Cross Acceleration . The Commission (i) defaults in the observance or performance of any agreement or condition relating to any Wastewater En terprise Debt or contained in any instrument or agreement evidencing, securing or rela ting thereto, or any other default, event of default or similar event occurs or condition exists, 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) any such Wastewater Enterprise Debt to become immediately due and payable in full as th e result of the acceleration, mandatory redemption or mandatory tender of such Wastewater Enterprise Debt; or (ii) defaults in the observance or performance of any agreement or condition relating to any Debt (oth er than Wastewater Enterprise Debt) aggregating in excess of $10,000,000, or contained in any instrument or agreement evidencing, securing or relating thereto, or any other default, event of default or similar event occurs or condition exists, 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) any such Debt to become immediately due and payable in full as the result of the acceleration, mandatory redemption or mandatory tender of such Debt (other than Wastewater Enterprise Debt).
Remedies
(a) Immediate Termination Events . In the case any Event of Default which is an Immediate Termination Event has occurred, (i) the Commitment will immediately and automatically terminate, without notice from TD Bank, and (ii) all amounts due under the TD Bank A-4 Liquidity Facility, the Fee Letter and under the Revolving Note and the Term Note will immediately become due and payable; provided, that the Event of Default described in “TD BANK A-4 LIQUIDITY FACILITY—Immediate Terminati on Events—Payments.” will not qualify as an “Immediate Termination Event” under the TD Bank A-4 Liquidity Facility if the failure to pay the principal of, or interest on, the Revolving Note, the Term Note, any Advance or any Term Loan is due solely to an acceleration thereof by TD Bank for any reason other than the failure to pay the principal of, or interest on, the Revolving Note, the Term Note, any Advance or any Term Loan; provided, further, that the Event of Default described in TD BANK A-4 LIQUIDITY FACILITY— Immediate Termination Events—Cross- Default to Senior Debt or Parity Debt.” will not qualify as an “Immediate Termination Event” under the TD Bank A-4 Liquidity Facility if the failure to pay the principal of, or interest on, such Senior Debt or Parity Debt is due solely to an acceleration thereof by a provider of credit enhancement or liquidity support with respect thereto for any reason other than the failure to pay the principal of, or interest on, such Senior Debt or Parity Debt. (b) Suspension Events . In the case of a Default described in “TD BANK A-4 LIQUIDITY FACILITY—Other Events of Default—Ot her Insolvency.” (a “Suspension Event”),
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the Commitment will be immediately suspended w ithout notice or demand and, thereafter, TD Bank will be under no obligation to make Advances or Term Loans under the TD Bank A-4 Liquidity Facility until the Available Commitment is reinstated as described in the TD Bank A-4 Liquidity Facility. Promptly upon the occurren ce of any such Suspension Event, TD Bank will notify the Commission, the Series A-4 Issuing and Paying Agent and the Dealer of such suspension and the effective date of such suspension in wr iting by facsimile, promptly confirmed by regular mail; provided, that TD Bank will incur no liability of any kind by reason of its failure to give such notice and such failure will in no way affect th e suspension of the Available Commitment or its obligation to make Advances or Term Loans pursuant to the TD Bank A-4 Liquidity Facility. The Commission will promptly direct the Series A-4 Issuing and Paying Agent to notify all Holders of a suspension of the obligation of TD Bank to ma ke Advances and Term Loans as a result of the occurrence of such Suspension Event. Upon the occurrence of a Suspension Event, the Commitment will immediately and automatically suspended and remain suspended until the case, proceeding or other action referred to therein is either dismissed, discharged or bonded within sixty (60) days from the commencement of such case, proceeding or action, or the date on which TD Bank’s obligations under the TD Bank A-4 Liquidity Facility have terminated or expired in accordance with the terms hereof (the “Termination Date”) occurs, whichever is first. In the event that said Suspension Event has been dismissed, di scharged or bonded within the sixty (60) day period described therein and prior to the Termin ation Date, then the Available Commitment and the obligation of TD Bank to make Advances and Te rm Loans will be reinstated and the terms of the TD Bank A-4 Liquidity Facility will continue in full force and effect as if there had been no such suspension (unless the Commitment Period will otherwise have been terminated, suspended or expired as provided in the TD Bank A-4 Liquidity Facility). In the event that said Suspension Event is not dismissed, discharged or bonded within said sixty (60) day period when the Termination Date occurs, then the Available Commitment and the obligation of TD Bank to make Advances and Term Loans will terminate on the Te rmination Date without notice or demand and, thereafter, TD Bank will be under no obligation to make such Advances and Term Loans under the TD Bank A-4 Liquidity Facility.
(c) All Events of Default. In the case of any Event of Default, including any Immediate Termination Event or a Suspension Event that has occurred and is continuing, TD Bank (i) may by written notice to the Commission declare all amounts due under the TD Bank A-4 Liquidity Facility, under the Fee Letter or under the Revolving Note or the Term Note to be immediately due and payable, whereupon the same will immediately become due and payable, (ii) may by written notice to the Commission and the Series A-4 I ssuing and Paying Agent (an “EoD No-Issuance Notice”) in substantially the form of Exhibit H to the TD Bank A-4 Liquidity Facility declare the Available Principal Commitment to be reduced to the principal amount of Series A-4 Notes then outstanding and to be permanently reduced furthe r on the maturity date of each such Series A-4 Notes by an amount equal to the principal amount of such Series A-4 Notes with the Commitment to be terminated upon the last maturity date a pplicable to all such Series A-4 Notes and the Available Interest Commitment shall immediately be reduced to the amount of interest to accrue on such outstanding Series A-4 Notes, and the Ava ilable Commitment shall be further reduced in a similar manner as and when the Series A-4 Notes mature, (iii) may petition a court of competent jurisdiction to issue a mandamus order to the Commission to compel speci fic performance of the covenants of the Commission contained in the Resolutions or herein and (iv) may pursue any other rights or remedies under the TD Bank A-4 Liquidity Facility, the Fee Letter, the Resolutions, any other Basic Document, applicable law or otherwise. Except as expressly provided in the TD Bank A-4 Liquidity Facility, procurement, demand, pr otest and all other notices of every kind are expressly waived in the TD Bank A-4 Liquidity Facility. Following receipt of an EoD No-Issuance Notice, the Commission shall not issue any additional Series A-4 Notes.
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(d) Timing of EoD No-Issuance Notice. An EoD No-Issuance Notice that is received by the Commission at or before 3:00 p.m. (New York City time) will be effective when received.
An EoD No-Issuance Notice that is received by Commission after 3:00 p.m. (New York City time) will not be effective until the opening of business on the next succeeding Business Day. (e) Copies of Notices. Concurrently with the occurrence of an Immediate Termination Event pursuant to the TD Bank A-4 Liquidity F acility or an EoD No-Issuance Notice pursuant to the TD Bank A-4 Liquidity Facility, the Commission will give notice to the Series A-4 Issuing and Paying Agent and the Dealers.
In addition, concurrently with giving such notice to the Commission and the Series A-4 Issuing and Paying Agent, TD Bank will provide a copy thereof to the Dealers at their respective addresses referred to in the TD Bank A-4 Liquidity Facility; provided, howe ver, that TD Bank will not incur any liability as a result of its failure to provide a copy of such a notice in accordance with this sentence.
Related Covenants
Under the related Series A-4 Issuing and Paying Agent Agreement, the Commission covenants to maintain in effect the TD Bank A-4 Liquidity Facility or an Alternate Facility meeting the requirements of such Series A-4 Issuing and Paying Agent Agreement at all times that Series A-4 Notes are Outstanding thereunder. The Commission further covenants that if it is unable to obtain a commitment for an Alternate Facility at least 90 days prior to the Commitment Expiration Date, it shall use its best efforts, to the extent permitted by law, to endeavor to re finance such outstanding Series A- 4 Notes or Bank Notes, as the case may be.
The Commission shall deliver written notice of a proposed Alternate Facility to the Series A-4 Issuing and Paying Agent, TD Bank, the City and each Dealer not less than 45 days prior to the substitution date. The Series A-4 Issuing and Paying Agent shall deliver written notice of such substitution to the registered Holders of Series A-4 Notes at least 30 days prior to the substitution date. [Remainder of page left blank intentionally.]
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BANK FACILITY FOR THE SERIES A-5 COMMERCIAL PAPER NOTES
TRUIST BANK A-5 LETTER OF CREDIT
AND TRUIST BANK A-5 REIMBURSEMENT AGREEMENT
The Commission has entered into a reimbursement agreement (the Truist Bank A-5 Reimbursement Agreement”) with Truist Bank (“Truist Bank”), pursu ant to which Truist Bank will issue an irrevocable direct-pay letter of credit (the “Truist Bank A-5 Letter of Credit”) for the account of the Commission supporting the payment of principal of and interest due thereon at matu rity or upon acceleration of Series A-5 Notes. The Series A-5 Notes are issued pursuant to the terms of the Amended and Restated Issuing and Paying Agent Agreement, dated as of January 1, 2026 (the “Series A-5 Issuing and Paying Agent Agreement”), by and between U.S. Bank Trust Company, National Association (as successor in interest to U.S. Bank National Association), as issuing and paying agent (the “Series A-5 Issuing and Paying Agent”), and the Commission.
The following description is a summary of certain provisions of the Truist Bank A-5 Letter of Credit and the Truist Bank A-5 Reimbursement Agreem ent. Such summary does not purport to be a complete description or restatement of the material provisions of the Truist Bank A-5 Letter of Credit or the Truist Bank A-5 Reimbursement Agreement. Invest ors should obtain and review copies of the Truist Bank A-5 Letter of Credit and the Truist Bank A-5 Re imbursement Agreement in order to understand all of the terms of those documents. All capitalized terms appearing under this heading “TRUIST BANK A- 5 LETTER OF CREDIT AND TRUIST BANK A-5 REIM BURSEMENT AGREEMENT” shall have the meanings assigned to them in the Truist Bank A-5 Reimbursement Agreement.
Truist Bank A-5 Letter of Credit
The Truist Bank A-5 Letter of Credit is an irre vocable transferable obligation of Truist Bank and supports the payment of principal of and interest on maturing Series A-5 Notes only. The Truist Bank A- 5 Letter of Credit may not be drawn on for any othe r purpose. The Truist Bank A-5 Letter of Credit will be issued in an amount equal to the maximum prin cipal amount of $125,000,000 of the Series A-5 Notes plus 270 days’ interest thereon at the rate of 12% per annum calculated on the basis of a year of 360 days (the “Stated Amount”). The Series A-5 Issuing and Paying Agent is authorized to draw on the Truist Bank A-5 Letter of Credit in an aggregate amount not to exceed the Stated Amount of the Truist Bank A-5 Letter of Credit and in accordance with the terms and conditions and, subject to the reductions and reinstatements as described therein, in amounts as set forth in the Truist Bank A-5 Letter of Credit, in one or more Drawings (as defined in the Truist Bank A-5 Letter of Credit), payable as set forth in the Truist Bank A-5 Letter of Credit on any Business Day (as defined in the Truist Bank A-5 Letter of Credit), by presentation of the appropriate certifications, (i) for the payment at maturity of the principal of and interest on Series A-5 Notes or (ii) for the payment at maturity of the principal of and interest to maturity on Series A-5 Notes that otherwise mature on or after the date that the Series A-5 Issuing and Paying Agent receives a Final Drawing Notice (as defined in the Truist Bank A-5 Letter of Credit) from Truist Bank.
Upon Truist Bank honoring any Drawing, the Stated Amount and the amount available to be drawn under the Truist Bank A-5 Letter of Credit by the Series A-5 Issuing and Paying Agent pursuant to any subsequent Drawing shall be automatically decreased by an amount equal to the amount of such Drawing.
In connection therewith, the Stated Amount shall be increased when and to the extent, but only when and to the extent (i) (A) of transfer by the Series A-5 Issuing and Paying Agent to Truist Bank on the date such Drawing is honored of proceeds of Series A-5 Notes issued on such date or (B) the Series A-5 Issuing and Paying Agent receives written notice from Truist Bank that Truist Bank has been reimbursed by or on behalf of the Commission for any amount drawn under the Truist Bank A-5 Letter of Credit by any
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Drawing, and (ii) that the Series A-5 Issuing and Paying Agent has not received a No-Issuance Notice (as defined in the Truist Bank A-5 Letter of Credit) from Truist Bank.
The Truist Bank A-5 Letter of Credit shall expire at the close of business of Truist Bank, on the date (the earliest of such date to occur referred to as the “Termination Date”) which is the earliest of (i) January 22, 2029 (unless extended pursua nt to the terms of the Truist Bank A-5 Letter of Credit), (ii) the later of the date on which Truist Bank receives written notice from the Series A-5 Issuing and Paying Agent that an Alternate Facility (as defined in the Series A-5 Issuing and Paying Agent Agreement) has been substituted for the Truist Bank A-5 Letter of Credit in accordance with the Series A-5 Issuing and Paying Agent Agreement and the effective date of any such Alternate Facility (after Truist Bank honors any properly presented and conforming Draw ing on such date), (iii) the date on which Truist Bank receives written notice from the Series A-5 Issuing and Paying Agent that there are no longer any Series A-5 Notes Outstanding within the meaning of the Series A-5 Issuing and Paying Agent Agreement and that the Series A-5 Issuing and Paying Agent elects to terminate the Truist Bank A-5 Letter of Credit, and (iv) the earlier of (a) the fifteenth (15th) calendar day after the date on which the Series A-5 Issuing and Paying Agent receives the Final Drawing Notice, and (b) the date on which the Drawing resulti ng from the delivery of the Final Drawing Notice is honored under the Truist Bank A-5 Letter of Credit.
Truist Bank A-5 Reimbursement Agreement Events of Default If any of the following events occurs, each such event will be an “Event of Default” under the Truist Bank A-5 Reimbursement Agreement:
(a) the Commission fails to pay, or cause to be paid, as and when due, (i) any Reimbursement Obligation (as defined in the Truist Bank A-5 Reimbursement Agreement), or (ii) any Obligation (as defined in the Truist Bank A-5 Reimbursement Agreement) (other than a Reimbursement Obligation) under the Truist Ba nk A-5 Reimbursement Agreement or under the Fee Agreement (as defined in the Truist Bank A- 5 Reimbursement Agreement) and, in such case, such failure continues for five (5) Business Days (as defined in the Truist Bank A-5 Reimbursement Agreement);
(b) any representation or warranty made by or on behalf of the Commission in the Truist Bank A-5 Reimbursement Agreement or in any other Basic Document (as defined in the Truist Bank A-5 Reimbursement Agreement) or in any certificate or statement delivered thereunder is incorrect or untrue in any material respect when made or deemed to have been made or delivered; (c) the Commission defaults in the due perfo rmance or observance of certain no cure period covenants set forth in the Truist Bank A-5 Reimbursement Agreement; (d) the Commission defaults in the due perfo rmance or observance of any other term, covenant or agreement contained in the Truist Bank A-5 Reimbursement Agreement or any other Basic Document and such default remains unremedie d for a period of thirty (30) days after the occurrence thereof;
(e) the Commission or the City and County of San Francisco, directly or indirectly, (i) has entered involuntarily against it an order for relief under the United States Bankruptcy Code, as amended, (ii) becomes insolvent or does not pay, or is unable to pay, or admits in writing its inability to pay, its debts generally as they beco me due, (iii) makes an assignment for the benefit of creditors, (iv) applies for, seeks, consents to, or acquiesces in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial part of its Property (as defined in the Truist Bank A-5 Reimburseme nt Agreement), (v) institutes any proceeding
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seeking to have entered against it an order for re lief 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 fails to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (vi) takes any corporate action in furtherance of any matte r described in clauses (i) through (v) above, or (vii) fails to contest in good faith any appointment or proceeding described in paragraph (f) below; (f) a custodian, receiver, trustee, examiner, liquidator or similar official is appointed for the Commission or the City and County of San Francisco or any substantial part of its Property, or a proceeding described in clause (v) of paragraph (e) above is instituted against the Commission or the City and County of San Francisco and such proceeding continues undischarged, undismissed and unstayed for a period of thirty (30) days;
(g) a debt moratorium, debt restructuring, de bt adjustment or comparable restriction is imposed on the repayment when due and payable of the principal of or interest on any Debt (as defined in the Truist Bank A-5 Reimbursement Agreement) of the Commission by the Commission or any Governmental Authority (as defined in the Truist Bank A-5 Reimbursement Agreement) with appropriate jurisdiction;
(h) any material provision of the Truist Bank A-5 Reimbursement Agreement, the Charter or any other Basic Document at any time for any reason ceases to be valid and binding on the Commission as a result of any legislative or administrative action by a Governmental Authority with competent jurisdiction or sh all be declared in a final non appealable judgment by any court with competent jurisdiction to be null and void, invalid, or une nforceable, or the validity or enforceability thereof is public ly contested by the Commission, or the Commission publicly contests the validity or enforceability of any obl igation to pay Wastewater Enterprise Debt, including, without limitation, the Wastewater Bonds Indenture, or any Authorized Representative publicly repudiates or otherwise denies in writing that it has any further liability or obligation under or with respect to any provision of the Truist Bank A-5 Reimbursement Agreement, the Charter, any other Basic Document or any operative docum ent related to Wastewater Enterprise Debt (as defined in the Truist Bank A-5 Reimbursement Agreement), including, without limitation, the Wastewater Bonds Indenture (as defined in the Truist Bank A-5 Reimbursement Agreement); (i) dissolution or termination of the existence of the Commission; (j) the Commission (i) defaults on the payment of the principal of or interest on any Wastewater Enterprise Debt, beyond the period of grace, if any, provided in the instrument or agreement under which such Wastewat er Enterprise Debt was created or incurred; or (ii) defaults in the observance or performance of any agr eement or condition relating to any Wastewater Enterprise Debt, including, without limitation, any Bank Agreement, or contained in any instrument or agreement evidencing, securing or relating theret o, or any other default, event of default or similar event occurs or condition exists, the effect of which default, event of default or similar event or condition is to permit (determined without rega rd to whether any notice is required) any such Wastewater Enterprise Debt to become immediat ely due and payable in full as the result of the acceleration, mandatory redemption or mandatory tender of such Wastewater Enterprise Debt; (k) the Commission (i) defaults on the payment of the principal of or interest on any Debt (other than Wastewater Enterprise Debt ) aggregating in excess of $10,000,000 beyond the period of grace, if any, provided in the instrument or agreement under which such Debt (other than Wastewater Enterprise Debt) was created or incu rred; or (ii) defaults in the observance or
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performance of any agreement or condition relating to any Debt (other than Wastewater Enterprise Debt) aggregating in excess of $10,000,000, or contained in any instrument or agreement evidencing, securing or relating thereto, or any other default, event of default or similar event occurs or condition exists, the effect of which default, ev ent of default or similar event or condition is to permit (determined without regard to whether any notice is required) any such Debt to become immediately due and payable in full as the result of the acceleration, mandatory redemption or mandatory tender of such Debt (other than Wastewater Enterprise Debt); (l) any final, nonappealable judgment or judgments, writ or writs or warrant or warrants of attachment, or any similar process or processes, in an aggregate amount not less than $10,000,000 are entered or filed against the Commission or against any of its Property and remain unpaid, unvacated, unbonded and unstayed for a period of sixty (60) days; (m) (i) the Commission shall default in the due performance or observance of any material term, covenant or agreement contained in any other Basic Document and the same shall not have been cured within any applicable cure period or (ii) any “event of default” under any other Basic Document (as defined respectively therein) has occurred; (n) a ruling, assessment, notice of deficien cy or technical advice by the Internal Revenue Service is rendered to the effect that inte rest on the Series A-5 Notes is includable in the gross income of the holder(s) or owner(s) of such Series A-5 Notes and either (i) the Commission, after it has been notified by the Internal Reve nue Service, does not challenge such ruling, assessment, notice or advice in a court of law dur ing the period within which such challenge is permitted or (ii) the Commission challenges such ruling, assessment, notice or advice and a court of law makes a determination, not subject to appeal or review by another court of law, that such ruling, assessment, notice or advice is correctly rendered; (o) any of Fitch, Moody’s and S&P (i) downg rades its long-term rating of any Senior Debt (as defined in the Truist Bank A-5 Reimbursement Agreement) of the Commission to below “BBB+” (or its equivalent), “Baa1” (or its equivalent), or “BBB+” (or its equivalent) respectively, or (ii) suspends or withdraws its rating of the same; or (p) the passage of any Law (as defined in the Truist Bank A-5 Reimbursement Agreement) has occurred which could reasonably be expected to have a material adverse effect on the Commission’s ability to perform its obligatio ns under the Truist Bank A-5 Reimbursement Agreement or the other Basic Documents or to result in a material adverse effect on the enforceability or validity of the Truist Bank A- 5 Reimbursement Agreement or any of the other Basic Documents.
Truist Bank A-5 Reimbursement Agreement Remedies
Upon the occurrence of any Event of Defau lt under the Truist Bank A-5 Reimbursement Agreement, Truist Bank may exercise any one or more of the following rights and remedies in addition to any other remedies provided in the Truist Bank A-5 Reimbursement Agreement or by law provided:
(a) declare all Obligations to be immedi ately due and payable, whereupon the same are immediately due and payable without any further notice of any kind, which notice is waived by the Commission; provided, however, that in the case of an Event of Default described in paragraph (e), (f) or (g) above under the subcapti on “TRUIST BANK A-5 LETTER OF CREDIT AND TRUIST BANK A-5 REIMBURSEMENT AGREEMENT—Truist Bank A-5 Reimbursement
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Agreement Events of Default,” such acceleration will automatically occur (unless such automatic acceleration is waived by Truist Bank in writing); or
(b) issue a No Issuan ce Notice (the effect of which will be as provided in the Truist Bank A-5 Reimbursement Agreement), reduce the Stated Amount of the Truist Bank A-5 Letter of Credit to the amount of the then outstanding Series A-5 Notes supported by the Truist Bank A-5 Letter of Credit plus a corresponding amount of interest coverage, reduce the Stated Amount of the Truist Bank A-5 Letter of Credit as the then outstanding Series A-5 Notes are paid and terminate the Truist Bank A-5 Letter of Credit when no Series A-5 Notes remain outstanding; or (c) issue the Final Drawing Notice (the effect of which will be to cause the Termination Date of the Truist Bank A-5 Letter of Credit to occur on the fifteenth (15) calendar day after the date of receipt thereof by the Series A-5 Issuing and Paying Agent); or (d) pursue any rights and remedies it may have under the Basic Documents; or (e) pursue any other action available at law or in equity. [Remainder of page left blank intentionally.]
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BANK FACILITY FOR THE SERIES A-6 COMMERCIAL PAPER NOTES
BANK OF AMERICA A-6 LIQUIDITY FACILITY
The Commission has entered into a dedicated liquidity facility (the “Bank of America A-6 Liquidity Facility”) with Bank of America, N.A. (“Bank of Amer ica”) to provide back-up liquidity to pay principal of and accrued interest on maturing Series A-6 Notes. The Series A-6 Notes are issued pursuant to the terms of the Issuing and Paying Agent Agreement, da ted as of October 1, 2014, as amended by the First Amendment to Issuing and Paying Agent Agreement, dated as of October 15, 2019, and as amended by the Second Amendment to Issuing and Paying Agent Agreement, dated as of August 2, 2024 (collectively, the “Series A-6 Issuing and Paying Agent Agreement”), by and between U.S. Bank Trust Company, National Association (as successor in interest to U.S. Bank Na tional Association), as issuing and paying agent (the “Series A-6 Issuing and Paying Agent”), and the Commission.
The following description is a summary of certain provisions of the Bank of America A-6 Liquidity Facility. Such summary does not purport to be a comp lete description or restatement of the material provisions of the Bank of America A-6 Liquidity Fac ility. Investors should obtain and review a copy of the Bank of America A-6 Liquidity Facility in order to understand all of the terms of such document. All capitalized terms appearing under this heading “BANK OF AMERICA A-6 LIQUIDITY FACILITY” shall have the meanings assigned to them in the Bank of America A-6 Liquidity Facility.
The Commission has entered into the Bank of Am erica A-6 Liquidity Facility with Bank of America. The Bank of America A-6 Liquidity Facility can be drawn upon by the Commission, subject to compliance with certain conditions as specified in the Bank of America A-6 Liquidity Facility, in an amount equal to the maximum principal amount of the Seri es A-6 Notes plus two-hundred seventy (270) days’ interest thereon at the rate of 12% per annum calculated on the basis of a year of 360 days.
The stated Commitment Expiration Date of the Bank of America A-6 Liquidity Facility is August 2, 2027, unless sooner terminated or later extended pursuant to its terms. In the event the Commission issues Subordinated Wastewater Bonds, and after Bank of America has provided notice to the Commission and the Issuing and Paying Agent, the commitment under the Bank of America A-6 Liquidity Facility will be reduced to the principal amount of the Series A-6 Notes then outstanding. Upon the maturity date of such Series A-6 Notes, the commitment will be permanently reduced further and upon the final maturity of such Series A-6 Notes, the commitment under the Bank of Am erica A-6 Liquidity Facility will be terminated.
Following receipt of such notice, the Commission will not issue any additional Series A-6 Notes while the Bank of America A-6 Liquidity Facility is in effect.
Immediate Termination Events
The following constitute Immediate Termination Events under the Bank of America A-6 Liquidity Facility:
Payments. The Commission fails to pay principal of, or interest on, the Revolving Note, the Term Note, any Advance or any Term Loan when the sam e becomes due and payable in accordance with its terms;
Invalidity. (A) Any provision of the Charter, the Bank of America A-6 Liquidity Facility, the Revolving Note, the Term Note, any Series A-6 Note, the Series A-6 Issuing and Paying Agent Agreement, the City Legislation or the Resolutions relating to (x) the ability or the obligation of the Commission to pay, when due, the principal of or interest on the Series A-6 Notes, the Term Note, the Revolving Note, any Advance or any Term Loan or (y) the lien on or pled ge of the Pledged Revenues, at any time, and for any
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reason, ceases to be valid and binding on the Commission, or is declared to be null and void, invalid or unenforceable as the result of a final nonappealable judgment by any federal or state court or as a result of any legislative or administrative action by any G overnmental Authority having jurisdiction over the Commission; or (B) an Authorized Representative of the Commission (i) publicly contests or contests in writing any provision of the Charter, the Bank of America A-6 Liquidity Facility, the Revolving Note, the Term Note, any Series A-6 Note, the Series A-6 Issuing and Paying Agent Agreement, the City Legislation or the Resolutions relating to (x) the ability or the obligation of the Commission to pay, when due, the principal of or interest on the Series A-6 Notes, th e Term Note, the Revolving Note, any Advance or any Term Loan or (y) the lien on or pledge of the Pledge d Revenues or (ii) repudiates or otherwise denies in writing that it has any further liability or obligation unde r or with respect to any provision of the Charter, the Bank of America A-6 Liquidity Facility, the Revolving Note, the Term Note, any Series A-6 Note, the Series A-6 Issuing and Paying Agent Agreement, the City Legislation or the Resolutions relating to (x) the ability or the obligation of the Commission to pay, when due, the principal of or interest on the Series A-6 Notes, the Term Note, the Revolving Note, any Advance or any Term Loan or (y) the lien on or pledge of the Pledged Revenues; or (C) the State or the Commissi on has taken or permitted to be taken any official action, or has duly enacted any statute, which would adversely affect the enforceability of any provision of the Charter, the Bank of America A-6 Liquidity Facility, the Revolving Note, the Term Note, any Series A-6 Note, the Series A-6 Issuing and Paying Agent Agr eement, the City Legislation or the Resolutions relating to (x) the ability or the obligation of the Commission to pay, when due, the principal of or interest on the Series A-6 Notes, the Term Note, the Revolving Note, any Advance or any Term Loan or (y) the lien on or pledge of the Pledged Revenues; or (D) any Governmental Authority with jurisdiction to rule on the validity or enforceability of th e Charter, the Bank of America A-6 Liquidity Facility, the Revolving Note, the Term Note, any Series A-6 Note, the Series A-6 Issuing and Paying Agent Agreement, the City Legislation or the Resolutions finds or rules, in a j udicial or administrative proceeding, that any provision of the Charter, the Bank of America A-6 Liquidity Facility, the Revolving Note, the Term Note, any Series A-6 Note, the Series A-6 Issuing and Paying Agent Agreement, the City Legislation or the Resolutions, as the case may be, relating to (x) the ability or the ob ligation of the Commission to pay, when due, the principal of or interest on the Series A-6 Notes, th e Term Note, the Revolving Note, any Advance or any Term Loan or (y) the lien on or pledge of the Ple dged Revenues, is not valid or not binding on, or enforceable against, the Commission;
Insolvency, Etc. The Commission or the City and County of San Francisco, directly or indirectly, becomes insolvent or admits in writing its inability to pay its debts as they mature or declares a moratorium on the payment of its debts or apply for, consent to or acquiesce in the appointment of a trustee, custodian, liquidator or receiver for itself or any substantial part of its property, or takes any action to authorize or effect any of the foregoing; or in the absence of any such application, consent or acquiescence, a trustee, custodian, liquidator or receiver is appointed for it or for a substantial part of its property or revenues and is not discharged within a period of sixty (60) days; or the State or any other governmental authority having jurisdiction over the Commission or the City and C ounty of San Francisco imposes a debt moratorium or comparable extraordinary restriction on repayment when due and payable of the principal of or interest on all Debt of the Commission and all of the Series A-6 Not es; or all, or any substantial part, of the property of the Commission or the City and County of San Francisco is condemned, seized, or otherwise appropriated, or any bankruptcy , reorganization, debt arrangeme nt or other proceeding under any bankruptcy or insolvency law or a ny dissolution or liquidatio n proceeding is instituted by or against the Commission or the City and County of San Francisco (o r any action is taken to authorize or effect the institution by it of any of the foregoing) and if institu ted against it, shall be c onsented to or acquiesced in by it, or shall not be dismissed within a period of sixty (60) days; Cross-Default to Senior Debt or Parity Debt. The Commission fails to pay, when due and payable, any principal of or interest on any Senior Debt or any Parity Debt (including, without limitation, any
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principal or sinking fund installments thereon but excluding Commercial Paper Notes and Other Commercial Paper Notes);
Cross-Default to Commercial Paper Notes. The Commission fails to pay, when due and payable, any interest on any Commercial Paper Notes or Other Commercial Paper Notes (but excluding the interest on Commercial Paper Notes or Other Commercial Pape r Notes issued by or on behalf of the Commission so long as the payment of such interest is supported by a third-party liquidity facility or a third-party credit facility);
Unsatisfied Judgments. A final, nonappealable, judgment or order for the payment of money in excess of $15,000,000, individually or in the aggregat e, is rendered against the Commission and payable from Pledged Revenues and such judgment or order continues unsatisfied and unstayed for a period of sixty (60) days; or
Ratings. The long-term credit ratings assigned by Moody’s and S&P (to the extent then providing a rating) to unenhanced Parity Debt, unenhanced Subordinated Wastewater Bonds or unenhanced Senior Debt is (A) reduced below “Baa3” (or its equivalent ) and “BBB-” (or its equivalent) or (B) withdrawn or suspended for any credit related re asons; provided, that nothing in the Bank of America A-6 Liquidity Facility requires the Commission to maintain a long-ter m rating on Parity Debt, so long as the only Parity Debt outstanding is the Commercial Paper Notes and related credit and liquidity facilities.
Existence. The dissolution or termination of the exis tence of the Commission if a Governmental Authority does not, contemporaneously with the disso lution or termination of the existence of the Commission, assume the obligations of the Commission under this Agreement and the other Basic Documents to which it is a party related to pay principal of or interest on the Series A-6 Notes, the Revolving Note, the Term Note, any Advance or any Term Loan and Senior Debt or any Parity Debt.
Other Events of Default
The following, together with the Immediate Te rmination Events and the Suspension Events, constitute Events of Default under the Bank of America A-6 Liquidity Facility:
Representations Untrue . Any representation, warranty, certif ication or statement made by the Commission in the Bank of America A-6 Liquidity Facility or in any Basic Document or in any certificate, financial statement or other document delivered pursuant to the Bank of America A-6 Liquidity Facility or any Basic Document was (in any such case) incorrect or untrue in any material respect when made or deemed to have been made.
Certain Covenant Defaults . The Commission defaults in the due performance or observance of any term, covenant or agreement contained in certain clauses of the Bank of America A-6 Liquidity Facility.
Other Covenant Defaults. The Commission defaults in the due performance or observance of any term, covenant or agreement contained in the Bank of America A-6 Liquidity Facility (other than those covered as set forth under “BANK OF AMERICA A-6 LIQUIDITY FACILITY—Immediate Termination Events—Payments” or “Other Events of Default—Certai n Covenant Defaults” above) and such default, if capable of being remedied, remains unremedied for thirty (30) days after the earlier to occur of (i) written notice thereof has been given to the Commission by Bank of America or (ii) an Authorized Representative of the Commission has actual knowledge thereof.
Other Invalidity. (i) Any material provision of the Charter, the Bank of America A-6 Liquidity Facility, the Revolving Note, the Term Note, any Series A-6 Note, the Series A-6 Issuing and Paying Agent
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Agreement, the Resolutions, the City Legislation or th e Fee Letter (other than a provision referred to in “BANK OF AMERICA A-6 LIQUIDITY FACILITY—Immediate Termination Events—Invalidity”), is declared to be null and void, invalid or unenforceable as the result of a final nonappealable judgment by any federal or state court or as a result of any legi slative or administrative action by any Governmental Authority having jurisdiction over the Commission; or (ii) an Authorized Representative of the Commission (A) contests any material provision of the Charter, the Bank of America A-6 Liquidity Facility, the Revolving Note, the Term Note, any Series A-6 Note, the Series A-6 Issuing and Paying Agent Agreement, the Resolutions or the Fee Letter (other than a provision referred to in “BANK OF AMERICA A-6 LIQUIDITY FACILITY—Immediate Termination Even ts—Invalidity”) or (B) repudiates or otherwise denies in writing that it has any further liability or obligation under or with respect to any material provision of the Charter, the Bank of America A-6 Liquidity Facility, the Revolving Note, the Term Note, any Series A-6 Note, the Series A-6 Issuing and Paying Agent Agreement, the Resolutions, the City Legislation or the Fee Letter (other than a provision referred to in “BANK OF AMERICA A-6 LIQUIDITY FACILITY— Immediate Termination Events—Invalidity”); or (iii) the State or the Commission has taken or permitted to be taken any official action, or has duly enact ed any statute, which would adversely affect the enforceability of any material provision of relating to the Charter, the Bank of America A-6 Liquidity Facility, the Revolving Note, the Term Note, any Series A-6 Note, the Series A-6 Issuing and Paying Agent Agreement, the Resolutions or the Fee Letter (other than a provision referred to in “BANK OF AMERICA A-6 LIQUIDITY FACILITY—Immediate Termination Events—Invalidity”); (iv) any Governmental Authority with jurisdiction to rule on the validity or enforceability of the Charter, the Bank of America A- 6 Liquidity Facility, the Revolving Note, the Term Note , any Series A-6 Note, the Series A-6 Issuing and Paying Agent Agreement, the Resolutions, the City Legislation or the Fee Letter finds or rules, in a judicial or administrative proceeding, that any material provision of the Charter, the Bank of America A-6 Liquidity Facility, the Revolving Note, the Term Note, any Series A-6 Note, the Series A-6 Issuing and Paying Agent Agreement, the Resolutions, the City Legislation or th e Fee Letter (other than a provision referred to in “BANK OF AMERICA A-6 LIQUIDITY FACILITY—Imm ediate Termination Events—Invalidity” is not valid or not binding on, or enforceable against, the Commission or (v) a debt moratorium or comparable extraordinary restriction on repayment of debt has been declared or imposed (whether or not in writing) with respect to the Fee Letter, th e Series A-6 Notes, the Term Note, the Revolving Note, any Advance or any Term Loan.
Other Cross-Defaults. The Commission fails to pay when due and payable (i) any principal of or interest on any Debt (other than Senior Debt or Parity Debt) in excess of $10,000,000 of the Commission and such failure continues beyond any applicable pe riod of grace specified in any underlying indenture, contract or instrument providing for the creation th ereof or (ii) any princi pal on any Commercial Paper Notes or Other Commercial Paper Notes (other than the Series A-6 Notes) or (iii) defaults in the observance or performance of any agreement or condition relating to any Debt (other than Wastewater Enterprise Debt) aggregating in excess of $10,000,000, or contained in any instrument or agreement evidencing, securing or relating thereto, or any other default, event of default or similar event occurs or condition exists, the effect of which default, event of default or similar event or condition is to permit (det ermined without regard to whether any notice is required) any such Debt to become immediately due and payable in full as the of the acceleration, mandatory redemption or mandatory tender of such Debt (other than Wastewater Enterprise Debt).
Basic Document Default . (i) The Commission defaults in the due performance or observance of any material term, covenant or agreement contained in any other Basic Document and the same is not cured within any applicable cure period or (ii) any “event of default” under any other Basic Document (as defined respectively therein) has occurred.
Other Payments. The Commission fails to pay (i) any amount required pursuant to the Fee Letter when said amount is due and payable or (ii) any amount payable under the Bank of America A-6 Liquidity
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Facility within five (5) days after the same is due and after written demand by Bank of America in respect thereof, other than payments described in “BANK OF AMERICA A-6 LIQUIDITY FACILITY— Immediate Termination Events—Payments” and clause (i) of this paragraph.
Taxability. A ruling, assessment, notice of deficiency or technical advice by the Internal Revenue Service is rendered to the effect that interest on th e Series A-6 Notes is includable in the gross income of the holder(s) or owner(s) of such Series A-6 Notes and either (i) the Commission, after it has been notified by the Internal Revenue Service, does not challenge such ruling, assessment, notice or advice in a court of law during the period within which such challenge is permitted or (ii) the Commission challenges such ruling, assessment, notice or advice and a court of law shall make a determination, not subject to appeal or review by another court of law, that such ruling, assessment, notice or advice is correctly rendered.
Other Insolvency. (i) There is commenced against the Commission any case, proceeding or other action of a nature referred to in “BANK OF AMERICA A-6 LIQUIDITY FACILITY—Immediate Termination Events—Insolvency, Etc. ” above which (A) results in an order for such relief or in the appointment of a receiver or similar official or (B) remains undismissed, undischarged or unbonded for a period of sixty (60) days; or (ii) there is commenced against the Commission, any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets or for all or any portion of the Pledged Revenues, which results in the entry of an order for any such relief which shall not have be en vacated, discharged, or stayed or bonded pending appeal within sixty (60) days from the entry thereof.
Ratings. The long-term credit ratings assigned by Moody’s or S&P to unenhanced Parity Debt or unenhanced Senior Debt shall be (i) reduced below “A3” (or its equivalent) or “A-” (or its equivalent)” or (ii) withdrawn or suspended for any credit related reas ons; provided, that nothing in the Bank of America A-6 Liquidity Facility shall require the Commission to maintain a long-term rating on Parity Debt, so long as the only Parity Debt outstanding is the Commercial Paper Notes and related credit and liquidity facilities.
Cross Acceleration . The Commission (i) defaults in the observance or performance of any agreement or condition relating to any Wastewater En terprise Debt or contained in any instrument or agreement evidencing, securing or rela ting thereto, or any other default, event of default or similar event occurs or condition exists, 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) any such Wastewater Enterprise Debt to become immediately due and payable in full as th e result of the acceleration, mandatory redemption or mandatory tender of such Wastewater Enterprise Debt; or (ii) defaults in the observance or performance of any agreement or condition relating to any Debt (oth er than Wastewater Enterprise Debt) aggregating in excess of $10,000,000, or contained in any instrument or agreement evidencing, securing or relating thereto, or any other default, event of default or similar event occurs or condition exists, 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) any such Debt to become immediately due and payable in full as the result of the acceleration, mandatory redemption or mandatory tender of such Debt (other than Wastewater Enterprise Debt).
Change of Law. The passage of any Law has occurred which could reasonably be expected have a material adverse effect on the Co mmission’s ability to perform its obligations under the Bank of America A-6 Liquidity Facility or the other Basic Documents or to result in a material adverse effect on the enforceability or validity of the Bank of America A-6 Liquidity Facility or any of the other Basic Documents.
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Remedies
(a) Immediate Termination Events . In the case any Event of Default which is an Immediate Termination Event has occurred, (i) the Commitment will immediately and automatically terminate, without notice from Bank of America, and (ii) all amounts due under the Bank of America A-6 Liquidity Facility, the Fee Letter and under the Revolving Note and the Term Note will immediately become due and payable; provided, that the Even t of Default described “BANK OF AMERICA A-6 LIQUIDITY FACILITY—Immediate Termination Events— Payments.” will not qualify as an “Immediate Termination Event” under the Bank of America A- 6 Liquidity Facility if the failure to pay the prin cipal of, or interest on, the Revolving Note, the Term Note, any Advance or any Te rm Loan is due solely to an acceleration thereof by Bank of America for any reason other than the failure to pay the principal of, or interest on, the Revolving Note, the Term Note, any Advance or any Term Loan; provided, further, that the Event of Default described in BANK OF AMERICA A-6 LIQUIDITY FACILITY—Immediate Termination Events—Cross-Default to Senior Debt or Parity Debt.” will not qualify as an “Immediate Termination Event” under the Bank of America A-6 Liquidity Facility if the failure to pay the principal of, or interest on, such Senior Debt or Parity Debt is due solely to an acceleration thereof by a provider of credit enhancement or liquidity s upport with respect thereto for any reason other than the failure to pay the principal of, or interest on, such Senior Debt or Parity Debt. (b) Suspension Events. In the case of a Default described in “BANK OF AMERICA A-6 LIQUIDITY FACILITY—Other Events of Default—Other Insolvency” (a “Suspension Event”), the Commitment will be immediately suspended without notice or demand and, thereafter, Bank of America will be under no obligation to make Advances or Term Loans under the Bank of America A-6 Liquidity Facility until the Available Commitment is reinstated as described in the Bank of America A-6 Liquidity Facility. Promptly upon the occurrence of any such Suspension Event, Bank of America will notify the Commission, the Series A-6 Issuing and Paying Agent and the Dealer of such suspension an d the effective date of such suspension in writing by facsimile, promptly confirmed by regular mail; provided, that Bank of America will incur no liability of any kind by reason of its failure to give such notice and such failure will in no way affect the suspension of the Available Commitment or its obligation to make Advances or Term Loans pursuant to the Bank of America A-6 Liquidity Facility. The Commission will promptly direct the Series A-6 Issuing and Paying Agent to notify all Holders of a suspension of the obligation of Bank of America to make Advances and Term Loans as a result of the occurrence of such Suspension Event. Upon the occurrence of a Suspension Event, the Commitment will immediately and automatically suspended and remain suspended until the case, pr oceeding or other action referred to therein is either dismissed, discharged or bonded within si xty (60) days from the commencement of such case, proceeding or action, or the date on which Bank of America’s obligations under the Bank of America A-6 Liquidity Facility have terminated or expired in accordance with the terms hereof (the “Termination Date”) occurs, whichever is first. In the event that said Su spension Event has been dismissed, discharged or bonded within the sixty (60) day period described therein and prior to the Termination Date, then the Available Commitment and the obligation of Bank of America to make Advances and Term Loans will be reinstated and the terms of the Bank of America A-6 Liquidity Facility will continue in full force and effect as if there had been no such suspension (unless the Commitment Period will otherwise have been terminated, suspended or expired as provided in the Bank of America A-6 Liquidity Facility). In the event that said Suspension Event is not dismissed, discharged or bonded within said sixty (60) day period when the Termination Date occurs, then the Available Commitment and the obligation of Bank of America to make Advances and Term Loans will terminate on the Termination Date without notice or demand and, thereafter, Bank of America will be under no obligation to make such Adva nces and Term Loans under the Bank of America A-6 Liquidity Facility.
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(c) All Events of Default. In the case of any Event of Default, including any Immediate Termination Event or a Suspension Event that h as occurred and is continuing, Bank of America (i) may by written notice to the Commission decl are all amounts due under the Bank of America A-6 Liquidity Facility, under the Fee Letter or under the Revolving Note or the Term Note to be immediately due and payable, whereupon the sam e will immediately become due and payable, (ii) may by written notice to the Commission a nd the Series A-6 Issuing and Paying Agent (an “EoD No-Issuance Notice”) in substantially the fo rm of Exhibit H to the Bank of America A-6 Liquidity Facility declare the Available Principa l Commitment to be reduced to the principal amount of Series A-6 Notes then outstanding and to be permanently reduced further on the maturity date of each such Series A-6 Notes by an amount equal to the principal amount of such Series A-6 Notes with the Commitment to be terminated upon th e last maturity date applicable to all such Series A-6 Notes and the Available Interest Co mmitment shall immediately be reduced to the amount of interest to accrue on such outstanding Series A-6 Notes, and the Available Commitment shall be further reduced in a similar manner as and when the Series A-6 Notes mature, (iii) may petition a court of competent jurisdiction to issue a mandamus order to the Commission to compel specific performance of the covenants of the Commi ssion contained in the Resolutions or herein and (iv) may pursue any other rights or remedies under the Bank of America A-6 Liquidity Facility, the Fee Letter, the Resolutions, any other Basic Document, applicable law or otherwise. Except as expressly provided in the Bank of America A-6 Li quidity Facility, procurement, demand, protest and all other notices of every kind are expressly waived in the Bank of America A-6 Liquidity Facility. Following receipt of an EoD No-Issu ance Notice, the Commission shall not issue any additional Series A-6 Notes.
(d) Timing of EoD No-Issuance Notice. An EoD No-Issuance Notice that is received by the Commission at or before 3:00 p.m. (New York City time) will be effective when received.
An EoD No-Issuance Notice that is received by Commission after 3:00 p.m. (New York City time) will not be effective until the opening of business on the next succeeding Business Day. (e) Copies of Notices. Concurrently with the occurrence of an Immediate Termination Event pursuant to the Bank of America A-6 Li quidity Facility or an EoD No-Issuance Notice pursuant to the Bank of America A-6 Liquidity Facility, the Commission will give notice to the Series A-6 Issuing and Paying Agent and the Dealers.
In addition, concurrently with giving such notice to the Commission and the Series A-6 Issuing and Paying Agent, Bank of America will provide a copy th ereof to the Dealers at their respective addresses referred to in the Bank of America A-6 Liquidity F acility; provided, however, that Bank of America will not incur any liability as a result of its failure to pr ovide a copy of such a notic e in accordance with this sentence.
Related Covenants
Under the related Series A-6 Issuing and Paying Agent Agreement, the Commission covenants to maintain in effect the Bank of America A-6 Liquid ity Facility or an Alternate Facility meeting the requirements of such Series A-6 Issuing and Paying Agent Agreement at all times that Series A-6 Notes are Outstanding thereunder. The Commission will furthe r covenant that if it is unable to obtain a binding commitment for an Alternate Facility at least ninety (90) days prior to the Commitment Expiration Date, it shall use its best efforts, to the extent permitted by la w, to endeavor to refinance such outstanding Series A-6 Notes or Bank Notes, as the case may be.
The Commission shall deliver written notice of a proposed Alternate Facility to the Series A-6 Issuing and Paying Agent, Bank of America, the City and each Dealer not less than forty-five (45) days
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prior to the substitution date. The Series A-6 Issuing and Paying Agent shall deliver written notice of such substitution to the registered Holders of Series A-6 Notes at least thirty (30) days prior to the substitution date.
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BANK FACILITY FOR THE SERIES A-7 COMMERCIAL PAPER NOTES
SMBC A-7 LETTER OF CREDIT
AND SMBC A-7 REIMBURSEMENT AGREEMENT
The Commission has entered into a reimbursemen t agreement (the “SMBC A-7 Reimbursement Agreement”) with SMBC, pursuant to which SMBC has issued an irrevocab le direct-pay letter of credit (the “SMBC A-7 Letter of Credit”) for the account of the Commission supporting the payment of principal of and interest due thereon at maturity or upon acceleration of Series A-7 Notes. The Series A-7 Notes are issued pursuant to the terms of the Issuing and Pa ying Agent Agreement, dated as of June 1, 2017 (the “Series A-7 Issuing and Paying Agent Agreement”), by and between U.S. Bank Trust Company, National Association (as successor in interest to U.S. Bank Na tional Association), as issuing and paying agent (the “Series A-7 Issuing and Paying Agent”), and the Commission.
The following description is a summary of certain provisions of the SMBC A-7 Letter of Credit and SMBC A-7 Reimbursement Agreement. Such summary does not purport to be a complete description or restatement of the material provisions of the SMBC A-7 Letter of Credit and SMBC A-7 Reimbursement Agreement. Investors should obtain and review copies of the SMBC A-7 Letter of Credit and SMBC A-7 Reimbursement Agreement in order to understand all of th e terms of those documents. All capitalized terms appearing under this heading “SMBC A-7 LETTER OF CREDIT AND SMBC A-7 REIMBURSEMENT AGREEMENT” not otherwise define d herein shall have the meanings assigned to them in the related document.
SMBC A-7 Letter of Credit
The SMBC A-7 Letter of Credit is an irrevocable transferable obligation of Sumitomo Mitsui Banking Corporation, acting through its New York Branch and supports the Series A-7 Notes only. The SMBC A-7 Letter of Credit was issued in an amount equal to the maximum principal amount of the Series A-7 Notes plus 270 days’ interest thereon at the rate of 12% per annum calculated on the basis of a year of 365 days (the “Stated Amount”). The Series A-7 Issuing and Paying Agent is authorized to draw on SMBC in an aggregate amount not to exceed the Stated Amount of the SMBC A-7 Letter of Credit and in accordance with the terms and conditions and subject to the reductions and reinstatements in amount as set forth in the SMBC A-7 Letter of Credit, in one or mo re Drawings (as defined in the SMBC A-7 Letter of Credit), payable as set forth in the SMBC A-7 Letter of Credit on any Business Day (as defined in the SMBC A-7 Letter of Credit), by presentation of the a ppropriate certifications, (i) for the payment at maturity of the principal of and interest at maturity on Series A-7 Notes, (ii) for the payment at maturity of the principal of and interest to maturity on Series A-7 Notes that otherwise mature on or after the date that the Series A-7 Issuing and Paying Agent receives the Final Drawing Notice (as defined in the SMBC A-7 Letter of Credit) from SMBC, or (iii) for (x) the pa yment of the principal of and interest due upon acceleration of certain of the Series A-7 Notes (each an “Acceleration Drawing”) or (y) the payment of the principal of and interest due upon acceleration of all outstanding Series A-7 Notes (the “Final Acceleration Drawing”), in each case an aggregate amount not exceeding the Stated Amount of the SMBC A-7 Letter of Credit.
Upon SMBC honoring any Drawing, the Stated Am ount and the amount available to be drawn under the SMBC A-7 Letter of Credit for subsequent Drawings will be automatically decreased by an amount equal to the amount of such Drawing. In connection therewith, the Stated Amount and the amounts from time to time available to be drawn under the SM BC A-7 Letter of Credit (except in the case of the Final Acceleration Drawing or a Drawing resulting from the delivery of the Final Drawing Notice) will be increased when and to the extent, but only when and to the extent, (i ) (A) of transfer by the Series A-7 Issuing and Paying Agent to SMBC on the date such Dr awing is honored of proceeds of Series A-7 Notes
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issued on such date or (B) the Series A-7 Issuing and Paying Agent receives written notice from SMBC that SMBC has been reimbursed by or on behalf of the Commission for any amount drawn under the SMBC A-7 Letter of Credit, and (ii) that the Series A-7 Issuing and Paying Agent has not received from SMBC a No-Issuance Notice (as defined in the SMBC A-7 Letter of Credit). Upon SMBC honoring the Final Acceleration Drawing, the Stated Amount shall be pe rmanently reduced to zero and the Stated Amount shall no longer be reinstated.
The SMBC A-7 Letter of Credit will expire at 4:00 p.m., New York City time, on the date (the earliest of such dates to occur is referred to as the “Termination Date”) which is the earliest of (i) May 31, 2027 (the “Stated Expiration Date”) or such later da te as is specified by SMBC in a written notice to the Series A-7 Issuing and Paying Agent, (ii) the later of (a) the date on which SMBC receives written notice from the Series A-7 Issuing and Paying Agent that an Alternate Facility as is specified in such notice (as defined in the Series A-7 Issuing and Paying Agent Agreement) has been su bstituted for the SMBC A-7 Letter of Credit in accordance with the Series A-7 Issuing and Paying Agent Agreement and (b) the effective date of such Alternate Facility (after SMBC honors any properly presented and conforming Drawing on or prior to such date), (iii) the date on which SMBC receives written notice from the Series A-7 Issuing and Paying Agent that there are no longer any Series A-7 Notes Outstanding within the meaning of the Series A-7 Issuing and Paying Agent Agreement nor does th e Commission intend to issue any additional Series A-7 Notes under the Series A-7 Issuing and Paying Ag ent Agreement and that the Series A-7 Issuing and Paying Agent elects to terminate the SMBC A-7 Letter of Credit, (iv) the earlier of (a) the fifteenth (15th) calendar day after the date on which the Series A-7 Issuing and Paying Agent receives the Final Drawing Notice, and (b) the date on which the Drawing resu lting from the delivery of the Final Drawing Notice is honored under the SMBC A-7 Letter of Credit, and (v) th e date on which the Final Acceleration Drawing is honored under the SMBC A-7 Letter of Credit.
SMBC A-7 Reimbursement Agreement Events of Default
If any of the following events shall occur, each such event shall be an “Event of Default” under the SMBC A-7 Reimbursement Agreement:
(a) the Commission shall fail to pay, or cause to be paid, as and when due, (i) any Reimbursement Obligation (as defined in the SM BC A-7 Reimbursement Agreement), or (ii) any Obligation (as defined in the SMBC A-7 Reimbursement Agreement) (other than a Reimbursement Obligation) and, in such case, such failure shall continue for three (3) Business Days; (b) any representation or warranty made by or on behalf of the Commission in the SMBC A-7 Reimbursement Agreement or in any ot her Basic Document (as defined in the SMBC A-7 Reimbursement Agreement) or in any certificat e or statement delivered thereunder shall be incorrect or untrue in any material respect when made or deemed to have been made or delivered; (c) the Commission shall default in the due performance or observance of certain covenants set forth in the SMBC A-7 Reimbursement Agreement; (d) the Commission shall default in the due performance or observance of any other term, covenant or agreement contained in the SMBC A-7 Reimbursement Agreement or any other Basic Document and such default shall remain unremedied for a period of thirty (30) days after the occurrence thereof;
(e) the Commission shall (i) have entered i nvoluntarily 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,
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(iii) make an assignment for the benefit of credito rs, (iv) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trust ee, examiner, liquidator or similar official for it or any substantial part of its Property (as de fined in the SMBC A-7 Reimbursement Agreement), (v) institute any proceeding seeking to have ente red 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, inso lvency 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) take any corporate action in furtherance of any matter described in parts (i) through (v) above, or (vii) fail to contest in good faith any appointment or proceeding described in paragraph (f) below;
(f) a custodian, receiver, trustee, examiner, liquidator or similar official shall be appointed for the Commission or any substantial part of its Property, or a proceeding described in clause (e)(v) above shall be instituted agains t the Commission and such proceeding continues undischarged or any such proceeding continues undismissed or unstayed for a period of thirty (30) or more days;
(g) a debt moratorium, debt restructuring, de bt adjustment or comparable restriction is imposed on the repayment when due and payable of the principal of or interest on any Debt (as defined in the SMBC A-7 Reimbursement Agreem ent) of the Commission by the Commission or any governmental authority with appropriate jurisdiction; (h) any material provision of the SMBC A- 7 Reimbursement Agreement or any other Basic Document shall at any time for any reason cease to be valid and binding on the Commission for any reason or shall be declared by any court or other Governmental Authority with competent jurisdiction to be null and void, invalid, or unen forceable, or the validity or enforceability thereof shall be publicly contested by the Commission or by a Governmental Authority with competent jurisdiction, or the Commission shall deny that it has any further liability under the SMBC A-7 Reimbursement Agreement or any other Basic Document;
(i) dissolution or termination of the existence of the Commission; (j) the Commission shall (i) default on the paym ent of the principal of or interest on any Wastewater Enterprise Debt (as defined in the SMBC A-7 Reimbursement Agreement), beyond the period of grace, if any, provided in the instrument or agreement under which such Wastewater Enterprise Debt was created or incurred; or (ii) default in the observan ce or performance of any agreement or condition relating to any Wastewater Enterprise Debt or contained in any instrument or agreement evidencing, securing or relating theret o, or any other default, event of default or similar event shall occur or condition exist, the eff ect of which default, event of default or similar event or condition is to permit (determined without regard to whether any notice is required) any such Wastewater Enterprise Debt to become im mediately due and payable in full as the result of the acceleration, mandatory redemption or mandatory tender of such Wastewater Enterprise Debt; (k) the Commission shall (i) default on the paym ent of the principal of or interest on any Debt (other than Wastewater Enterprise De bt) aggregating in excess of $10,000,000, beyond the period of grace, if any, provided in the instru ment or agreement under which such Debt (other than Wastewater Enterprise Debt) was created or incurred; or (ii) default in the observance or performance of any agreement or condition relating to any Debt (other than Wastewater Enterprise Debt) aggregating in excess of $10,000,000, or contained in any instrument or agreement evidencing, securing or relating thereto, or any other default, event of default or similar event shall
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occur or condition exist, the effect of which defau lt, event of default or similar event or condition is to permit (determined without regard to whether any notice is required) any such Debt to become immediately due and payable in full as the result of the acceleration, mandatory redemption or mandatory tender of such Wastewater Enterprise Debt;
(l) any final, unappealable judgment or judgme nts, writ or writs or warrant or warrants of attachment, or any similar process or pr ocesses, in an aggregate amount not less than $10,000,000 shall be entered or filed against the Commission or against any of its Property and remain unpaid, unvacated, unbonded or unstayed for a period of thirty (30) days; (m) any “event of default” under any Basic Do cument (as defined respectively therein) shall have occurred;
(n) a ruling, assessment, notice of deficien cy or technical advice by the Internal Revenue Service shall be rendered to the effect th at interest on the Series A-7 Notes is includable in the gross income of the holder(s) or owner(s ) of such Series A-7 Notes and either (i) the Commission, after it has been notified by the Intern al Revenue Service, shall not challenge such ruling, assessment, notice or advice in a court of law during the period within which such challenge is permitted or (ii) the Commission shall challenge such ruling, assessment, notice or advice and a court of law shall make a determination, not subject to appeal or review by another court of law, that such ruling, assessment, notice or advice is correctly rendered; (o) any of Moody’s or S&P shall have do wngraded its long-term unenhanced rating of any Senior Debt (as defined in the SMBC A-7 Reimbursement Agreement) of the Commission to below “Baa2” (or its equivalent), or “BBB” (o r its equivalent), respectively, or suspended or withdrawn its rating of the same; or
(p) the passage of any Law (as defined in the SMBC A-7 Reimbursement Agreement) has occurred which could reasonably be expected to have a material adverse effect on the Commission’s ability to perform its obligations under the SMBC A-7 Reimbursement Agreement or the other Basic Documents or to result in a material adverse effect on the enforceability or validity of the SMBC A-7 Reimbursement Agreem ent or any of the other Basic Documents; provided that the Event of Default set forth in th is paragraph (p) shall be null and void and of no further force and effect from and after the date any reimbursement agreement between the Commission and Bank of America, N.A., as pr ovider of a letter of credit supporting any Commercial Paper Notes is terminated or a similar event of default is no longer provided therein.
SMBC A-7 Reimbursement Agreement Remedies
Upon the occurrence of any Event of Defau lt under the SMBC A-7 Reimbursement Agreement, SMBC may exercise any one or more of the following rights and remedies in addition to any other remedies provided in the SMBC A-7 Reimbursement Agreement or by law:
(a) declare all Obligations to be immedi ately due and payable, whereupon the same shall be immediately due and payable without any further notice of any kind, which notice is waived by the Commission; provided, however, that in the case of an Event of Default described in paragraph (e), (f) or (g) above under the subcaption “SMBC A-7 LETTER OF CREDIT AND SMBC A-7 REIMBURSEMENT AGREEMENT—SMBC A-7 Reimbursement Agreement Events of Default,” such acceleration shall automatically occur (unless such automatic acceleration is waived by SMBC in writing); or
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(b) issue a No-Issuance Notice (the effect of which shall be as provided in the SMBC A-7 Reimbursement Agreement), reduce the Stated Amount of the SMBC A-7 Letter of Credit to the amount of the then outstanding Series A-7 Notes supported by the SMBC A-7 Letter of Credit plus a corresponding amount of interest coverage , reduce the Stated Amount of the SMBC A-7 Letter of Credit as the then outstanding Series A-7 Notes are paid, and terminate the SMBC A-7 Letter of Credit when no Series A-7 Notes remain outstanding; or (c) issue the Final Drawing Notice (the effect of which shall be to cause the Termination Date of the SMBC A-7 Letter of Cred it to occur on the fifteenth (15) calendar day after the date of receipt thereof by the Series A-7 Issuing and Paying Agent); or (d) pursue any rights and remedies it may have under the Basic Documents; or (e) pursue any other action available at law or in equity.
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BANK FACILITY FOR THE SERIES A-8 COMMERCIAL PAPER NOTES
BMO BANK A-8 LIQUIDITY FACILITY
[Chapman to review/confirm] The Commission has en tered into a dedicated liquidity facility (the “BMO Bank A-8 Liquidity Facility”) with BMO Bank N.A. (“BMO Bank”) to provide back-up liquidity to pay principal of and accrued interest on maturi ng Series A-8 Notes. The Series A-8 Notes are issued pursuant to the terms of the Issuing and Paying Ag ent Agreement, dated as of November 1, 2025 (the “Series A-8 Issuing and Paying Agent Agreement”), by and between U.S. Bank Trust Company, National Association, as issuing and paying agent (the “Series A-8 Issuing and Paying Agent”), and the Commission.
The following description is a summary of certa in provisions of the BMO Bank A-8 Liquidity Facility. Such summary does not purport to be a comp lete description or restatement of the material provisions of the BMO Bank A-8 Liquidity Facility. Investors should obtain and review a copy of the BMO Bank A-8 Liquidity Facility in order to understand all of the terms of such document. All capitalized terms appearing under this heading “BMO BANK A-8 LI QUIDITY FACILITY” shall have the meanings assigned to them in the BMO Bank A-8 Liquidity Facility.
The Commission has entered into the BMO Bank A-8 Liquidity Facility with BMO Bank. The BMO Bank A-8 Liquidity Facility can be drawn upon by the Commission, subject to compliance with certain conditions as specified in the BMO Bank A-8 Liquidity Facility, in an amount equal to the maximum principal amount of the Series A-8 Notes plus 270 days ’ interest thereon at the rate of 12% per annum calculated on the basis of a year of 360 days.
The stated Commitment Expiration Date of the BMO Bank A-8 Liquidity Facility is November 9, 2028, unless sooner terminated or later extended pursuant to its terms. In the event the Commission issues Subordinated Wastewater Bonds, and after BMO Ba nk has provided notice to the Commission and the Issuing and Paying Agent, the commitment under the BMO Bank A-8 Liquidity Facility will be reduced to the principal amount of the Series A-8 Notes then outst anding. Upon the maturity date of such Series A- 8 Notes, the commitment will be permanently reduced fu rther and upon the final maturity of such Series A-8 Notes, the commitment under the BMO Bank A-8 Li quidity Facility will be terminated. Following receipt of such notice, the Commission will not issue any additional Series A-8 Notes while the BMO Bank A-8 Liquidity Facility is in effect.
Immediate Termination Events
The following constitute Immediate Termina tion Events under the BMO Bank A-8 Liquidity Facility:
Payments. The Commission fails to pay principal of, or interest on, the Revolving Note, the Term Note, any Advance or any Term Loan when the sam e becomes due and payable in accordance with its terms;
Invalidity. (A) Any provision of the Charter, the BMO Bank A-8 Liquidity Facility, the Revolving Note, the Term Note, any Subseries A-8 Note or Su bseries A-8 Note, the Series A-8 Issuing and Paying Agent Agreement, the City Legislation or the Resolutions relating to (x) the ability or the obligation of the Commission to pay, when due, the principal of or interest on the Subseries A-8 Notes and Series A-8-T Notes, the Term Note, the Revolving Note, any Advance or any Term Loan or (y) the lien on or pledge of the Pledged Revenues, at any time, and for any reason, ceases to be valid and binding on the Commission,
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or is declared to be null and void, invalid or unen forceable as the result of a final nonappealable judgment by any federal or state court or as a result of any le gislative or administrative action by any Governmental Authority having jurisdiction over the Commission; or (B) an Authorized Representative of the Commission (i) publicly contests or contests in writi ng any provision of the Charter, the BMO Bank A-8 Liquidity Facility, the Revolving Note, the Term Note , any Subseries A-8 Note or Subseries A-8-T Note, the Series A-8 Issuing and Paying Agent Agreement, the City Legislation or the Resolutions relating to (x) the ability or the obligation of the Commission to pay, when due, the principal of or interest on the Subseries A-8 Notes and Subseries A-8-T Notes, the Term Note, the Revolving Note, any Advance or any Term Loan or (y) the lien on or pledge of the Pledged Revenues or (ii) repudiates or otherwise denies in writing that it has any further liability or obligation under or with respect to any provision of the Charter, the BMO Bank A-8 Liquidity Facility, the Revolving Note, the Term Note, any Subseries A-8 Note or Subseries A-8-T Note, the Series A-8 Issuing and Paying Agent Agreement, the City Legislation or the Resolutions relating to (x) the ability or the obligation of the Commission to pay, when due, the principal of or interest on the Subseries A-8 Notes and Subseries A-8-T Notes, the Term Note, the Revolving Note, any Advance or any Term Loan or (y) the lien on or pledge of the Pledged Revenues; or (C) the State or the Commission has taken or permitted to be ta ken any official action, or has duly enacted any statute, which would adversely affect the enforceability of any provision of the Charter, the BMO Bank A-8 Liquidity Facility, the Revolving Note, the Term Note, any Subseries A-8 Note or Subseries A-8-T Note, the Series A-8 Issuing and Paying Agent Agreement, the City Legislation or the Resolutions relating to (x) the ability or the obligation of the Commission to pay, when due, the principal of or interest on the Subseries A-8 Notes and Subseries A-8-T Notes, the Term Note, the Revolving Note, any Advance or any Term Loan or (y) the lien on or pledge of the Pledged Revenues; or (D) any Governmental Authority with jurisdiction to rule on the validity or enforceability of the Charter, the BMO Bank A-8 Liquidity Facility, the Revolving Note, the Term Note, any Subseries A-8 Note or Subseries A-8-T Note, the Series A-8 Issuing and Paying Agent Agreement, the City Legislation or the Resolutions finds or rules, in a judicial or administrative proceeding, that any provision of the Charter, the BMO Bank A- 8 Liquidity Facility, the Revolving Note, the Term Note, any Subseries A-8 Note or Subseries A-8- T Note, the Series A-8 Issuing and Paying Agent Agreement, the City Legislation or the Resolutions, as the case may be, relating to (x) the ability or the obligation of the Commission to pay, when due, the principal of or interest on the Subseries A-8 Notes and Subseries A-8-T Notes, the Term Note, the Revolving Note, any Advance or any Term Loan or (y) the lien on or pledge of the Pled ged Revenues, is not valid or not bind ing on, or enforceable against, the Commission;
Insolvency, Etc. The Commission or the City and County of San Francisco, directly or indirectly, becomes insolvent or admits in writing its inability to pay its debts as they mature or declares a moratorium or comparable extraordinary restriction on the payment of its debts or apply for, consent to or acquiesce in the appointment of a trustee, custodian, liquidator or receiver for itself or any substantial part of its property, or takes any action to authorize or effect any of the foregoing; or in the absence of any such application, consent or acquiescence, a trustee, custodian, liquidator or receiver is appointed for it or for a substantial part of its property or revenues and is not discharged within a period of sixty (60) days; or the State or any other governmental authority having jurisdiction over the Commission or the City and County of San Francisco imposes a debt moratorium or comparable extraordinary restriction on repayment when due and payable of the principal of or interest on all Parity Debt of the Commission and all of the Subseries A-8 Notes and Subseries A-8-T Notes, the Term Note, the Revolving Note, any Advance or any Term Loan; or all, or any substantial part, of the property of the Commission or the City and County of San Francisco is condemned, seized, or otherwise appropriated, or any bankruptcy, reorganization, debt arrangement or other proceeding under any bankruptcy or insolvency la w or any dissolution or liquidation proceeding is instituted by or against the Commission or the City and County of San Francisco (or any action is taken to authorize or effect the institution by it of any of the foregoing) and if instituted against it, shall be consented to or acquiesced in by it, or shall not be dismissed within a period of sixty (60) days;
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Cross-Default to Senior Debt or Parity Debt. The Commission fails to pay, when due and payable, any principal of or interest on any Senior Debt or any Parity Debt (including, without limitation, any principal or sinking fund installments thereon but excluding Commercial Paper Notes and Other Commercial Paper Notes);
Cross-Default to Commercial Paper Notes. The Commission fails to pay, when due and payable, any interest on any Commercial Paper Notes or Other Commercial Paper Notes (but excluding the interest on Commercial Paper Notes or Other Commercial Pape r Notes issued by or on behalf of the Commission so long as the payment of such interest is supported by a third-party liquidity facility or a third-party credit facility);
Unsatisfied Judgments. A final, nonappealable, judgment or order for the payment of money in excess of $15,000,000, individually or in the aggregat e, is rendered against the Commission and payable from Pledged Revenues and such judgment or order continues unsatisfied and unstayed for a period of sixty (60) days; or
Ratings. The long-term credit ratings assigned by Moody’s and S&P (to the extent then providing a rating) to unenhanced Parity Debt, unenhanced Subordinated Wastewater Bonds or unenhanced Senior Debt is (A) reduced below “Baa3” (or its equivalent ) and “BBB-” (or its equivalent) or (B) withdrawn or suspended for any credit related re asons; provided, that nothing in the BMO Bank A-8 Liquidity Facility requires the Commission to maintain a long-term rati ng on Parity Debt, so long as the only Parity Debt outstanding is the Commercial Paper Notes and related credit and liquidity facilities.
Existence. The dissolution or termination of the exis tence of the Commission if a Governmental Authority does not, contemporaneously with the disso lution or termination of the existence of the Commission, assume the obligations of the Commission under this Agreement and the other Basic Documents to which it is a party related to pay prin cipal of or interest on the Subseries A-8 Notes and Subseries A-8-T Notes, the Revolving Note, the Term Note, any Advance or any Term Loan and Senior Debt or any Parity Debt.
Other Events of Default
The following, together with the Immediate Te rmination Events and the Suspension Events, constitute Events of Default under the BMO Bank A-8 Liquidity Facility:
Representations Untrue . Any representation, warranty, certif ication or statement made by the Commission in the BMO Bank A-8 Liquidity Facility or in any Basic Document or in any certificate, financial statement or other document delivered pursu ant to the BMO Bank A-8 Liquidity Facility or any Basic Document was (in any such case) incorrect or unt rue in any material respect when made or deemed to have been made.
Certain Covenant Defaults . The Commission defaults in the due performance or observance of any term, covenant or agreement contained in certain clauses of the BMO Bank A-8 Liquidity Facility.
Other Covenant Defaults. The Commission defaults in the due performance or observance of any term, covenant or agreement contained in the BMO Bank A-8 Liquidity Facility (other than those covered as set forth under “BMO BANK A-8 LIQUIDITY FACILITY—Immediate Termination Events— Payments” or “Other Events of Default—Certain Cove nant Defaults” above) and such default, if capable of being remedied, remains unremedied for thirty (30) days after the earlier to occur of (i) written notice thereof has given to the Commission by BMO Bank or (ii) an Authorized Representative of the Commission has actual knowledge thereof.
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Other Invalidity. (i) Any material provision of the Charter, the BMO Bank A-8 Liquidity Facility, the Revolving Note, the Term Note, any Subseries A- 8 Note or Subseries A-8-T Note, the Series A-8 Issuing and Paying Agent Agreement, the Resolutions, the City Legislation or the Fee Letter (other than a provision referred to in “BMO BANK A-8 LIQUI DITY FACILITY—Immediate Termination Events— Invalidity”), is declared to be null and void, invalid or unenforceable, including, without limitation, as the result of a final nonappealable judgment by any federal or state court or as a result of any legislative or administrative action by any Governmental Authority having jurisdiction over the Commission; or (ii) an Authorized Representative of the Commission (A) contests any material provision of the Charter, the BMO Bank A-8 Liquidity Facility, the Revolving Note, the Te rm Note, any Subseries A-8 Note or Subseries A- 8-T Note, the Series A-8 Issuing and Paying Agent Agr eement, the Resolutions or the Fee Letter (other than a provision referred to in “BMO BANK A- 8 LIQUIDITY FACILITY—Immediate Termination Events—Invalidity”) or (B) repudiates or otherwise deni es in writing that it has any further liability or obligation under or with respect to any material provision of the Charter, the BMO Bank A-8 Liquidity Facility, the Revolving Note, the Term Note, any Subser ies A-8 Note or Subseries A-8-T Note, the Series A-8 Issuing and Paying Agent Agreement, the Resolutions or the Fee Letter (other than a provision referred to in “BMO BANK A-8 LIQUIDITY FACILITY—Immed iate Termination Events—Invalidity”); or (iii) the State or the Commission has taken or permitted to be taken any official action, or has duly enacted any statute, which would adversely affect the enforceability of any material provision of relating to the Charter, the BMO Bank A-8 Liquidity Facility, the Revolving No te, the Term Note, any Subseries A-8 Note or Subseries A-8-T Note, the Series A-8 Issuing and Pa ying Agent Agreement, the Resolutions, the City Legislation or the Fee Letter (other than a pr ovision referred to in “BMO BANK A-8 LIQUIDITY FACILITY—Immediate Terminati on Events—Invalidity”); (iv) any Governmental Authority with jurisdiction to rule on the validity or enforceability of the Charter, the BMO Bank A-8 Liquidity Facility, the Revolving Note, the Term Note, any Subseries A- 8 Note or Subseries A-8-T Note, the Series A-8 Issuing and Paying Agent Agreement, the Resolutions, the City Legislation or the Fee Letter finds or rules, in a judicial or administrative proceeding, that any material provision of the Charter, the BMO Bank A-8 Liquidity Facility, the Revolving Note, the Term Note , any Subseries A-8 Note or Subseries A-8-T Note, the Series A-8 Issuing and Paying Agent Agreement, the Resolutions, the City Legislation or the Fee Letter (other than a provision referred to in “BMO BANK A-8 LIQUIDITY FACILITY—Immediate Termination Events—Invalidity” is not valid or not binding on, or enforceable agains t, the Commission or (v) a debt moratorium or comparable extraord inary restriction on repayment of debt has been declared or imposed (whether or not in writing) with respect to the F ee Letter, the Subseries A-8 Notes and Subseries A-8-T Notes, the Term Note, the Revolving Note, any Advance or any Term Loan.
Other Cross-Defaults. The Commission fails to pay when due and payable (i) any principal of or interest on any Debt (other than Senior Debt or Parity Debt) in excess of $10,000,000 of the Commission and such failure continues beyond any applicable pe riod of grace specified in any underlying indenture, contract or instrument providing for the creation th ereof or (ii) any princi pal on any Commercial Paper Notes or Other Commercial Paper Notes (other than the Subseries A-8 Notes and Subseries A-8-T Notes) or (iii) defaults in the observance or performance of any agreement or condition relating to any Debt (other than Wastewater Enterprise Debt) aggregating in excess of $10,000,000, or contained in any instrument or agreement evidencing, securing or rela ting thereto, or any other default, event of default or similar event occurs or condition exists, 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) any such Debt to become immediately due and payable in full as the of the acceleration, mandatory redemption or mandatory tender of such Debt (other than Wastewater Enterprise Debt).
Basic Document Default . (i) The Commission defaults in the due performance or observance of any material term, covenant or agreement contained in any other Basic Document and the same is not cured within any applicable cure period or (ii) any “event of default” under any other Basic Document (as defined respectively therein) has occurred.
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Other Payments. The Commission fails to pay (i) any amount required pursuant to the Fee Letter when said amount is due and payable or (ii) a ny amount payable under the BMO Bank A-8 Liquidity Facility within five (5) days after the same is due and after written demand by BMO Bank in respect thereof, other than payments described in “BMO BANK A-8 LIQUIDITY FACILITY—Immediate Termination Events—Payments” and clause (i) of this paragraph.
Taxability. A ruling, assessment, notice of deficiency or technical advice by the Internal Revenue Service is rendered to the effect that interest on the Suberies A-8 Notes is includable in the gross income of the holder(s) or owner(s) of such Suberies A-8 Notes and either (i) the Commission, after it has been notified by the Internal Revenue Service, does not challenge such ruling, assessment, notice or advice in a court of law during the period within which such challenge is permitted or (ii) the Commission challenges such ruling, assessment, notice or advice and a court of law shall make a determination, not subject to appeal or review by another court of law, that such ruling, assessment, notice or advice is correctly rendered.
Other Insolvency. (i) There is commenced against the Commission any case, proceeding or other action of a nature referred to in “BMO BANK A-8 LIQUIDITY FACILITY—Immediate Termination Events—Insolvency, Etc.” above which (A) results in an order for such relief or in the appointment of a receiver or similar official or (B) remains undismissed, undischarged or unbonded for a period of sixty (60) days; or (ii) there is commenced against the Co mmission, any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets or for all or any portion of the Pledged Revenues, which results in the entry of an order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty (60) days from the entry thereof.
Ratings. The long-term credit ratings assigned by Moody’s or S&P to unenhanced Parity Debt or unenhanced Senior Debt shall be (i) reduced below “A3” (or its equivalent) or “A-” (or its equivalent)” or (ii) withdrawn or suspended for any credit related reasons; provided, that nothing in the BMO Bank A-8 Liquidity Facility shall require the Commission to main tain a long-term rating on Parity Debt, so long as the only Parity Debt outstanding is the Commercial Paper Notes and related credit and liquidity facilities.
Cross Acceleration . The Commission (i) defaults in the observance or performance of any agreement or condition relating to any Wastewater En terprise Debt or contained in any instrument or agreement evidencing, securing or rela ting thereto, or any other default, event of default or similar event occurs or condition exists, 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) any such Wastewater Enterprise Debt to become immediately due and payable in full as th e result of the acceleration, mandatory redemption or mandatory tender of such Wastewater Enterprise Debt; or (ii) defaults in the observance or performance of any agreement or condition relating to any Debt (oth er than Wastewater Enterprise Debt) aggregating in excess of $10,000,000, or contained in any instrument or agreement evidencing, securing or relating thereto, or any other default, event of default or similar event occurs or condition exists, 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) any such Debt to become immediately due and payable in full as the result of the acceleration, mandatory redemption or mandatory tender of such Debt (other than Wastewater Enterprise Debt).
Change of Law. The passage of any Law has occurred which could reasonably be expected to have a material adverse effect on the Commission’s abi lity to perform its obligations under BMO Bank A-8 Liquidity Facility or the other Basic Documents or to result in a material adverse effect on the enforceability or validity of this Agreement or any of the other Basic Documents.
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Remedies
(a) Immediate Termination Events . In the case any Event of Default which is an Immediate Termination Event has occurred, (i) the Commitment will immediately and automatically terminate, without notice from BMO Bank, and (ii) all amounts due under the BMO Bank A-8 Liquidity Facility, the Fee Letter and under the Revolving Note and the Term Note will immediately become due and payable; provided, that the Event of Defa ult described in “BMO BANK A-8 LIQUIDITY FACILITY—Immediate Te rmination Events—Payments.” will not qualify as an “Immediate Termination Event” unde r the BMO Bank A-8 Liquidity Facility if the failure to pay the principal of, or interest on, the Revolving Note, the Term Note, any Advance or any Term Loan is due solely to an acceleration thereof by BMO Bank for any reason other than the failure to pay the principal of, or interest on, the Revolving Note, the Term Note, any Advance or any Term Loan; provided, further , that the Event of Default described in BMO BANK A-8 LIQUIDITY FACILITY—Immediate Termination Even ts—Cross-Default to Senior Debt or Parity Debt.” will not qualify as an “Immediate Termination Event” under the BMO Bank A-8 Liquidity Facility if the failure to pay the principal of, or inte rest on, such Senior Debt or Parity Debt is due solely to an acceleration thereof by a provider of credit enhancement or liquidity support with respect thereto for any reason other than the failure to pay the principal of, or interest on, such Senior Debt or Parity Debt.
(b) Suspension Events . In the case of a Default described in “BMO BANK A-8 LIQUIDITY FACILITY—Other Events of Default—Ot her Insolvency.” (a “Suspension Event”), the Commitment will be immediately suspended without notice or demand and, thereafter, BMO Bank will be under no obligation to make Advances or Term Loans under the BMO Bank A-8 Liquidity Facility until the Available Commitment is reinstated as described in the BMO Bank A- 8 Liquidity Facility. Promptly upon the occurrence of any such Suspension Event, BMO Bank will notify the Commission, the Series A-8 Issuing and Paying Agent and the Dealer of such suspension and the effective date of such suspension in wr iting by facsimile, promptly confirmed by regular mail; provided, that BMO Bank will incur no liability of an y kind by reason of its failure to give such notice and such failure will in no way affect the suspension of the Available Commitment or its obligation to make Advances or Term Loans pursuant to the BMO Bank A-8 Liquidity Facility.
The Commission will promptly direct the Series A-8 Issuing and Paying Agent to notify all Holders of a suspension of the obligation of BMO Bank to make Advances and Term Loans as a result of the occurrence of such Suspensi on Event. Upon the occurren ce of a Suspension Event, the Commitment will immediately and automatically suspended and remain suspended until the case, proceeding or other action referred to therein is either dismissed, discharged or bonded within sixty (60) days from the commencement of such case, pr oceeding or action, or the date on which BMO Bank’s obligations under the BMO Bank A-8 Liquid ity Facility have termin ated or expired in accordance with the terms hereof (the “Termination Date”) occurs, whichever is first. In the event that said Suspension Event has been dismissed, di scharged or bonded within the sixty (60) day period described therein and prior to the Termin ation Date, then the Available Commitment and the obligation of BMO Bank to make Advances and Term Loans will be reinstated and the terms of the BMO Bank A-8 Liquidity Facility will continue in full force and effect as if there had been no such suspension (unless the Commitment Peri od will otherwise have been terminated, suspended or expired as provided in the BMO Bank A-8 Liquidity Facility). In the event that said Suspension Event is not dismissed, discharged or bonded within said sixty (60) day period when the Termination Date occurs, then the Available Commitment and the obligation of BMO Bank to make Advances and Term Loans will terminate on the Termination Date without notice or demand and, thereafter, BMO Bank will be under no oblig ation to make such Advances and Term Loans under the BMO Bank A-8 Liquidity Facility.
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(c) All Events of Default. In the case of any Event of Default, including any Immediate Termination Event or a Suspension Event that has occurred and is continuing, BMO Bank (i) may by written notice to the Commission declare a ll amounts due under the BMO Bank A-8 Liquidity Facility, under the Fee Letter or under the Revolving Note or the Term Note to be immediately due and payable, whereupon the same will immediately become due and payable, (ii) may by written notice to the Commission and the Series A-8 I ssuing and Paying Agent (an “EoD No-Issuance Notice”) in substantially the form of Exhibit H to the BMO Bank A-8 Liquidity Facility declare the Available Principal Commitment to be reduced to the principal amount of Subseries A-8 Notes and Subseries A-8-T Notes then outstanding and to be permanently reduced further on the maturity date of each such Subseries A-8 Note and Subseries A-8-T Note by an amount equal to the principal amount of such Subseries A-8 Note and Subser ies A-8-T Note with the Commitment to be terminated upon the last maturity date applicable to all such Subseries A-8 Notes and Subseries A- 8-T Notes and the Available Inte rest Commitment shall immediately be reduced to the amount of interest to accrue on such outstanding Subseri es A-8 Notes and Subseries A-8-T Notes, and the Available Commitment shall be further reduced in a similar manner as and when the Subseries A- 8 Notes and Subseries A-8-T Notes mature, (iii) may petition a court of competent jurisdiction to issue a mandamus order to the Commission to compel specific performance of the covenants of the Commission contained in the Resolutions or here in and (iv) may pursue any other rights or remedies under the BMO Bank A-8 Liquidity Facility , the Fee Letter, the Resolutions, any other Basic Document, applicable law or otherwise. Except as expressly provided in the BMO Bank A- 8 Liquidity Facility, procurement, demand, protest and all other notices of every kind are expressly waived in the BMO Bank A-8 Liquidity Facility. Following receipt of an EoD No-Issuance Notice, the Commission shall not issue any additional Subseries A-8 Notes and Subseries A-8-T Notes. (d) Timing of EoD No-Issuance Notice. An EoD No-Issuance Notice that is received by the Commission at or before 3:00 p.m. (New York City time) will be effective when received.
An EoD No-Issuance Notice that is received by Commission after 3:00 p.m. (New York City time) will not be effective until the opening of business on the next succeeding Business Day. (e) Copies of Notices. Concurrently with the occurrence of an Immediate Termination Event pursuant to the BMO Bank A-8 Liquidity F acility or an EoD No-Issuance Notice pursuant to the BMO Bank A-8 Liquidity Facility, the Commission will give notice to the Series A-8 Issuing and Paying Agent and the Dealers.
In addition, concurrently with giving such notice to the Commission and the Series A-8 Issuing and Paying Agent, BMO Bank will provide a copy thereof to the Dealers at their respective addresses referred to in the BMO Bank A-8 Liquidity Facility; provided, however, that BMO Bank will not incur any liability as a result of its failure to provide a copy of such a notice in accordance with this sentence.
Related Covenants
Under the related Series A-8 Issuing and Paying Agent Agreement, the Commission covenants to maintain in effect the BMO Bank A-8 Liquidity Facility or an Alternate Facility meeting the requirements of such Series A-8 Issuing and Paying Agent Agreement at all times that Series A-8 Notes are Outstanding thereunder. The Commission further covenants that if it is unable to obtain a commitment for an Alternate Facility at least 90 days prior to the Commitment Expiration Date, it shall use its best efforts, to the extent permitted by law, to endeavor to re finance such outstanding Series A- 8 Notes or Bank Notes, as the case may be.
The Commission shall deliver written notice of a proposed Alternate Facility to the Series A-8 Issuing and Paying Agent, BMO Bank, the City and each Dealer not less than 45 days prior to the
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substitution date. The Series A-8 Issuing and Paying Agent shall deliver written notice of such substitution to the registered Holders of Series A-8 Notes at least 30 days prior to the substitution date. [Remainder of page left blank intentionally.]
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APPENDIX B
THE BANKS
TABLE OF CONTENTS
Page
BANK OF AMERICA, N.A. .................................................................................................................... B-2 BMO BANK N.A. .................................................................................................................................... B-4
SUMITOMO MITSUI BANKING CORPORATION, ACTING THROUGH ITS NEW YORK BRANCH .................................................................................................................................... B-[5] TD BANK, N.A.. .................................................................................................................................... B-[6] TRUIST BANK ..................................................................................................................................... B-[8]
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The following information has been furnished by the Banks for use in this Offering Memorandum.
Such information has not been independently confirmed or verified by the Commission. No representation is made herein by the Commission as to the accuracy or adequacy of such information subsequent to the date hereof, or that the information contained and incorporated herein by reference is correct. The Commission has assumed no obligation to update such information in the future, or to advise of any adverse change in the financial condition of the Banks. Invest ors are advised to obtain and carefully review any financial reports and other informa tion published after the date hereof about the Banks prior to making a decision to purchase the Commercial Paper Notes.
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Bank of America, N.A.
[To be updated prior to posting]
Bank of America, N.A. (“Bank of America”) is a national banking association organized under the laws of the United States, with its principal executiv e offices located in Charlotte, North Carolina. Bank of America is a wholly-owned indirect subsidiary of Bank of America Corporation (the “Corporation”) and is engaged in a general consumer banking, commercial banking and trus t business, offering a wide range of commercial, corporate, international, financial market, retail and fiduciary banking services. As of March 31, 2024, Bank of America had consolidated assets of $2.550 trillion, consolidated deposits of $2.048 trillion and stockholder’s equity of $237.333 billion based on regulatory accounting principles.
The Corporation is a bank holding company and a financial holding company, with its principal executive offices located in Charlotte, North Carolina. Additional information regarding the Corporation is set forth in its Annual Report on Form 10-K for the fiscal year ended December 31, 2023, together with its subsequent periodic and current reports filed with the Securities and Exchange Commission (the “SEC”).
The SEC maintains a website at www.sec.gov which contains the filings that the Corporation files with the SEC such as reports, proxy statements and other documentation. The reports, proxy statements and other information the Corporation files with the SEC are also available at its website, www.bankofamerica.com.
The information concerning the Corporation and Ba nk of America is furnished solely to provide limited introductory information and does not purport to be comprehensive. Such information is qualified in its entirety by the detailed information appearing in the referenced documents and financial statements referenced therein.
Bank of America will provide copies of the most recent Bank of America Corporation Annual Report on Form 10-K, any subsequent reports on Form 10-Q, and any required reports on Form 8-K (in each case, as filed with the SEC pursuant to the S ecurities Exchange Act of 1934, as amended), and the publicly available portions of the most recent quarter ly Call Report of Bank of America delivered to the Comptroller of the Currency, without charge, to each person to whom this document is delivered, on the written request of such person. Written requests should be directed to:
Bank of America Corporation
Office of the Corporate Secretary/Shareholder Relations One Bank of America Center
100 North Tryon Street, NC1-007-56-06
Charlotte, North Carolina 28255
PAYMENTS OF PRINCIPAL AND INTEREST ON THE SERIES A-2 NOTES AND THE SERIES A-6 NOTES WILL BE MADE FROM DRAWINGS OR ADVANCES UNDER THE BANK OF AMERICA A-2 LETTER OF CREDIT AND THE BANK OF AMERICA SERIES A-6 LIQUIDITY FACILITY, RESPECTIVELY. PAYMENTS OF THE PURCHASE PRICE OF THE SERIES A-2 NOTES AND THE SERIES A-6 NOTES WILL BE MADE FROM DRAWINGS UNDER THE BANK OF AMERICA A-2 LETTER OF CREDIT AND THE BANK OF AMERICA SERIES A-6 LIQUIDITY FACILITY, RESPECTIVELY, IF REMARKETING PROCEEDS ARE NOT AVAILABLE.
ALTHOUGH THE BANK OF AMERICA A-2 LETTER OF CREDIT AND THE BANK OF AMERICA SERIES A-6 LIQUIDITY FACILITY ARE EACH A BINDING OBLIGATION OF THE BANK, THE SERIES A-2 NOTES AND THE SERIES A-6 NOTES, RESPECTIVELY, ARE NOT DEPOSITS OR
OBLIGATIONS OF THE CORPORATION OR ANY OF ITS AFFILIATED BANKS AND ARE NOT
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GUARANTEED BY ANY OF THESE ENTITIES. THE SERIES A-2 NOTES AND THE SERIES A-6
NOTES ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENTAL AGENCY AND ARE SUBJECT TO CERTAIN INVESTMENT RISKS, INCLUDING POSSIBLE LOSS OF THE PRINCIPAL AMOUNT INVESTED.
The delivery of this information shall not create a ny implication that there has been no change in the affairs of the Corporation or Bank of America since the date of the most recent filings referenced herein, or that the information contained or referred to under this caption is correct as of any time subsequent to the referenced date.
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BMO Bank N.A.
BMO Bank N.A. (“BBNA”), with executive offices in Chicago, Illinois, is a wholly-owned subsidiary of BMO Financial Corp., a Delaware corporation (“BFC”). BFC is based in Chicago and wholly- owned by Bank of Montreal (“BMO”) (NYSE, TSX: BMO). BFC operates primarily through its subsidiary BBNA, which provides banking, financing, investing and cash management services in the United States.
BMO brands the organization’s member companies as BMO Financial Group (“BMO FG”). BMO FG is a highly diversified financial services provider based in North America, providing a broad range of products and services directly and through Canadian and non-Canadian subsidiaries, offices, and branches.
Additional information about BBNA and BMO is available on SEDAR (http://www.sedar.com), EDGAR (http://www.sec.gov) and on BMO’s we bsite (https://www.bmo.com/main/about- bmo/banking/investor-relations), or will be provided without charge upon written request directed to: Bank of Montreal, Corporate Secretary’s Department, 100 King Street West, 1 First Canadian Place, 9th Floor, Toronto, Ontario M5X 1A1. The financial information referenced in this paragraph is not incorporated by reference into this Appendix B.
The BMO Bank A-8 Liquidity Facility is an obligation solely of BBNA and is not an obligation of, or otherwise guaranteed by, BFC, BMO or any of th eir respective affiliates (o ther than BBNA). Neither BFC, BMO or any of their respective affiliates (other than BBNA) is required to make payments under the BMO Bank A-8 Liquidity Facility. None of BBNA, BFC, BMO or any of their respective affiliates makes any representation as to, or is responsible for the suit ability of the Series A-8 Notes for any investor, the feasibility or performance of any project or compliance with any securities or tax laws or regulations. The Series A-8 Notes are not direct obligations of, or guaranteed by, the BBNA, BFC, BMO or any of their respective affiliates.
The above information has been supplied by BBNA. The delivery of the information in this Appendix B shall not create any implication that there has been no change in the affairs of BMO or BBNA since the date such information was provided by BBNA, or that the information contained or referred to in this Appendix B is correct as of any time subsequent to the date it was provided by BBNA. [Remainder of page left blank intentionally.]
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Sumitomo Mitsui Banking Corporation, acting through its New York Branch [To be updated prior to posting]
Sumitomo Mitsui Banking Corporation (Kabushiki Kaisha Mitsui Sumitomo Ginko) (“SMBC”) is a joint stock corporation with limited liability (Kabushiki Kaisha) under the laws of Japan. The registered head office of SMBC is located at 1-1-2, Marunouchi, Chiyoda-ku, Tokyo, 100-0005, Japan.
SMBC was established in April 2001 through the merger of two leading banks, The Sakura Bank, Limited and The Sumitomo Bank, Limited. In D ecember 2002, Sumitomo Mitsui Financial Group, Inc. (“SMFG”) was established through a statutory share transfer (kabushiki-iten) as a holding company under which SMBC became a wholly-owned subsidiary.
SMBC is one of the world’s leading commercial banks and provides an extensive range of banking services to its customers in Japan and overseas. In Japan, SMBC accepts deposits, makes loans and extends guarantees to corporations, individuals, governments and governmental entities. It also offers financing solutions such as syndicated lending, structured finan ce and project finance. SMBC also underwrites and deals in bonds issued by or under the guarantee of the Japanese government and local government authorities, and acts in various administrative and a dvisory capacities for certain types of corporate and government bonds. Internationally, SMBC operates through a network of branches, representative offices, subsidiaries and affiliates to provide many financing products, including syndicated lending and project finance.
The New York Branch of SMBC is licensed by th e New York State Department of Financial Services to conduct branch banking business at 277 Park Avenue, New York, New York, and is subject to examination by the New York State Department of Financial Services and the Federal Reserve Bank of New York.
Financial and Other Information
Audited consolidated financial statements for SMFG and its consolidated subsidiaries, as well as other corporate data, financial information and analy ses, are available in English on SMFG’s website at www.smfg.co.jp/english. The information on SMFG’s website does not form part of this Offering Memorandum and is not incorporated herein by refe rence. SMBC does not accept any responsibility for any information contained in this Offering Memora ndum other than the information relating to SMBC, acting through its New York Branch.
The delivery of this Offering Memorandum shall not create any implication that there has been no change in the affairs of SMBC since the date hereof, or that the information contained or referred to herein is correct as of any time subsequent to its date.
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TD Bank, N.A.
[To be updated prior to posting]
TD Bank, N.A. (the “Bank”) is a national banki ng association organized under the laws of the United States, with its main office located in Wilmi ngton, Delaware. The Bank is an indirect, wholly- owned subsidiary of The Toronto- Dominion Bank (“TD”) and offers a full range of banking services and products to individuals, businesses and governments thro ughout its market areas, including commercial, consumer and trust services and indirect automobile d ealer financing. The Bank operates banking offices in Connecticut, Delaware, the District of Columb ia, Florida, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, North Carolina, New York, Pennsylvania, Rhode Island, South Carolina, Vermont and Virginia. As of March 31, 2024, the Bank had consolidated assets of $369. 8 billion, consolidated deposits of $298.3 billion and stockho lder's equity of $46.7 billion, based on regulatory accounting principles.
Additional information regarding the foregoing, and the Bank and TD, is available from the filings made by TD with the U.S. Secur ities and Exchange Commission (the “SEC”), which filings can be inspected and copied at the public reference facilit ies maintained by the SEC at 100 F Street, N.E., Washington, D.C. 20549, at prescribed rates. In addition, the SEC maintains a website at http://www.sec.gov, which contains reports, proxy statem ents and other information regarding registrants that file such information electronically with the SEC.
The information concerning TD and the Bank contai ned herein is furnished solely to provide limited introductory information and does not purport to be comprehensive. Such information is qualified in its entirety by the detailed information appearing in the documents and financial statements referenced herein.
The TD Bank A-4 Liquidity Facility has been deliv ered by the Bank and is the obligation of the Bank and not TD.
The Bank will provide copies of the publicly availa ble portions of the most recent quarterly Call Report of the Bank delivered to the Comptroller of th e Currency, without charge, to each person to whom this document is delivered, on the written request of such person. Written requests should be directed to:
TD Bank, N.A.
1701 Route 70 East
Cherry Hill, New Jersey 08034
Attn: Corporate and Public Affairs
Information regarding the financial condition and results of operations of the Bank is contained in the quarterly Call Reports of the Bank delivered to the Comptroller of the Currency and available online at https://cdr.ffiec.gov/public. General information regarding the Bank may be found in periodic filings made by TD with the SEC. TD is a foreign issuer that is permitted, under a multijurisdictional disclosure system adopted by the United States, to prepare certain fili ngs with the SEC in accordance with the disclosure requirements of Canada, its home country. Canadian disclosure requirements are different from those of the United States. TD’s financial statements are prepared in accordance with International Financial Reporting Standards, and may be s ubject to Canadian auditing and a uditor independence standards, and thus may not be comparable to financial statements of United States companie s prepared in accordance with United States generally accepted accounting principles.
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The delivery hereof shall not create any implication that there has been no change in the affairs of TD or the Bank since the date hereof, or that the information contained or referred to in this Appendix B is correct as of any time subsequent to its date.
NEITHER TD NOR ANY OTHER SUBSIDIARY OF TD OTHER THAN THE BANK IS OBLIGATED TO MAKE PAYMENTS UNDER THE TD BANK A-4 LIQUIDITY FACILITY.
The Bank is responsible only for the information contained in this section of the Offering Memorandum and did not participate in the preparation of, or in any way verify the information contained in, any other part of the Offering Memorandum. Accordingly, the Bank assumes no responsibility for and makes no representation or warranty as to the accuracy or completeness of information contained in any other part of the Offering Memorandum.
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Truist Bank
[To be updated prior to posting]
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APPENDIX C
BOOK-ENTRY SYSTEM FOR COMMERCIAL PAPER NOTES
General
The following commercial paper notes for each of the following has been registered in the name of Cede & Co., as nominee of The Depository Trust Company (“DTC”), New York, NY: (i) one commercial paper note in the aggregate principal amount not exceeding the $150,000,000 available to secure the Commercial Paper Notes (Wastewater Series, Propo sition E) Series A-1 (Tax Exempt) under the SMBC A-1 Letter of Credit; (ii) one commercial paper note in the aggregate principal amount not exceeding the $150,000,000 available to secure th e Commercial Paper Notes (Wastewater Series, Proposition E) Series A-2 (Tax Exempt) under the Bank of America A-2 Letter of Credit; (iii) two commercial paper notes in the collective, aggregate principal amount not exceeding the $100,000,000 available to secure the Commercial Paper Notes (Wastewater Series, Proposition E) Series A-3, consisting of Tax-Exempt Subseries A-3 and Taxable Subseries A-3-T under the Bank of America A-3 Letter of Credit; (iv) one commercial paper note in the aggregate principal amount not exceeding the $150,000,000 available to secure the Commercial Paper Notes (Wastewater Series, Proposition E) Series A- 4 (Tax Exempt) under the TD Bank A-4 Liquidity Facility; (v) two commercial paper notes in the coll ective, aggregate principal amount not exceeding the $125,000,000 available to secure th e Commercial Paper Notes (Wastewater Series, Proposition E) Series A-5, consisting of Tax-Exempt Subseries A-5 and Taxable Subseries A-5-T under the Truist Bank A-5 Letter of Credit; (vi) two commerci al paper notes in the collective, aggregate principal amount not exceeding the $125,000,000 available to secure the Commercial Paper Notes (Wastewater Series, Proposition E) Series A-6, consisti ng of Tax-Exempt Subseries A-6 and Taxable Subseries A-6-T under the Bank of America A-6 Liquidity Facility; (v) one commercial paper note in the aggregate principal amount not exceeding the $100,000,000 available to secu re the Commercial Paper Notes (Wastewater Series, Proposition E) Series A-7 (Tax Exempt) un der the SMBC A-7 Letter of Credit; and (vi) two commercial paper notes in the collective, aggr egate principal amount not exceeding the $150,000,000 available to secure the Commercial Paper Notes (Wastewater Series, Proposition E) Series A-8, consisting of Tax-Exempt Subseries A-8 and Taxable Subseries A-8-T. DTC will act as securities depository for the Commercial Paper Notes.
Book-Entry System
DTC will act as securities depository for the Commer cial Paper Notes. The Commercial Paper Notes will be issued as fully-registered securities registered in the name of Cede & Co. (DTC’s partnership nominee) or such other name as may be requested by an authorized representative of DTC. One fully- registered security certificate will be issued for th e Commercial Paper Notes, in the aggregate principal amount of the Commercial Paper Notes, and will be deposited with DTC.
DTC, the world’s largest depository, is a limited-purpose trust company organized under the New York Banking Law, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporat ion” within the meaning of the New York Uniform Commercial Code, and a “clearing agency” registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds and pr ovides asset servicing for over 3.5 million issues of U.S. and non-U.S. equity issues, corporate and municipal debt issues, and money market instruments from over 100 countries that DTC’s participants (“Direct Participants”) deposit with DTC. DTC also facilitates the post-trade settlement among Direct Participants of sales and other securities transactions in deposited securities, through electronic computerized book-entry transfers and pledges between Direct Participants’ accounts. This eliminates the need for physical movement of securities certificates.
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Direct Participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations, and certain other or ganizations. DTC is a wholly-owned subsidiary of The Depository Trust & Clearing Corporation (“DT CC”). DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, and clearing corporations that clear through or maintain a custodial relationship with a Direct Participant, either directly or indirectly (“Indirect Participants”). DTC has Standard & Poor’s rating: AA+.
The DTC Rules applicable to its Participants are on file with the Securities and Exchange Commission.
More information about DTC can be found at www.dtcc.com and www.dtc.org.
Purchases of the Commercial Paper Notes under th e DTC system must be made by or through Direct Participants, which will receive a credit for the Commercial Paper Notes on DTC’s records. The ownership interest of each actual purchaser of each Commercial Paper Note (“Beneficial Owner”) is in turn to be recorded on the Direct and Indirect Participants’ records. Beneficial Owners will not receive written confirmation from DTC of their purchase. Beneficial Owners are, however, expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the Direct or Indirect Participant through which the Benefi cial Owner entered into the transaction. Transfers of ownership interests in the Commercial Paper Notes are to be accomplished by entries made on the books of Direct and Indirect Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership inte rests in the Commercial Paper Notes, except in the event that use of the book-entry system for the Commercial Paper Notes is discontinued.
To facilitate subsequent transfers, all Commercia l Paper Notes deposited by Direct Participants with DTC are registered in the name of DTC’s part nership nominee, Cede & Co., or such other name as may be requested by an authorized representative of DTC. The deposit of the Commercial Paper Notes with DTC and their registration in the name of Cede & Co. or such other DTC nominee do not effect any change in beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of the Commercial Paper Notes; DTC’s records reflect only the identity of the Direct Participants to whose accounts such Commercial Paper Notes are credited, which may or ma y not be the Beneficial Owners. The Direct and Indirect Participants will remain responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial Owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time. Beneficial Owners of the Commercial Paper Notes may wish to take certain steps to augment the transm ission to them of notices of signifi cant events with respect to the Commercial Paper Notes. For example, Beneficial Owners may wish to provide their names and addresses to the registrar and request that copies of notices be provided directly to them.
Neither DTC nor Cede & Co. (nor any other DTC nominee) will consent or vote with respect to the Commercial Paper Notes unless authorized by a Direct Participant in accordance with DTC’s Procedures. Under its usual procedures, DTC mails an Omnibus Proxy to the issuer as soon as possible after the record date. The Omnibus Proxy assigns Cede & Co.’s consenting or voting rights to those Direct Participants to whose accounts the Commercial Paper Notes are credited on the record date (identified in a listing attached to the Omnibus Proxy).
Payments of principal of and interest on the Commercial Paper Notes will be made to Cede & Co., or such other nominee as may be requested by an author ized representative of DTC. DTC’s practice is to credit Direct Participants’ accounts upon DTC’s receipt of funds and corresponding detail information from
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the Commission or the Issuing and Paying Agent, on payable date in accordance with their respective holdings shown on DTC’s records. Payments by Partic ipants to Beneficial Owners will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in “street na me,” and will be the respons ibility of such Participant and not of DTC (nor its nominee), the Issuing and Paying Agent, or the Commission, subject to any statutory or regulatory requirements as may be in effect from tim e to time. Payment of principal of and interest evidenced by the Commercial Paper No tes to Cede & Co. (or such other nominee as may be requested by an authorized representative of DTC) is the respons ibility of the Commission or the Issuing and Paying Agent, disbursement of such paymen ts to Direct Participants will be the responsibility of DTC, and disbursement of such payments to th e Beneficial Owners will be the r esponsibility of Direct and Indirect Participants.
NEITHER THE COMMISSION NOR THE ISSUING AND PAYING AGENT WILL HAVE
ANY RESPONSIBILITY OR OBLIGATION TO DTC PARTICIPANTS, INDIRECT PARTICIPANTS
OR BENEFICIAL OWNERS WITH RESPECT TO THE PAYMENTS OR THE PROVIDING OF NOTICE TO DTC PARTICIPANTS, INDIRECT PARTICIPANTS OR BENEFICIAL OWNERS.
Neither the Commission nor the Issuing and Paying Agent can give any assurances that DTC, DTC Participants, Indirect Participants or others will di stribute payments of principal of and interest on the Commercial Paper Notes paid to DTC or its nominee, as the registered Owner, or any redemption or other notice, to the Beneficial Owners or that they will do so on a timely basis or that DTC will serve and act in a manner described in this Offering Memorandum.
Discontinuation of the Book-Entry Only System
DTC may discontinue providing its services as securities depository with respect to the Commercial Paper Notes at any time by giving reasonable notice to the Commission or the Issuing and Paying Agent.
Under such circumstances, in the event that a successor securities depository is not obtained, Commercial Paper Note certificates will be printed and delivered as described in the Issuing and Paying Agent Agreement.
The Commission may decide to discontinue use of the system of book-entry transfers through DTC (or a successor securities depository). In that event, Commercial Paper Note certificates will be printed and delivered as described in the Issuing and Paying Agent Agreement.
SO LONG AS CEDE & CO. IS THE REGISTERED OWNER OF THE COMMERCIAL PAPER
NOTES, AS NOMINEE OF DTC, REFERENCES HEREIN TO THE OWNERS OR HOLDERS OF THE COMMERCIAL PAPER NOTES (OTHER T HAN UNDER THE CAPTION “TAX MATTERS” HEREIN) SHALL MEAN CEDE & CO. AND SHALL NOT MEAN THE BENEFICIAL OWNERS OF THE COMMERCIAL PAPER NOTES.
NEITHER THE COMMISSION, THE ISSUING AND PAYING AGENT, NOR THE DEALERS
WILL HAVE ANY RESPONSIBILITY OR OBLIGATION TO DTC DIRECT PARTICIPANTS,
INDIRECT PARTICIPANTS, OR TO ANY BENEFICIAL OWNER WITH RESPECT TO (I) THE
ACCURACY OF ANY RECORDS MAINTAINED BY DTC, ANY DTC DIRECT PARTICIPANT, OR INDIRECT PARTICIPANT; (II) THE DELIVERY OF ANY NOTICE THAT IS PERMITTED OR
REQUIRED TO BE GIVEN TO THE OWNERS OF THE COMMERCIAL PAPER NOTES UNDER THE ISSUING AND PAYING AGENT AGREEMENT; (III) THE PAYMENT BY DTC OR ANY DTC
DIRECT PARTICIPANT OR INDIRECT PARTIC IPANT OF ANY AMOUNT WITH RESPECT TO THE PRINCIPAL OR INTEREST DUE WITH R ESPECT TO THE COMMERCIAL PAPER NOTES;
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(IV) ANY CONSENT GIVEN OR OTHER ACTION TAKEN BY DTC AS THE REGISTERED OWNER OF COMMERCIAL PAPER NOTES; OR (V) ANY OTHER MATTER.
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APPENDIX D
FORM OF OPINION OF BOND COUNSEL
[Attached]
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APPENDIX E
WASTEWATER ENTERPRISE FINANCIAL STATEMENTS
[Attached]
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