the resignation or replacement of the Administrative Agent or any transfer of rights or obligations by, or the replacement of, a Purchaser, the termination of the Commitments or the repayme nt, satisfaction or discharge of all Obligations under any Financing Document.
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Section 11.07. Certain ERISA Matters .
(a) Each Purchaser (x) represents and warrants, as of the date such Person became a Purchaser party hereto, to, and (y) covenants, from the date such Person became a Purchaser party hereto to the date such Person ceases being a Purchaser party hereto, for the benefit of, the Administrative Agent and each Arranger and their respective Affiliates , and not, for the avoidance of doubt, to or for the benefit of the Authority or the City, that at least one of the following is and will be true:
(i) such Purchaser is not using “plan assets” (within the meaning of the Plan Asset Regulations) of one or more Benefit Plans in connection with the Series 2024A Bonds or the Commitments;
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84- 14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90 -1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91- 38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96- 23 (a clas s exemption for certain transactions determined by in- house asset managers), is applicable with respect to such Purchaser’s entrance into, participation in, administration of and performance of the Series 2024A Bonds, the Commitments and this Agreement ;
(iii) (A) such Purchaser is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84- 14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Purchaser to enter into, participate in, purchase, administer and perform the Series 2024A Bonds, the Commitments and this Agreement, (C) the entrance into, participation in, purchase and administration of and performance of the Series 2024A Bonds, the Commitments and this Agreem ent satisfies the requirements of sub- sections (b) through (g) of Part I of PTE 84- 14, and (D) to the best knowledge of such Purchaser, the requirements of subsection (a) of Part I of PTE 84- 14 are satisfied with respect to such Purchaser’s entrance into, participation in, administration and purchase of and performance of the Series 2024A Bonds, the Commitments and this Agreement; or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Purchaser. (b) In addition, unless sub- clause (i) in the immediately preceding paragraph ( a) is true with respect to a Purchaser or such Purchaser has provided another representation, warranty and covenant as provided in sub- clause (iv) in the immediately preceding paragraph (a ), such Purchaser further (x) represents and warrants, as of the date such Person became a Purchaser party hereto, to, and (y) covenants, from the date such Person became a Purchaser party hereto to the date such Person ceases being a Purchaser part y hereto, for the benefit of, the Administrative Agent and each Arranger and their respective Affiliates , and not, for the avoidance of doubt, to or for the benefit of the Authority or the City, that none of the Administrative Agent or any Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Purchaser (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Financing Document or any documents rel ated to hereto or thereto).
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(c) The Administrative Agent and each Arranger hereby informs the Purchasers that each such Person is not undertaking to provide investment advice or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Series 2024A Bonds, the Commitments, this Agreement and any other Financing Document s, (ii) may recognize a gain if it purchased the Series 2024A Bonds or the Commitments for an amount less than the amount being paid for an interest in the Series 2024A Bonds or the Commitments by such Purchaser , or (ii i) may receive fees or other payments in connection with the transactions contemplated hereby, the Financing Document s or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fee s, underwriting fees, ticking fees, agency fees, administrative agent fees, utilization fees, minimum usage fees, fronting fees, deal -away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.
A
RTICLE XII
MISCELLANEOUS
Section 12.01. Patriot Act Notice. Each Purchaser hereby notifies the Authority and the City that pursuant to the requirements of the Patriot Act, it is required to obtain, verify, and record information that identifies the Authority and the City, which information includes the name and address of the Authority and the City and other information that will allow such Purchaser to identify the Authority and the City in accordance with the Patriot Act . The Authority and the City shall, promptly following a request by each Purchaser provide all documentation and other information that such Purchaser requests in order to comply with its ongoing obligations under applicable “know your customer” and anti -money laundering rules and regulations, including the Patriot Act.
Section 12.02. Further Assurances .
(a) From time to time upon the request of any Party, t he other Parties shall promptly and duly execute, acknowledge and deliver any and all such further instruments and documents as the requesting Party may in its reasonable discretion deem necessary or desirable to confirm this Agreement and the other Financing Documents, to carry out the purpose and intent hereof and thereof or to enable the requesting Party to enforce any of its rights hereunder or thereunder . (b) At any time and from time to time, upon the request of the Administrative Agent or any Series 2024A Bondholder (through the Administrative Agent) , the Authority and the City will, at the Authority’s or the City’s expense, as applicable, ( i) correct any defect, error or omission which may be discovered in the form or content of any of the Financing Documents ; and (ii) make, execute, deliver and record, or cause to be made, executed, delivered and recorded, any and all further instruments, certificates, and other documents as may, in the opinion of the Administrative Agent or such Series 2024A Bondholder, be necessary or desirable in order to complete, perfect or continue and preserve the Liens of the Collateral Documents. Upon any failure by the Authority or the City to do so, the Administrative Agent or the Trustee may make, execute and record any and all such instruments, certificates and other documents for and in the name of the Authority or the City, all at the sole expense of the Authority or the City , as applicable, and the Authority and the City each hereby appoints the Administrative Agent and the Trustee the agent and attorney -in-fact of the Authority and the City to do so, this appointment being coupled with an interest and being irrevocable .
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(c) In addition, at any time and from time to time, upon the request of the Administrative Agent or any Series 2024A Bondholder (through the Administrative Agent) or the Trustee, the Authority and the City will, at the Authority’s or the City’s expense, as applicable, provide any and all further instruments, certificates and other documents as may, in the opinion of the Administrative Agent, such Series 2024A Bondholder or the Trustee, be necessary or desirable in order to verify the Authority’s or the City’s identity and background in a manner satisfactory to the Administrative Agent, such Series 2024A Bondholder or the Trustee, as the case may be.
Section 12.03. Amendments and Waivers.
(a) Subject to Section 2.09(b) and (c) (Alternate Rate of Interest) and Section 12.03(b) below, neither this Agreement, any other Financing Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the parties thereto with the written consent of the Administrative Agent (acting at the written direction of the Required Purchasers); provided, however, that no such agreement shall :
(i) increase the Commitment of any Purchaser or change any provisions in this Agreement in a manner that would alter the ratable reduction of Commitments or the pro rata sharing of payments or the flow of funds provisions required hereby without, in each case, the written consent of each Purchase r directly affected thereby ; (ii) postpone the scheduled date of payment of the principal amount of any Series 2024A Bond, or any interest thereon, or any fees payable hereunder or under any other Financing Document, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled expiration date of any Commitment without, in each case, the written consent of each Purchaser or Series 2024A Bondholder directly affected thereby ; (iii) extend the fixed maturity of any Series 2024A Bonds, or reduce the amount of principal thereof or the rate of interest thereon (including change the definition of the Default Rate or waive any obligation of the Authority to pay interest at the Default Rate), or extend the time of payment without, in each case, the written consent of each Series 2024A Bondholder affected thereby;
(iv) change any provisions in the I ndenture, the Accounts Agreement or the Accounts Control Agreement in a manner that would alter the pro rata sharing of payments or the flow of funds or funds transfer provisions required thereunder without, in each case, the written consent of the Owners directly affected thereby; (v) change the payment waterfall provisions of Section 2.10(c) ( Payments Generally; Pro Rata Treatment; Sharing of Setoffs ) hereof , Section 2.12(a)(ii) (Defaulting Purchasers) hereof, Section 9.03 ( Application of Payments ) hereof or Section 7.09 (Application of Amounts After Default ) of the Master Indenture without, in each case, the written consent of the Series 2024A Bondholders;
(vi) change an y provisions of Section 9.01 ( Modifications and Amendments Permitted) of the Master Indenture or the definition of “Required Bond Owners” thereunder , or change any provisions of this Section 12.03 or the definition of “Required Purchasers ” or any other provision hereof or of the Master Indenture specifying the number or percentage of Purchasers, Series 2024A Bondholders or Owners required to waive, amend or modify any
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rights hereunder or thereunder or make any determination or grant any consent hereunder or thereunder without, in each case, the written consent of the Series 2024A Bondholders; (vii) permit the creation of any lien or security interest on the Base Rental Payments, other Lease Revenues and other Collateral pledged under the Indenture and the other Collateral Documents prior to or on a parity with the lien and security interest created by the Indenture and the other Collateral Documents or deprive the Owners of the Bonds of the lien and security interest created by the Indenture and the other Collateral Documents on such Base Rental Payments, other Lease Revenues and other Collateral without, i n each case, the written consent of the Owners of all the Bonds then Outstanding;
(viii) modify the Base Rental Payment Schedule under the Lease Agreement without the written consent of th e Series 2024A Bondholders except as provided in Section 3.01(c) (Base Rental Payments) of the Lease Agreement ; or
(ix) release all or substantially all the Collateral from the liens and security interests created by the Indenture and the other Collateral Documents without the written consent of the Owners of all the Bonds then Outstanding ( other than in connection with any sale of the applicable Collateral permitted by the Collateral Documents, including without limitation, any substitution or release of Additional Project Property in accordance with Section 7.01 (Substitution or Release of Additional Project Property ) of the Ground Lease); provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Purchasers and Series 2024A Bondholders hereunder without the prior written consent of the Administrative Agent or the Purchasers and Series 2024A Bondholders, as the case may be .
(b) If the Administrative Agent, the Authority and the City acting together identify any ambiguity, omission, mistake, typographical error or other defect in any provision of this Agreement or any other Financing Document, then the Administrative Agent, the Authority and the City shall be permitted to amend, modify or supplement such provision to cure such ambiguity, omission, mistake, typographical error or other defect, and such amendment shall become effective without any further action or consent of any other party to this Agreement or any other Financing Document .
Section 12.04. No Implied Waiver; Cumulative Remedies . (a) No course of dealing and no delay or failure of the Administrative Agent or any Series 2024A Bondholder in exercising any right, power or privilege under this Agreement or the other Financing Documents shall operate as a waiver thereof or shall affect any other or future exercise thereof or exercise of any right, power or privilege, nor shall any single or partial exercise of any such right, power or privilege, or any abandonment or discontinuance of steps to enforce such a right, power or privilege preclude any further exercise thereof or of any other right, power or privilege. The rights and remedies of the Administrative Agent and the Series 2024A Bondholders under this Agreement are cumulative and not exclusive of any rights or remedies that they would otherwise have under any Financing Document, at law or in equity.
(b) No waiver of any provision of this Agreement or consent to any departure by the Authority or the City therefrom shall in any event be effective unless the same shall be permitted by Section 12.03(a) ( Amendments and Waivers ), and then such waiver or consent shall be effective only
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in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Purchase shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent or any Series 2024A Bondholder may have had notice or knowledge of such Default at the time .
Section 12.05. Notices.
(a) All notices, requests, demands, directions and other communications (collectively “notices”) under the provisions of this Agreement shall be in writing (including facsimile communication), unless otherwise expressly permitted hereunder, and shall be sent by first -class mail or overnight delivery and shall be deemed received as follows: (i) if by first class mail, five (5) days after mailing; (ii) if by overnight delivery, on the next Business Day; (iii) if by telephone, when given to a person who confirms such receipt; and (iv) if by facsimile or email, when confirmation of receipt is obtained from the recipient . All notices shall be sent to the applicable Party to its a ddress (or in accordance with the last unrevoked written direction from such Party to the other P arties) as follows:
If to t he Authority: Anaheim Public Financing Authority Anaheim City Hall
200 South Anaheim Boulevard, 6 th Floor
Anaheim, California 92805
Attention: Finance Director
Email: [email protected]
With a copy to:
City of Anaheim
Anaheim City Hall
200 South Anaheim Boulevard, 2 nd Floor
Anaheim, California 92805
Attention: City Clerk
Email: [email protected]
If to t he City: City of Anaheim
Anaheim City Hall
200 South Anaheim Boulevard, 6
th Floor
Anaheim, California 92805
Attention: Finance Director
Email: [email protected]
With a copy to:
City of Anaheim
Anaheim City Hall
200 South Anaheim Boulevard, 2 nd Floor
Anaheim, California 92805
Attention: City Clerk
Email: [email protected]
If to t he Administrative Agent:
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(i) JPMorgan Chase Bank, National Association, 383 Madison Avenue, 3 rd Floor (Mail Code NY1- M165), New York, NY
10179, Attention of James G. Millard, Executive Director (Telephone: (212) 270- 2198, Email:
[email protected]); ( ii) JPMorgan Chase Bank, National Association, 383 Madison Avenue, 3 rd Floor (Mail Code NY1-M165), New York, NY 10179, Attention of Shawn
Laljit, Vice President ( Telephone: (212) 270- 0504, Email:
[email protected]); ( iii) JPMorgan Chase Bank, National Association, 383 Madison Avenue, 3 rd Floor (Mail Code NY1-M165), New York, NY 10179, Attention of David
J. Campbell ( Telephone: (212) 270- 0567, Email:
[email protected]); ( iv) JPMorgan Chase
Bank, National Association, 383 Madison Avenue, 3 rd Floor (Mail Code NY1 -M165), New York, NY 10179, Attention of Selina Au Yang ( Telephone: (212) 270- 0763, Email :
[email protected]); ( v) JPMorgan Chase Bank, National Association, 383 Madison Avenue, 3 rd Floor ( Mail Code NY1-M076), New York, NY 10179, Attention of Noah
Schimanski, Associate ( Telephone: (212) 270- 8252, Email:
[email protected]); and ( vi) JPMorgan Chase Bank, National Association, 383 Madison Avenue, 3 rd Floor (Mail Code NY1 -M076), New York, NY 10179, Attention of Ashish Patel, Associate ( Telephone: (212) 622- 8091, Email:
[email protected])
With a copy (which shall not constitute notice) to:
Winston & Strawn LLP
200 Park Avenue
New York, New York 10166
Attention: Alan Hoffman
Email: [email protected]
If to JPMorgan Chase Bank,
National Association, as Purchaser:
(i) JPMorgan Chase Bank, National Association, 383 Madison Avenue, 3 rd Floor (Mail Code NY1- M165), New York, NY
10179, Attention of James G. Millard, Executive Director (Telephone: (212) 270- 2198, Email:
[email protected]
); (ii) JPMorgan Chase Bank,
National Association, 383 Madison Avenue, 3 rd Floor (Mail Code NY1-M165), New York, NY 10179, Attention of Shawn
Laljit, Vice President ( Telephone: (212) 270- 0504, Email:
[email protected]); (iii) JPMorgan Chase Bank,
National Association, 383 Madison Avenue, 3 rd Floor (Mail Code NY1-M165), New York, NY 10179, Attention of David
J. Campbell ( Telephone: (212) 270- 0567, Email:
[email protected]); (iv) JPMorgan Chase
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Bank, National Association, 383 Madison Avenue, 3 rd Floor (Mail Code NY1 -M165), New York, NY 10179, Attention of Selina Au Yang ( Telephone: (212) 270- 0763, Email:
[email protected]); (v) JPMorgan Chase Bank,
National Association, 383 Madison Avenue, 3 rd Floor ( Mail Code NY1-M076), New York, NY 10179, Attention of Noah
Schimanski, Associate ( Telephone: (212) 270- 8252, Email:
[email protected]); and (vi) JPMorgan Chase
Bank, National Association, 383 Madison Avenue, 3 rd Floor (Mail Code NY1 -M076), New York, NY 10179, Attention of Ashish Patel, Associate ( Telephone: (212) 622- 8091, Email:
[email protected])
With a copy (which shall not constitute notice) to:
Winston & Strawn LLP
200 Park Avenue
New York, New York 10166
Attention: Alan Hoffman
Email: [email protected]
If to Bank of America, N.A., as Purchaser:
Bank of America, N.A.
Westpark BC
8300 Greensboro Drive, 3 rd Floor
Mail Code: VA9-200-MZ-05
McLean, VA 22102-3604
Attention: Monica Sevila
Telephone: (703) 761-8291
Email: [email protected]
If to any other Purchaser : T o it at its address (or telecopy number) set forth in its Administrative Questionnaire
If to t he Trustee: U.S. Bank Trust Company, National Association 633 West Fifth Street, 24th Floor
Los Angeles, California 90071
Attention: Global Corporate Trust
Email: [email protected]
If to the Manager: Anaheim Arena Management, LLC
c/o H & S Ventures, LLC
2101 E Coast Highway, Third Floor
Corona del Mar, CA 92625
Attention: Legal Department
Telephone: (949) 760-4431
Email: [email protected]
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(b) The Purchasers and the Administrative Agent may rely on any notice (including telephone communication) purportedly made by or on behalf of the other Parties, and shall have no duty to verify the identity or authority of the Person giving such notice, unles s such actions or omissions would amount to gross negligence or intentional misconduct. (c) Notices to the Authority, the City , the Manager, the Trustee and the Purchasers hereunder may be delivered or furnished by using Approved Electronic Platforms pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article II ( Purchase of Series 2024A Bonds) unless otherwise agreed by the Administrative Agent and the applicable Purchaser. The Administrative Agent, the Authority or the City may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications p ursuant to procedures approved by it; provided that, approval of such procedures may be limited to particular notices or communications. (d) Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e -mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e -mail address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient. (e) Any Party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other Parties.
Section 12.06. No Third-Party Rights . Nothing in this Agreement, whether express or implied, shall be construed to give to any Person other than the Parties and the Series 2024A Bondholders any legal or equitable right, remedy or claim under or in respect of this Agreement, which is intended for the sole and exclusive benefit of the Parties and the Series 2024A Bondholders.
Notwithstanding the foregoing, the Parties hereby acknowledge and agree that each Indemnitee is intended by the Parties to be, and shall be, a third- party beneficiary of Article X ( Expenses and Indemnification) and may enforce the provisions thereof as if it were a party hereto.
Section 12.07. Severability. The provisions of this Agreement are intended to be severable .
If any provision of this Agreement shall be held invalid or unenforceable in whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the remaining provisions hereof in any jurisdiction.
Section 12.08. Right of Setoff. If an Event of Default shall have occurred and be continuing, each Purchaser and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to setoff and apply any and all deposits (general or special, time or demand, provisional or final) at any time held, and other obligations at any time owing, by such Purchaser or any such Affiliate, to or for the credit or the account of the Manager against any and all of the obligations of the Aut hority, the City or the Manager now or hereafter existing under this Agreement or any other Financing Document to such Purchaser or their respective Affiliates,
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irrespective of whether or not such Purchaser or Affiliate shall have made any demand under this Agreement or any other Financing Document and although such obligations of the Authority, the City or the Manager may be contingent or unmatured or are owed to a branch office or Affiliate of such Purchaser different from the branch office or Affiliate holding such deposit or obligated on such indebtedness; provided, that in the event that any Defaulting Purchaser shall exercise any such right of setoff, (a) all amounts so setoff shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2. 12 ( Defaulting Purchasers) and, pending such payment, shall be segregated by such Defaulting Purchaser from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Purchasers, and ( b) the Defaulting Purchaser shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Purchaser as to which it exercised such right of setoff. The rights of each Purchaser and their respective Affiliates under this Section 12.08 are in addition to other rights and remedies (including other rights of setoff) that such Purchaser or their respective Affiliates may have. Each Purchaser agrees to notify the Authority, the City , the Manager, the Administrative Agent and the Trustee promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.
Section 12.09. Governing Law; Waiver of Jury Trial; Jurisdiction . (a) THIS AGREEMENT SHALL BE GOVERNED BY , AND CONSTRUED IN ACCORDANCE WITH , THE LAWS OF THE STATE OF CALIFORNIA WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS PROVISIONS;
PROVIDED THAT THE OBLIGATIONS OF THE ADMINISTRATIVE AGENT AND EACH PURCHASER UNDER THI S AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. (b) EACH PURCHASER AND THE ADMINISTRATIVE AGENT HEREBY IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT , NOTWITHSTANDING THE GOVERNING LAW PROVISIONS OF ANY
APPLICABLE FINANCING DOCUMENT, ANY CLAIMS BROUGHT AGAINST THE ADMINISTRATIVE AGENT BY
ANY PURCHASER RELATING TO THIS AGREEMENT, ANY OTHER FINANCING DOCUMENT OR THE
CONSUMMATION OR ADMINISTRATION OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY
SHALL BE GOVERNED BY , AND CONSTRUED IN ACCORDANCE WITH , THE LAWS OF THE STATE OF NEW YORK.
(c) SUBJECT TO P ARAGRAPHS (A) AND (B) ABOVE, E ACH PARTY HERETO CONSENTS TO AND
SUBMITS TO IN PERSONAM JURISDICTION AND VENUE IN THE STATE OF CALIFORNIA AND IN THE FEDERAL DISTRICT COURTS WHICH ARE LOCATED IN ORANGE COUNTY IN THE STATE OF CALIFORNIA. SUBJECT TO
PARAGRAPHS (A) AND (B) ABOVE, EACH PARTY ASSERTS THAT IT HAS PURPOSEFULLY AVAILED ITSELF OF
THE BENEFITS OF THE LAWS OF THE STATE OF CALIFORNIA AND WAIVES ANY OBJECTION TO IN PERSONAM
JURISDICTION ON THE GROUNDS OF MINIMUM CONTACTS , WAIVES ANY OBJECTION TO VENUE , AND WAIVES ANY PLEA OF FORUM NON CONVENIENS . THIS CONSENT TO AND SUBMISSION TO JURISDICTION IS WITH REGARD TO ANY ACTION RELATED TO THIS AGREEMENT.
(d) The covenants and waivers made pursuant to this Section 12.0 9 shall be irrevocable and unmodifiable, whether in writing or orally, and shall be applicable to any subsequent amendments, renewals, supplements or modifications of this Agreement . In the event of litigation, this Agreement may be filed as a written consent to a trial by the court. (e) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HEREBY WAIVES
ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT, THE FINANCING DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR
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THEREBY, INCLUDING CONTRACT CLAIMS , TORT CLAIMS , BREACH OF DUTY CLAIMS , AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS .
Section 12.10. Prior Understandings. This Agreement and the other Financing Documents supersede all other prior understandings and agreements, whether written or oral, among the P arties relating to the transactions provided for herein and therein.
Section 12.11. Duration. All representations and warranties of the Authorit y and the City contained herein or made in connection herewith shall survive the making of and shall not be waived by the execution and delivery of this Agreement or the other Financing Documents . All covenants and agreements of the Authority and the City contained herein shall continue in full force and effect from and after the date of this Agreement u ntil the Obligations have been fully discharged.
Section 12.12. Counterparts. This Agreement may be executed in any number of counterparts and by the different P arties on separate counterparts each of which, when so executed, shall be deemed an original, but all such counterparts shall constitute but one and the same instrument .
Delivery of an executed counterpart of a signature page of this Agreement by facsimile transmission or by e -mail with a pdf copy or other replicating image attached, will be effective as delivery of a manually executed counterpart of this Agreement, and any printed or copied version of any signature page so delivered will have the same force and effect as an originally signed version of such signature page.
Section 12.13. Successors and Assigns .
(a) Successors and Assigns Generally . This Agreement is a continuing obligation and shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns permitted hereby, except that (i) neither the Authority nor the City may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Purchaser (and any attempted assignment or transfer by the Authority or the City without such consent shall be null and void), and (ii) no Purchaser may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 12.13. Nothing i n this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the Parties hereto, their respective successors and assigns permitted hereby, Participants (to the extent provided in paragraph ( c) (Participations) below) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Purchasers) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments.
(i) Subject to the conditions set forth in paragraph (b)(ii) below, any Purchaser may assign to one or more Persons (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its applicable Commitment and Series 2024A Bond at the time owned by it) with the prior written consent (such consent not to be unreasonably withheld) of:
(A) the Authority (or the Manager as its Authorized Designee pursuant to the Authority Direction Letter) ; provided that, the Authority and the Manager (as its Authorized Designee pursuant to the Authority Direction
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Letter) shall be deemed t o have consented to an assignment of all or a portion of the Series 2024A Bonds and Commitments unless it shall have objected thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof ; provided, further, that no consent of the Authorit y or the Manager (as its Authorized Designee pursuant to the Authority Direction Letter) shall be required for an assignment to a Purchaser, an Affiliate of a Purchaser, an Approved Fund or, if an Event of Default has occurred and is continuing, any other assignee; and
(B) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of any Commitment or Series 2024A Bonds to an assignee that is a Purchaser (other than a Defaulting Purchaser) with a Commitment immediately prior to giving effect to such assignment.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Purchaser or an Affiliate of a Purchaser or an assignment of the entire remaining amount of the assigning Purchaser’s Commitment or its Series 2024A Bond, the amount of the Commitment or Series 2024A Bond of the assigning Purchaser subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Authority (or the Manager as its Authorized Designee pursuant to the Authority Direction Letter) and the Administrative Agent otherwise consent; provided that no such consent of the Authority or the Manager (as its Authorized Designee pursuant to the Authority Direction Letter) shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Purchaser’s rights and obligations under this Agreement; provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Purchaser’s rights and obligations in respect of one type of Commitment or Series 2024A Bonds ; (C) the parties to each assignment shall execute and deliver to the Administrative Agen t (for delivery to the Authority, the City and the Trustee) , (x) an Assignment and Assumption or (y) to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent and the parties to the Assignment and As sumption are participants, together with (1) a processing and recordation fee of $3,500 and (2) the costs of the Authority and the Trustee incurred in connection with such assignment; (D) the assignee, if it shall not be a Purchaser, shall have delivered to the Administrative Agent, the Authority, the City, the Trustee and the assigning Purchaser, an investment letter in substantially the form of Exhibit E (Form of Investor Letter ) attached hereto (the “Investor Letter ”); and
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(E) the assignee, if it shall not be a Purchaser, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more contacts to whom all syndicate -level information (which may contain material non -public information about the Authority, the City, the Manager, TeamCo and their R elated Parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities law s.
(iii) In connection with any such assignment, the Authority shall, at the request of any assigning Purchaser upon surrender of its Series 2024A Bond to the Trustee in accordance wit h Section 2.02 ( Transfer and Exchange of Bonds ) of the Master Indenture , execute and direct the Trustee to authenticate and deliver a new Series 2024A Bond or Series 2024A Bonds in a like aggregate principal amount (subject to reduction to reflect any principal which has matured or mandatory sinking fund payments on such Series 2024A Bonds which have been made), in any authorized denomination, in accordance with the provisions of Section 2.02 ( Transfer and Exchange of Bonds ) of the Master Indenture .
(iv) The Administrative Agent shall amend Schedul e I (Commitment Amounts and Percentages ) attached hereto to reflect any such assignment of any portion of the Commitment Amount in a manner consistent with the Register, and shall notify the Trustee of any such amendment to Schedul e I (Commitment Amounts and Percentages). F or clarity, such amendment to Schedul e I (Commitment Amounts and Percentages) shall not require the consent of the Authority, the City, the Manager or any other Person.
For the purposes of this Section 12.13(b), the term “ Approved Fund” and “Ineligible Institution” have the following meanings:
“Approved Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Purchaser, (b) an Affiliate of a Purchaser, or (c) an entity or an Affiliate of an entity that administers or manages a Purchaser.
“Ineligible Institution ” means (a) a natural person, (b) a Defaulting Purchaser or its Purchaser Parent, (c) a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person or relative(s) thereof , or (d) the Authority, the City, the Manager , the Developer, TeamCo or any of their respective Affiliates; provided that, with respect to clause (c), such holding company, investment vehicle or trust shall not constitute an Ineligible Institution if it ( i) has not been established for the primary purpose of acquiring any Series 2024A Bonds or Commitments, ( ii) is managed by a professional advisor, who is not such natural person or a relative thereof, having significant experience in the business of making or purchasing commercial loans, and ( iii) has assets greater than $25,000,000 and a significant part of its activities consist of making or purchasing commercial loans and similar extensions of credit in the ordinary course of its business.
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(v) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) above, from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Purchaser under this Agreement, and the assigning Purchaser thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Purchaser’s rights and obligations under this Agreement, such Purchaser shall cease to be a party hereto but shall continue to be entitled to the benefits of Section 3.05 ( Withholding of Taxes; Gross-Up), Section 3.10 (Increased Costs), Section 3.11 ( Break Funding Payments ) and Article X ( Expenses and Indemnification). Any assignment or transfer by a Purchaser of rights or obligations under this Agreement that does not comply with this Section shall be treated for purposes of this Agreement as a sale by such Purchaser of a participation in such rights and obligations in accordance with paragraph (c) ( Participations) below. (vi) The Administrative Agent, acting for this purpose as a n agent of the Authority, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Purchasers, and the Commitment of, and principal amount (and stated interest) of the Series 2024A Bonds owing to, each Purchaser pursuant to the terms hereof from time to time (the “Register”). The entries in the Register and in the Registration Books shall be conclusive, and the Authority, the Trustee, the Administrative Agent, and the Purchasers shall treat each Person whose name is recorded in the Register and in the Registration Books pursuant to the terms hereof and the Indenture, respectively, as a Purchaser hereunder or an Owner under the Indenture for all purposes of this Agreement and the Indenture, notwithstanding notice to the contrary. The Register shall be available for inspection by the Authority, the Trustee and any Purchaser, at any reasonable time and from time to time upon reasonable prior notice. (vii) Upon its receipt (with a copy to the Authority, the City and the Trustee) of (x) a duly completed Joinder Agreement executed by the applicable Designated Purchaser, the Administrative Agent and the Manager (in its capacity as an Authorized Designee of the Authority pursuant to the Authority Direction Letter ), (y) an Assignment and Assumption executed by an assigning Purchaser and an assignee or (z) to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent and the parties to the Assignment and Assumption are participants, the assignee’s or Designated Purchaser’s completed Administrative Questionnaire (unless the assignee shall already be a Purchaser hereunder), the processing and recordation fee referred to in paragraph (b) above and any written consent to such assignment required by paragraph (b) above, (1) the Administrative Agent shall accept such Joinder Agreement or Assignment and Assumption (as applicable) and record the information contained therein in the Register and ( 2) the Trustee shall accept such Joinder Agreement or Assignment and Assumption (as applicable) and record the information contained therein in the Registration Books ; provided that if either the assigning Purchaser or the assignee shall have failed to make any payment required to be made by it pursuant to Section 2.01(b) (Purchases), Section
2.10(e) (Payments Generally; Pro Rata Treatment; Sharing of Setoffs ) or Section 10.03
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(Purchaser Reimbursement ), the Administrative Agent shall have no obligation to accept such Assignment and Assumption and record the information therein in the Register unless and until such payment shall have been made in full, together with all accrued interest thereon. No joi nder or assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register and the Registration Book s as provided in this paragraph (b) .
(c) Participations.
(i) Any Purchaser may, without the consent of the Authority or the Manager (as its Authorized Designee pursuant to the Authority Direction Letter) , but with notice to the Administrative Agent, sell participations to one or more banks or other entities (a “ Participant”), other than an Ineligible Institution, in all or a portion of such Purchaser’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Series 2024A Bonds owned by it); provided that (A) such Purchaser’s obligations under this Agreement shall remain unchanged; (B) such Purchaser shall remain solely responsible to the other Parties hereto for the performance of such obligations; and (C) the Authority, the City, the Manager, the Trustee, the Administrative Agent and the other Purchasers shall continue to deal solely and directly with such Purchaser in connection with such Purchaser’s rights and obligations under this Agreement and the other Financing Documents. Any agreement or instrument pursuant to which a Purchaser sells such a participation shall provide that such Purchaser shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Purchaser wi ll not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso to Section 12.03(b) (Waivers; Amendments ) that affects such Participant.
(ii) The Authority agrees that each Participant shall be entitled to the benefits of Section 3.05 (Withholding of Taxes; Gross-Up) (subject to the requirements and limitations therein, including the requirements under Section 3.05(f) (it being understood that the documentation required under Section 3.05 (f) shall be delivered to the participating Purchaser)), Section 3.10 ( Increased Costs) and Section 3.11 (Break Funding Payments) to the same extent as if it were a Purchaser and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 2.11 ( Mitigation Obligations; Replacement of Purchasers) as if it were an assignee under paragraph (b) (Assignment) above and (B) shall not be entitled to receive any greater payment under Section 3.05 (Withholding of Taxes; Gross-Up) or Section 3.10 (Increased Costs), with respect to any participation, than its participating Purchaser would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation.
(iii) Each Purchaser that sells a participation agrees, at the request and expense of the Authority (or the Manager as its Authorized Designee pursuant to the Authority Direction Letter) , to use reasonable efforts to cooperate with the Authority and the Manager (as its Authorized Designee pursuant to the Authority Direction
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Letter) to effectuate the provisions of Section 2.11(b) (Mitigation Obligations; Replacement of Purchase rs) with respect to any Participant. (iv) To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 12.08 (Right of Setoff) as though it were a Purchaser; provided that such Participant agrees to be subject to Section 2. 10(d) (Payments Generally; Pro Rata Treatment; Sharing of Setoffs) as though it were a Purchaser. (v) Each Purchaser that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Authority, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Series 2024A Bonds or other obligations under the Financing Documents (the “ Participant Register”); provided that no Purchaser shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Series 2024A Bonds, or its other obligations under any Financing Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Series 2024A Bond, or other obligation is in registered form under Section 5f.103- 1(c) of the United States Treasury Regulations .
The entries in the Participant Register shall be conclusive absent manifest error, and such Purchaser shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register . (d) Certain Pledges. Any Purchaser may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Purchaser, including any pledge or assignment to secure obligations to a Federal Reserve Bank, and thi s Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Purchaser from any of its obligations hereunder or substitute any such pledgee or assignee for such Purchaser as a P arty hereto .
Section 12.14. Headings. Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.
Section 12.15. Electronic Signatures . The Parties agree that the electronic signature of a Party shall be as valid as an original signature of such Party and shall be effective to bind such Party to this Agreement. The Parties agree that any electronically signed document (including this Agreement) shall be deemed (a) to be “written” or “in writing”, (b) to have been signed, and (c) to constitute a record established and maintained in the ordinary course of business and an original written record when printed from elect ronic files. Such paper copies or “printouts”, if introduced as evidence in any judicial, arbitral, mediation or administrative proceeding, will be admissible as between the Parties to the same extent and under the same conditions as other original busine ss records created and maintained in documentary form. No Party shall contest the admissibility of true and accurate copies of electronically signed documents on the basis of the best evidence rule or as not satisfying the business records exception to the hearsay rule. For purposes hereof, “electronic signature” means a manually-signed original signature that is then transmitted by electronic means; “transmitted by electronic means” means sent in the form of a facsimile or sent via the internet as a “pdf ” (portable
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document format) or other replicating image attached to an e -mail message; and, “electronically signed document” means a document transmitted by electronic means and containing, or to which there is affixed, an electronic signature.
Section 12.16. Arm’s Length Transaction . The Authority and the City acknowledge and agree that the transaction described in this Agreement and the other Financing Documents is an arm’s length commercial transaction between the Authority, the City and the Purchasers in which (a) each Purchaser i s acting solely as a principal and not as an advisor, including, without limitation, a “Municipal Advisor”, as such term is defined in Section 15B of the Securities and Exchange Act of 1934, as amended, and the related final rules (the “Municipal Advisor Rules ”), agent or a fiduciary of the Authority, the City, the Manager; (b) each Purchaser has not provided any advice or assumed any advisory or fiduciary responsibility in favor of the Authority, the City, the Manager or any other Person with respect to the transactions contemplated hereby and in the other Financing Documents and the discussions, undertakings and procedures leading thereto (whether or not such Purchaser, or any affiliate of such Purchaser, has provided other services or advised, or is currently providing other services or advising the Authority, the City or the Manager on other matters, including the Series 2024A Bonds); (c) each Purchaser has financial and other interests that differ from those of the Authority, the City and the Manager; and (d) the Authority, the City and the Manager have consulted with their own financial, legal, accounting, tax and other advisors, as applicable, to the extent it deemed appropriate.
Section 12.17. Confidentiality. Each of the Administrative Agent and the Purchasers agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and its and their respective directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any Governmental Authority (including any self -regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by Applicable Laws or regulations or by any subpoena or similar legal process, (d) to any other Party to this Agreement, (e) in connection with the exercise of any remedies hereunder or under any other Financing Document or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder or under any other Financing Document, (f) subject to an agreement containing provisions substantially the same as those of this Section 12.17, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Authority and its obligations, (g) on a confidential basis to (i) any rating agency in connection with rating the Authority or the credit facilities provided for herein or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of identification numbers with respect to the credit facilities provided for herein, (h) with the consent of the Authority or (i) to the extent such Information (ii) becomes publicly available other than as a result of a breach of this Section or (iii) becomes available to the Administrative Agen t or any Purchaser on a non- confidential basis from a source other than the Authority. For the purposes of this Section 12.17, “ Information” means all information received from the Authority or the City relating to the Authority or the City or their respective business, other than any such information that is available to the Administrative Agent or any Purchaser on a non- confidential basis prior to disclosure by the Authority or the City and other than information pertaining to this Agreement routinely provided by arrangers to data service providers, including league table providers, that serve the lending industry; provided that, in the case of information received from the Authority or the City after the date hereof, such information is clearly identified at the time of delivery
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as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section 12.17 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
Section 12.18. No Fiduciary Duty, Etc .
(a) Each of the Authority and the City acknowledge s and agrees that no Credit Party will have any obligations except those obligations expressly set forth herein and in the other Financing Documents and each Credit Party is acting solely in the capacity of an arm’s length contractual counterparty to the Authority and the City with respect to the Financing Document s and the transactions contemplated herein and therein and not as a financial advisor or a fiduciary to, or an agent of, the Authority, the City or any other person. Each of the Authority and the City agrees that it will not assert any claim against any Credit Party based on an alleged breach of fiduciary duty by such Credit Party in connection with this Agreement and the transactions contemplated hereby.
Additionally, each of the Authority and the City acknowledges and agrees that no Credit Party is advising the Authority or the City as to any legal, tax, investment, accounting, regulatory or any other matters in any jurisdiction. Each of the Authority and the City shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated herein or in the other Financing Document s, and the Credit Parties shall have no responsibility or liability to the Authority or the City with respect thereto. (b) Each of the Authority and the City further acknowledges and agree s that each Credit Party, together with its Affiliates, in addition to providing or participating in commercial lending facilities such as that provided hereunder, is a full-service securities or banking firm engaged in securities trading and brokerage activities as well as providing investment banking and other financial services. In the ordinary course of business, any Credit Party may provide investment banking and other financia l services to, and/or acquire, hold or sell, for its own accounts and the acc ounts of customers, equity, debt and other securities and financial instruments (including bank loans and other obligations) of, the Authority, the City and other companies with which the Authority and the City may have commercial or other relationships. With respect to any securities and/or financial instruments so held by any Credit Party or any of its customers, all rights in respect of such securities and financial instruments, including any voting rights, w ill be exercised by the holder of the rights, in its sole discretion.
(c) In addition, each of the Authority and the City acknowledges and agree s that each Credit Party and its A ffiliates may be providing debt financing, equity capital or other services (including financial advisory services) to other companies in respect of which the Authority or the City may have conflicting interests regarding the transactions described herein and otherwise. No Credit Party will use confidential information obtained from the Authority or the City by virtue of the transactions contemplated by the Financing Documents or its other relationships with the Authority or the City in connection with the performance by such Credit Party of services for other companies, and no Credit Party will furnish any such information to other companies . Each of the Authority and the City also acknowledges that no Credit Party has any obligation to use in connection with the transactions contemplated by the Financing Document s, or to furnish to the Authority or the City , confidential information obtained from other companies.
Section 12.19. Acknowledgement and Consent to Bail -In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Financing Document or in any other
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agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Financing Document may be subject to the Write -Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write -Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the effects of any Bail -In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability; (ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such share s or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Financing Document ; or (iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.
Section 12.20. Acknowledgement Regarding Any Supported QFCs . (a) To the extent that the Financing Document s provide support, through a guarantee or otherwise, for Swap Agreements or any other agreement or instrument that is a QFC (such support “QFC Credit Support ” and each such QFC a “Supported QFC ”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd- Frank Wall Street Reform and Consumer Protection Act (togeth er with the regulation s promulgated thereunder, the “ U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Financing Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States).
(b) In the event a Covered Entity that is party to a Supported QFC (each, a “ Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any ri ghts in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective u nder the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Part y or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Financing Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercise d against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Financing Document s were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it
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is understood and agreed that rights and remedies of the parties with respect to a Defaulting Purchaser shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Suppor t.
[SIGNATURES BEGIN ON THE FOLLOWING PAGE]
IN WITNESSWHEREOF, the Parties have causedthis Agreement to be duly executed and delivered by their respective authorized officers asof the day and year first above written.
ANAHEIM PUBLIC FINANCING AUTHORITY
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CITY OF ANAHEIM
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JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By:
Name: James G. Millard
Title: Executive Director
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Purchaser
By:
Name: James G. Millard
Title: Executive Director
Signature Page to Bond Purchase Agreement]
[Signature Page t o Bond Purchase Agreement ]
BANK OF AMERICA, N.A.,
as Purchaser
By: _________________________________________
Name: Monica Sevila
Title: Senior Vice President
Schedule I
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SCHEDULE I
COMMITMENT AMOUNTS AND PERCENTAGES
NAME OF PURCHASER COMMITMENT AMOUNT COMMITMENT PERCENTAGE JPMorgan Chase Bank, National
Association
$225,255,000 69.255%
Bank of America, N.A. $100,000,000 30.745%
Total $325,255,000 100.000%
Exhibit A-1
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EXHIBIT A
FORM OF REQUEST FOR PURCHASE
[Date]
JPMorgan Chase Bank, National Association,
as Administrative Agent
500 Stanton Christiana Road
NCC5, Floor 1
Newark, DE 19713-2107
Telephone: (302) 634-2154
Email: [email protected]
and
[email protected]
Email Address to Fax Queue: [email protected] Physical Fax #: (302) 634-4733
Attention: Sabiha Hossain
With a copy to:
JPMorgan Chase Bank, National Association,
as Administrative Agent
500 Stanton Christiana Road
NCC5, Floor 1
Newark, DE 19713-2107
Attention: Sabiha Hossain
and
Anaheim Public Financing Authority
Anaheim City Hall
200 South Anaheim Boulevard, 6
th Floor
Anaheim, California 92805
Attention: Finance Director
Email: [email protected]
and
City of Anaheim
Anaheim City Hall
200 South Anaheim Boulevard, 6 th Floor
Anaheim, California 92805
Attention: Finance Director
Email: [email protected]
and
U.S. Bank Trust Company, National Association,
Exhibit A-2
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as Trustee
633 West Fifth Street, 24th Floor
Los Angeles, California 90071
Attention: Global Corporate Trust
Email: [email protected]
Ladies and Gentlemen:
Reference is hereby made to th e Bond Purchase Agreement, dated as o f July 25, 2024 ( as amended, supplemented or otherwise modified from time to time, the “ Bond Purchase Agreement”), by and among Anaheim Public Financing Authority (the “ Authority”), the City of Anaheim (the “City”), the purchasers from time to time party thereto (the “ Purchasers”), and JPMorgan Chase Bank, National Association, as administrative agent (the “ Administrative Agent ”). Unless otherwise defined herein, terms defined in the Bond Purchase Agreement and used herein shall have the meanings given to them in the Bond Purchase Agreement .
This notice constitutes a Request for Purchase and the undersigned, [Insert Name of Undersigned], t he [Insert Title of Undersigned] of [the Authority] / [ the Manager (as an Authorized Designee of the Authority pursuant to the Authority Direction Letter) ] hereby gives the Administrative Agent notice irrevocably, pursuant to Section 2.01(c ) (Requests for Purchase ) of the Bond Purchase Agreement, of the Purchase of [ Initial] / [ Incremental] Series 2024A Bonds specified below, and in that connection specifies the following information with respect to such Purchase :
1. Aggregate principal amount of Purchase:1 $_________________.
2. Date of Purchase (which is a Business Day): 2________________.
3. Type of Purchase: 3 ____________________________________.
4. Interest Period: 4 _____________________.
5. Maturity Date of [Initial] / [ Incremental] Series 2024A Bonds: .
6. Use of Proceeds of [Initial] / [ Incremental] Series 2024A Bonds: 5 .
7. Location and number of the account[s] to which proceeds of the requested Purchase are to be disbursed: [NAME OF BANK] (Account No.: ______________)].
1 Must comply with Section 2.01 (d) (Minimum Amounts) of the Bond Purchase Agreement . 2 For Da ily Simple SOFR Bonds , the date should be 5 Business Days after the date of the Request for Purchase . 3 Specify ABR Purchase, Term Benchmark Purchase or RFR Purchase. If no election as to the Type of Purchas e i s specified, then the reques ted Purchase shall be an ABR Purchase. 4 NTD: Applicable to Term Benchmark Purchases only. Shall be subject to the definition of “Interest Period” and can be a period of one, three or six months. Ca nnot extend beyond the a pplicable Maturity Da te. If an Interest Period i s not specified, then the Authority shall be deemed to have selected an Interest Period of one month’s duration. 5 Describe whether the Purchase is to pay Project Costs and/ or Financing Costs .
Exhibit A-3
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The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the Date of Purchase, before and after giving effect thereto:
(a) [the condition specified in clauses (i) and (ii) of Section 4.02(a) (Representations and Warranties ) of the Bond Purchase Agreement has been satisfied on such Date of Purchase; 6] / [the condition specified in clause (iii) of Section 4.02(a) (Representations and Warranties ) of the Bond Purchase Agreement has been satisfied on such Date of Purchase; 7]
(b) [no notice of any false or inaccurate representation has been received by the Manager from the Authority pursuant to Section 7.20 (Notice of Inaccuracy of Authority Representations) or the City pursuant to Section 8.18 (Notice of Inaccuracy of City Representations) of the Bond Purchase Agreement ;8] (c) no Default or Event of Default has occurred and is continuing on such Date of Purchase;
(d) after giving effect to the Purchase requested hereby, the aggregate amount advanced for Financing Costs on the date hereof shall not exceed the Financing Costs Sublimit; 9[and]
(e) after giving effect to the Purchase requested hereby, the aggregate amount of [Initial] / [Incremental] Series 2024A Bonds outstanding shall not exceed the maximum amount specified in the definition o f [“Initial Available Commitment” ] / [“Incremental Available Amount ”] in the Bond Purchase Agreement . [ANAHEIM PUBLIC FINANCING AUTHORITY] /
[ANAHEIM ARENA MANAGEMENT, LLC (in its
capacity as an Authorized Designee of the Authority
pursuant to the Authority Direction Lette r)]
By: _________________________________________
Name: _______________________________________
Title: ________________________________________
6 Insert if the Authority is submitting the Request for Purchase. 7 Insert if the Manager is submitting the Request for Purchase. 8 Insert if the Manager is submitting the Request for Purchase. 9 Insert if the Purchase is to pay Financing Costs .
Exhibit B-1
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EXHIBIT B
FORM OF INTEREST ELECTION REQUEST
[Date]
JPMorgan Chase Bank, National Association,
as Administrative Agent
500 Stanton Christiana Road
NCC5, Floor 1
Newark, DE 19713-2107
Telephone: (302) 634-2154
Email: [email protected]
and
[email protected]
Email Address to Fax Queue: [email protected] Physical Fax #: (302) 634-4733
Attention: Sabiha Hossain
With a copy to:
JPMorgan Chase Bank, National Association,
as Administrative Agent
500 Stanton Christiana Road
NCC5, Floor 1
Newark, DE 19713-2107
Attention: Sabiha Hossain
and
Anaheim Public Financing Authority
Anaheim City Hall
200 South Anaheim Boulevard, 6
th Floor
Anaheim, California 92805
Attention: Finance Director
Email: [email protected]
and
City of Anaheim
Anaheim City Hall
200 South Anaheim Boulevard, 6 th Floor
Anaheim, California 92805
Attention: Finance Director
Email: [email protected]
and
U.S. Bank Trust Company, National Association,
Exhibit B-2
AmericasActive:17009278.15
as Trustee
633 West Fifth Street, 24th Floor
Los Angeles, California 90071
Attention: Global Corporate Trust
Email: [email protected]
Ladies and Gentlemen:
Reference is hereby made to th e Bond Purchase Agreement, dated as o f July 25, 2024 ( as amended, supplemented or otherwise modified from time to time, the “ Bond Purchase Agreement”), by and among Anaheim Public Financing Authority (the “ Authority”), the City of Anaheim (the “City”), the purchasers from time to time party thereto (the “ Purchasers”), and JPMorgan Chase Bank, National Association, as administrative agent (the “ Administrative Agent ”). Unless otherwise defined herein, terms defined in the Bond Purchase Agreement and used herein shall have the meanings given to them in the Bond Purchase Agreement .
This notice constitutes an Interest Election Request and the undersigned, [Insert Name of Undersigned], t he [Insert Title of Undersigned] of [the Authority] / [ the Manager (as an Authorized Designee of the Authority pursuant to the Authority Direction Letter) ] hereby gives the Administrative Agent notice, pursuant to Section 2.07 ( Interest Elections) of the Bond Purchase Agreement, that it requests to convert or continue an existing Purchase under the Bond Purchase Agreement, and in that connection specifies the following information with respect to such conversion or continuation requested hereby :
1. List date, Type, principal amount in dollars and Interest Period (if applicable) of existing Purchase: ___________.
2. Aggregate principal amount of resulting Purchase:
10 $_________________.
3. Effective date of interest election (which is a Business Day): ________________.
4. Type of Purchase:11 ____________________________________.
5. Interest Period and last day thereof (if a Term Benchmark Purchase) : 12 _____________________.
[ANAHEIM PUBLIC FINANCING AUTHORITY] /
[ANAHEIM ARENA MANAGEMENT, LLC ( in its
capacity as an Authorized Designee of the Authority
pursuant to the Authority Direction Letter )]
10 Must comply with Section 2.01 (d) (Minimum Amounts) of the Bond Purchase Agreement . 11 Specify ABR Purchase o r Term Benchma rk Purchase .
12 Applicable to Term Benchmark Purchases only. Shall be subject to the definition of “Interest Period” and can be a period of one, three or six months. Ca nnot extend beyond the a pplicable Ma turity Da te. If a n Interest Period is not specified, then the Authority shall be deemed to have selected an Interest Period of one month’s duration.
Exhibit B-3
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By: _________________________________________
Name: _______________________________________
Title: ________________________________________
Exhibit C-1
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EXHIBIT C
FORM OF ASSIGNMENT AND ASSUMPTION
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used but not defined herein shall have the meanings given to them in th e Bond Purchas e Agreement identified below (as amended, supplemented, or otherwise modified from time to time, the “Bond Purchase Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Bond Purchase Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations in its capacity as a Purchaser under the Bond Purchase Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Purchaser) against any Person, whether known or unknown, arising under or in connection with the Bond Purchase Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”). Su ch sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.
1. Assignor:
2. Assignee:
[and is an Affiliate/Approved Fund of [ identify Purchaser]13]
3. Authority: Anaheim Public Financing Authority
4. Administrative
Agent:
JPMorgan Chase Bank, National Association , as the
administrative agent under the Bond Purchase Agreement
13 Select as applicable.
Exhibit C-2
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5. Bond Purchase
Agreement:
The Bond Purchase Agreement, dated as of July 25, 2024, by and among Anaheim Public Financing Authority, the City of
Anaheim, the Purchasers parties thereto , and JPMorgan Chase Bank, National Association, as Administrative Agent
6. Assigned
Interest14:
AGGREGATE AMOUNT
OF COMMITMENT FOR
ALL PURCHASERS
AMOUNT OF COMMITMENT
ASSIGNED
PERCENTAGE ASSIGNED OF
COMMITMENT 15
AGGREGATE AMOUNT OF
SERIES 2024A BONDS FOR
ALL PURCHASERS
AMOUNT OF SERIES 2024A
BONDS ASSIGNED
PERCENTAGE ASSIGNED OF
SERIES 2024A BONDS16
Effective Date: ______________________ _______, 20___ [TO BE INSERTED BY
ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR .]
The Assignee agrees to deliver to the Administrative Agent a completed Administrative Questionnaire in which the Assignee designates one or more contacts to whom all syndicate-level information (which may contain material non- public information about the Authority, the City , the Manager, TeamCo and their Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws.
The terms set forth in this Assignment and Assumption are hereby agreed to:
[A
SSIGNOR]
[NAME OF ASSIGNOR]
14 Complete applicable table(s).
15 Set forth, to at least 9 decimals, as a percentage of the Commitment of all Purchasers thereunder. 16 Set forth, to at least 9 decimals, as a percentage of the Bonds of all Purchasers thereunder.
Exhibit C-3
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By:
Title:
[ASSIGNEE]
[NAME OF ASSIGNEE]
By:
Title:
[Consented to and] Accepted:17
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By:
Title:
[Consented to:] 18
[NAME OF RELEVANT PARTY]
By:
Title:
17 To be added only if the consent of the Administrative Agent is required by the terms of the Bond Purchas e Agreement.
18 To be added only if the cons ent of the Authority and/or other parties is required by the ter ms of the Bond Purchas e Agreement.
Exhibit C-4
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ANNEX 1
[_______________________]19
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties .
1.1.Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Bond Purchase Agreement, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Bond Purchase Agreement or any collateral thereunder, (iii) the financial condition of the Authority, the City, the Manager, TeamCo or any of their respective Affiliates or any other Person obligated in respect of the Bond Purchase Agreement, (iv) any requirements under applicable law for the Assignee to become a purchaser under the Bond Purchase Agreement or to charge interest at the rate set forth therein fro m time to time, or (v) the performance or observance by the Authority, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under the Bond Purchase Agreement.
1.2.Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Purchaser under the Bond Purchase Agreement, (ii) it satisfies the requirements, if any, specified in the Bond Purchase Agreement and under applicable law that are required to be satisfied by it in order to acquire the Assigned Interest and become a Purchaser, (iii) from and after the Effective Date, it shall be bound by the provisions of the Bond Purchase Agreement as a Purchaser thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Purchaser thereunder, (iv) it is sophisticated wit h respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Bond Purchase Agreement, together with copies of the most recent financial statements delivered pursuant to Section 4.1 ( Financial and Business Information) of the Covenant Agreement, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such an alysis and decision independently and without rel iance on the Administrative Agent, the Assignor or any other Purchaser or any of their respective Related Parties, and (vi) attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of t he Bond Purchase Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, any Arranger, the Assignor or any other Purchaser or any of their
19 Describe Bond Purchas e Agreement at option of Administrative Agent.
Exhibit C-5
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respective Related Parties, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Bond Purchase Agreement, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Bond Purchase Agreement are required to be performed by it as a Purchase r. Without limiting the foregoing, the Assignee represents and warrants, and agrees to, each of the matters set forth in Section 11.06 ( Acknowledgements of Purchasers) of the Bond Purchase Agreement, including that the Financing Documents set out the terms of a bond financing.
2. Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees, and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.
3. G eneral Provisions . This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Acceptance and adoption of the terms of this Assignment and Assumption by the Assignee and the Assignor by Electronic Signature or delivery of an executed counterpart of a signature page of this Assignment and Assumption by any Approved Electronic Platform shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. THIS ASSIGNMENT AND ASSUMPTION S HALL BE GOVERNED BY ,
AND CONSTRUED IN ACCORDANCE WITH , THE LAWS OF THE STATE OF CALIFORNIA WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS PROVISIONS ; PROVIDED THAT THE OBLIGATIONS OF THE
ADMINISTRATIVE AGENT AND THE ASSIGNEE UNDER THIS ASSIGNMENT AND ASSUMPTION SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Exhibit D-1
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EXHIBIT D-1
FORM OF U.S. TAX COMPLIANCE CERTIFICATE (FOR FOREIGN PURCHASERS THAT ARE NOT PARTNERSHIPS FOR U.S. FEDERAL INCOME TAX PURPOSES)
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Purchasers T hat Are Not Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Bond Purchase Agreement, dated as o f July 25, 2024 ( as amended, supplemented or otherwise modified from time to time, the “ Bond Purchase Agreement ”), by and among Anaheim Public Financing Authority (the “ Authority”), the City of Anaheim (the “ City”), the purchasers from time to time party thereto (the “ Purchasers”), and JPMorgan Chase Bank, National Association, as administrative agent (the “ Administrative Agent ”).
Pursuant to the provisions of Section 3.05 ( Withholding of Taxes; Gross -Up) of the Bond Purchase Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Series 2024A Bond(s) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Authority within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Authority as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Authority with a certificate of its non- U.S. Person status on IRS Form W -8BEN or IRS Form W -8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Authority and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Authority and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Bond Purchase Agreement and used herein shall have the meanings given to them in the Bond Purchase Agreement . [NAME OF PURCHASER]
By:
Date: ________ __, 20[ ]
Exhibit D-2
AmericasActive:17009278.15
EXHIBIT D-2
FORM OF U.S. TAX COMPLIANCE CERTIFICATE (FOR FOREIGN PARTICIPANTS THAT ARE NOT PARTNERSHIPS FOR U.S. FEDERAL INCOME TAX PURPOSES)
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Bond Purchase Agreement, dated as of July 25, 2024 ( as amended, supplemented or otherwise modified from time to time, the “ Bond Purchase Agreement ”), by and among Anaheim Public Financing Authority (the “ Authority”), the City of Anaheim (the “ City”), the purchasers from time to time party thereto (the “ Purchasers”), and JPMorgan Chase Bank, National Association, as administrative agent (the “ Administrative Agent ”).
Pursuant to the provisions of Section 3.05 ( Withholding of Taxes; Gross -Up) of the Bond Purchase Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Authority within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the Authority as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Purchaser with a certificate of its non -U.S. Person status on IRS Form W -8BEN or IRS Form W -8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform suc h Purchaser in writing, and (2) the undersigned shall have at all times furnished such Purchaser with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Bond Purchase Agreement and used herein shall have the meanings given to them in the Bond Purchase Agreement . [NAME OF PARTICIPANT]
By:
Date: ________ __, 20[ ]
Exhibit D-3
AmericasActive:17009278.15
EXHIBIT D-3
FORM OF U.S. TAX COMPLIANCE CERTIFICATE (FOR FOREIGN PARTICIPANTS THAT ARE PARTNERSHIPS FOR U.S. FEDERAL INCOME TAX PURPOSES)
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Bond Purchase Agreement, dated as o f July 25, 2024 ( as amended, supplemented or otherwise modified from time to time, the “ Bond Purchase Agreement ”), by and among Anaheim Public Financing Authority (the “ Authority”), the City of Anaheim (the “ City”), the purchasers from time to time party thereto (the “ Purchasers”), and JPMorgan Chase Bank, National Association, as administrative agent (the “ Administrative Agent ”).
Pursuant to the provisions of Section 3.05 ( Withholding of Taxes; Gross -Up) of the Bond Purchase Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direc t or indirect partners/members is a ten percent shareholder of the Authority within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Authority as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Purchaser with IRS Form W -8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W -8BEN or IRS Form W -8BEN-E or (ii) an IRS Form W -8IMY accompanied by an IRS Form W -8BEN or IRS Form W -8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the inf ormation provided on this certificate changes, the undersigned shall promptly so inform such Purchaser and (2) the undersigned shall have at all times furnished such Purchaser with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Bond Purchase Agreement and used herein shall have the meanings given to them in the Bond Purchase Agreement . [NAME OF PARTICIPANT]
By:
Date: ________ __, 20[ ]
Exhibit D-4
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EXHIBIT D-4
FORM OF U.S. TAX COMPLIANCE CERTIFICATE (FOR FOREIGN PURCHASERS THAT ARE PARTNERSHIPS FOR U.S. FEDERAL INCOME TAX PURPOSES)
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Purchaser s That Are Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Bond Purchase Agreement, dated as o f July 25, 2024 ( as amended, supplemented or otherwise modified from time to time, the “ Bond Purchase Agreement ”), by and among Anaheim Public Financing Authority (the “ Authority”), the City of Anaheim (the “ City”), the purchasers from time to time party thereto (the “ Purchasers”), and JPMorgan Chase Bank, National Association, as administrative agent (the “ Administrative Agent ”).
Pursuant to the provisions of Section 3.05 ( Withholding of Taxes; Gross -Up) of the Bond Purchase Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Series 2024A Bond(s) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Series 2024A Bond(s), (iii) with respect to the extension of credit pursuant to the Bond Purchase Agreement or any other Financing Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement en tered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Authority within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Authority as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Authority with IRS Form W -8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W -8BEN or Form W -8BEN-E or (ii) an IRS Form W - 8IMY accompanied by an IRS Form W -8BEN or IRS W- 8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Authority and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Authority and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Bond Purchase Agreement and used herein shall have the meanings given to them in the Bond Purchase Agreement . [NAME OF PARTICIPANT]
By:
Date: ________ __, 20[ ]
Exhibit E-1
AmericasActive:17009278.15
EXHIBIT E
FORM OF INVESTOR LETTER
[Date]
Anaheim Public Financing Authority
Anaheim City Hall
200 South Anaheim Boulevard, 6 th Floor
Anaheim, California 92805
Attention: Finance Director
Email: [email protected]
City of Anaheim
Anaheim City Hall
200 South Anaheim Boulevard, 6
th Floor
Anaheim, California 92805
Attention: Finance Director
Email: [email protected]
With a copy to:
U.S. Bank Trust Company, National Association,
as Trustee
633 West Fifth Street, 24th Floor
Los Angeles, California 90071
Attention: Global Corporate Trust
Email: [email protected]
and
JPMorgan Chase Bank, National Association,
as Administrative Agent
383 Madison Avenue
3rd Floor (Mail Code NY1-M165)
New York, New York 10179
Attention: James G. Millard, Executive Director
Email: [email protected]
and
[Insert Name of Assignor]
[______________]
Attention: ______________
Email: __________
Re: Anaheim Public Financing Authority
Taxable Lease Revenue Bond s
Exhibit E-2
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(Anaheim Arena Improvement Project)
2024 Series A
Ladies and Gentlemen:
The undersigned [INSERT NAME OF ASSIGNEE ] (the “Assignee”, the “ undersigned”, “us ”, “we” or “our”, as applicable) is providing t his letter to the Anaheim Public Financing Authority (“you” or the “ Authority”) with certain representations and agreements with respect to our purchase of $__________ in the aggregate principal amount of the [ Initial] / [ Incremental] Series 2024A Bonds dated their date of issuance (the “ Bonds”) pursuant to that certain Bond Purchase Agreement, dated as of July 25, 2024 (the “Bond Purchase Agreement”), by and among the Authority, the City of Anaheim (the “City”), the purchasers from time to time party thereto (the “ Purchasers”), and JPMorgan Chase Bank, National Association, as administrative agent (the “Administrative Agent ”). Capitalized terms used but not defined herein shall have the meanings given to them in the Bond Purchase Agreement .
The [Initial] / [ Incremental] Series 2024A Bonds have been issued under and secured in the manner set forth pursuant to (i) the Master Indenture, dated as of July 1, 2024, by and among the Authority, the City and U.S. Bank Trust Company, National Association, as trustee (the “ Trustee”), as supplemented by the First Supplemental Indenture, dated a s o f July 1, 2024, by and among the Authority, the City and the Trustee (as so supplemented, the “ Indenture”); (ii) the Assignment Agreement, dated as o f July 1, 2024, by and between the Authority and the Trustee (the “ Assignmen t Agreement”); and (iii) the Pledge and Security Agreement, dated as of July 25, 2024, by and among Anaheim Arena Management, LLC (the “Manager ”), Anaheim Real Estate Partners , LLC (the “Developer”) and the Trustee (the “Security Agreement ”).
In connection with our purchase of the Bonds pursuant to the Bond Purchase Agreement, w e hereby represent and warrant to you and agree with you as follows:
1. We understand that the Bonds have not been registered pursuant to the Securities Act of 1933, as amended (the “ 1933 Act ”), the securities laws of any state nor has the Indenture been qualified pursuant to the Trust Indenture Act of 1939, as amended, in reliance upon certain exemptions set forth therein. We acknowledge that th e Bonds (i) are not being registered or otherwise qualified for sale under the “blue sky” laws and regulations of any state, (ii) will not be listed on any securities exchange, and (iii) will not carry a rating from any rating service.
2. We have not offered, offered to sell, offered for sale or sold any of the Bonds by means of any form of general solicitation or general advertising, and we are not an underwriter of the Bonds within the meaning of Section 2(11) of the 1933 Act.
3. We have sufficient knowledge and experience in financial and business matters, including purchase and ownership of municipa l and other taxable lease revenue bond obligations, to be able to evaluate the risks and merits of the investment represented by the purchase of the Bonds.
4. We have authority to purchase the Bonds and to execute this letter and any other instruments and documents required to be executed by the purchaser in connection with the purchase of the Bonds.
Exhibit E-3
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5. The undersigned is a duly appointed, qualified and acting representative of the Assignee and is authorized to cause the Assignee to make the certifications, representations and warranties contained herein by execution of this letter on behalf of the Assignee .
6. The Assignee is [a “qualified institutional buyer” as defined in Rule 144A promulgated under the 1933 Act ] / [ an institutional “accredited investor” as defined in Rule 501 of Regulation D under the 1933 Act 20] and is able to bear the economic risks of such investment.
7. The undersigned understands that no official statement, prospectus, offering circular, or other comprehensive offering statement is being provided with respect to the Bonds. The undersigned has made its own inquiry and analysis with respect to the A uthority, the City, the Bonds and the security therefor, and other material factors affecting the security for and payment of the Bonds.
8. The undersigned acknowledges that it has either been supplied with or been given access to information (including financial statements and other financial information) regarding the Authority, the City, the Manager, TeamCo and the Project, to which a reasonable investor would attach significance in making investment decisions, and has had the opportunity to ask questions and receive answers from knowledgeable individuals concerning the Authority, the Bonds and the security therefor, so that as a reasonable investor, it has been able to make its decision to purchase the Bonds.
9. The undersigned acknowledges, agrees and confirm s that the Bonds are payable solely from the Account Collateral and the Lease Revenues available therefor and not from any other funds of the Authority or the City.
10. The Bonds are being acquired by the Assignee for investment for its own account and not with a present view toward resale or distribution; provided, however, that the Assignee reserves the right to sell, transfer or redistribute th e Bonds, but agrees that any such sale, transfer or distribution by the Assignee shall be to a Person:
(a) that is an affiliate of the Assignee ;
(b) that is a trust or other custodial arrangement established by the Assignee or one of its affiliates, the owners of any beneficial interest in which are limited to qualified institutional buyers; or
(c) that the Assignee reasonably believes to be a qualified institutional buyer.
Very truly yours,
[INSERT NAME OF ASSIGNEE]
By:
Name:
Title:
20 Applicable only following an Event of Default.
Exhibit F-1
AmericasActive:17009278.15
EXHIBIT F
FORM OF JOINDER AGREEMENT
This JOINDER AGREEMENT , dated [________, 20__] (this “ Agreement”), is entered into by [INSERT NAME OF PURCHASER] (in such capacity and together with its successors and permitted assigns in such capacity, the “ Joining Party”) and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely in its capacity as administrative agent for the Purchasers and the Series 2024A Bondholders (together with its successors and assigns in such capacity, the “Administrative Agent ”), and acknowledged by ANAHEIM ARENA MANAGEMENT, LLC , a limited liability company duly organized and existing under the laws of the State of California (in its capacity as an Authorized Designee of the Authority pursuant to the Authority Direction Letter , the “ Manager”).
Reference is made to the Bond Purchase Agreement, dated as o f July 25, 2024 ( as amended, amended and restated, supplemented or otherwise modified from time to time , the “Bond Purchase Agreement”), by and among Anaheim Public Financing Authority (the “ Authority”), the City of Anaheim (the “ City”), the purchasers from time to time party thereto (the “ Purchasers”), and the Administrative Agent. Capitalized terms used herein without definition shall have the meaning s assigned thereto in the Bond Purchase Agreement.
By executing this Agreement, the Joining Party hereby becomes a party to the Bond Purchase Agreement as a Purchaser and is hereby deemed to be a “Purchaser”, a “Series 2024A Bondholder” and an “Owner” of Series 2024A Bonds under the Bond Purchase Agreement and the other Financing Documents. Accordingly, the Joining Part y hereby agrees as follows with the Authority, the City, the Manager, the Trustee, the Administrative Agent, and each other party to the Bond Purchase Agreement:
1. The Joining Party hereby acknowledges, agrees and confirms that, by its execution of this Agreement, the Joining Party will be a party to the Bond Purchase Agreement and, from and after the date hereof, shall have all of the rights and obligations of a Purchaser and a Series 2024A Bondholder thereunder as if it had executed the Bond Purchase Agreement.
2. The Joining Party hereby ratifies, as of the date hereof, and agrees to comply with and be bound by, all of the terms, provisions and conditions applicable to a Purchaser, a Series 2024A Bondholder and an Owner of Series 2024A Bonds contained in the Bond Purchase Agreement and the other Financing Documents, as the case may be.
3. The Joining Party hereby acknowledges, agrees and confirms that all Obligations are secured ratably by the Liens granted to the Trustee (for the benefit of the Bondholders) and that the Liens will be enforceable by the Trustee for the benefit of all Bondholders ratably as contemplated by the Indenture and the other Collateral Documents.
4. The Joining Party hereby acknowledges, agrees and confirms that the Series 2024A Bonds are payable solely from the Account Collateral and the Lease Revenues available therefor and not from any other funds of the Authority or the City.
5. The address of the Joining Party for purposes of all notices and other communications under the Bond Purchase Agreement and the other Financing Documents is set forth below:
Exhibit F-2
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[________]
[________]
[________]
Attention: [________]
Telephone: [________]
Facsimile: [________]
This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of an executed counterpar t to this Agreement by facsimile transmission or electronic transmission in “.pdf” format shall be as effective as delivery of a manually signed original.
THIS AGREEMENT SHALL BE GOVERNED BY , AND CONSTRUED IN ACCORDANCE WITH , THE LAWS OF THE STATE OF CALIFORNIA WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS PROVISIONS ; PROVIDED THAT
THE OBLIGATIONS OF THE ADMINISTRATIVE AGENT AND THE JOINING PARTY UNDER THIS AGREEMENT AND THE BOND PURCHASE AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE JOINING PARTY HEREBY WAIVES ITS RIGHT TO
A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE
BOND PURCHASE AGREEMENT, THE FINANCING DOCUMENTS OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY , INCLUDING CONTRACT CLAIMS , TORT CLAIMS , BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CL AIMS.
IN WITNESS WHEREOF , each of the Joining Party and the Administrative Agent has caused this Agreement to be duly executed by its authorized representative, and the Manager has caused the same to be accepted by its authorized representative, as of the date first written above. [INSERT NAME OF J OINING PARTY]
By: _________________________________________
Name:
Title:
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, as Administrative Agent
By: _________________________________________
Name:
Title:
Acknowledged and Accepted:
ANAHEIM ARENA MANAGEMENT, LLC,
as Manager (in its capacity as an Authorized Designee
of the Authority pursuant to the Authority Direction Letter) By: ___________________________
Name: _________________________
Title: __________________________
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Execution Version
AMENDMENT NO. 1 TO BOND PURCHASE AGREEMENT
AMENDMENT NO. 1 TO BOND PURCHASE AGREEMENT, dated as o f August 1, 2024 ( this “Amendment”), by and among A NAHEIM PUBLIC FINANCING AUTHORITY, a joint exercise of powers entity duly organized and existing under the laws of the State of California (the “Authority”), CITY OF ANAHEIM, a municipal corporation and charter city duly organized and existing under and by virtue of its charter and the Constitution and laws of the State of California (the “City”), T
HE PURCHASERS PARTY HERETO, and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Administrative Agent (in such capacity, the “ Administrative Agent ”).
RECITALS
WHEREAS, the Authority and the City are party to the Bond Purchase Agreement, dated as of July 25, 2024, by and among the Authority, the City, the Purchasers, and the Administrative Agent (as in effect immediately prior to the date hereof, the “Existing Bond Purchase Agreement ” and, as amended hereby and as otherwise further amended, supplemented or otherwise modified from time to time hereafter, the “Bond Purchase Agreement ”);
W
HEREAS, the Authority, the City, the Purchasers and the Administrative Agent wish to make certain amendmen ts to the Existing Bond Purchase Agreement as and to the extent set forth herein; and
WHEREAS, this Amendment shall constitute a Financing D ocument and these Recitals shall be construed as part of this Amendment .
Now, THEREFORE, in consideration of the premises and of the mutual agreements and covenants contained herein and for other valuable consideration, the receipt whereof is hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions; Construction . Except to the extent otherwise specified herein, capitalized terms used in this Amendment shall have the same meanings ascribed to them in the Bond Purchase Agreement . The rules o f construction set forth in Section 1.03 ( Construction) of the Bond Purchase Agreement are hereby incorporated by reference herein, mutatis mutandis.
2. Amendment. With effect from the date hereof, the parties hereto hereby agree to amend the Existing Bond Purchase Agreement as follows :
(a) The definition of “ Interest Payment Date ” in Section 1.01 ( Certain Defined Terms) of the Existing Bond Purchase Agreement is hereby deleted in its entirety and replaced with the following:
“Interest Payment Date ” means (a) with respect to any ABR Purchase, the last day of each March, June, September and December and the applicable Maturity Date, (b) with respect to any RFR Purchase, (1) each date that is on the numerically corresponding day in each calendar month that is one month after the Purchase of such RFR Purchase (or, if there is no such numerically corresponding day in such month, then the last day of such month) and (2) the
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2 applicable Maturity Date, and ( c) with respect to any Term Benchmark Purchase, the first day of each June and December and the applicable Maturity Date.
3. Reference to and Effect Upon the Bond Purchase Agreement and other Financing Documents. The parties hereto hereby acknowledge and agree as follows:
3.1. Except for the amendment in Section 2 ( Amendment) above, all of the other terms and conditions of the Bond Purchase Agreement and each other Financing Document shall remain in full force and effect and are hereby ratified and confirmed in all respects.
3.2. As of the date hereof, each reference in the Bond Purchase Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of similar import shall mean and be a reference to the Existing Bond Purchase Agreement as amended by this Amendment, and each reference to the Bond Purchase Agreement in any other Financing Document shall mean and be a reference to the Existing Bond Purchase Agreemen t as amended by this Amendment .
3.3. This Amendment constitutes a Financing Document.
4. Costs and Expenses . As provided in Section 10.01 ( Expenses) of the Bond Purchase Agreement, the Authority shall pay all reasonable out -of-pocket expenses incurred by the Administrative Agent (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent) in connection with the preparation, execution and delivery of this Amendment. All amounts due under this Section 4 shall be paid by the Authority solely from the Account Collateral and the Lease Revenues available therefor.
5. GOVERNING LAW . T HIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH , THE LAWS OF THE STATE OF CALIFORNIA WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS PROVISIONS ; PROVIDED THAT THE OBLIGATIONS OF THE ADMINISTRATIVE AGENT
AND EACH PURCHASER UNDER THI S AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
6. Headings. Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.
7. Counterparts; Electronic Execution . This Amendment may be executed in any number of counterparts and by the different parties hereto on separate counterparts each of which, when so executed, shall be deemed an original, but all such counterparts shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by e -mail with a pdf copy or other replicating image attached, will be effective as delivery of a manually executed counterpart of this Amendment, and any printed or copied version of any signature page so delivered will have the same force and effect as an originally signed version of such signature page.
[Signature Pages Follow ]
[Signature Page to Amendment No. 1 to Bond Purchase Agreement]
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Purchaser
By: _______________________________
Name: James G. Millard
Title: Executive Director
BANK OF AMERICA, N.A.,
as Purchaser
By: _______________________________
Name: Monica Sevila
Title: Senior Vice President