EXHIBIT B TO RESOLUTION
FORM OF PAYING AGENT AGREEMENT
$__________
CITY OF EMERYVILLE
(Alameda County, California)
2023 General Obligation Bonds
(Federally Taxable)
PAYING AGENT/BOND REGISTRAR/COSTS OF ISSUANCE AGREEMENT THIS PAYING AGENT/BOND REGISTRAR/COSTS OF ISSUANCE AGREEMENT (this “Agreement”), is entered into as of May 1, 2023, by and between the CITY OF EMERYVILLE (the “City”) and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. (the “Bank”), relating to the $________ City of Emeryville (Alameda County, California) 2023 General Obligation Bonds (Federally Taxable) (the “Bonds”). The City hereby appoints the Bank to act as Paying Agent, Transfer Agent and Bond Registrar for the Bonds and as Custodian and Disbursing Agent for the payment of costs of issuance relating to the Bonds.
RECITALS
WHEREAS, the City has duly authorized and provided for the issuance of the Bonds as fully registered bonds without coupons; WHEREAS, the City will ensure all things necessary to make the Bonds the valid obligations of the City, in accordance with their terms and the requirements of State of California law, will be done upon the issuance and delivery thereof; WHEREAS, the City and the Bank wish to provide the terms under which the Bank will act as Paying Agent to pay the principal, redemption premium (if any) and interest on the Bonds, in accordance with the terms thereof, and under which the Bank will act as Bond Registrar for the Bonds; WHEREAS, the City and the Bank also wish to provide the terms under which the Bank will act as Custodian and Disbursing Agent for the payment of costs of issuance relating to the Bonds; WHEREAS, the Bank has agreed to serve in such capacities for and on behalf of the City and has full power and authority to perform and serve as Paying Agent, Transfer Agent and Bond Registrar for the Bonds and as Custodian and Disbursing Agent for the payment of costs of issuance relating to the Bonds; and WHEREAS, the City has duly authorized the execution and delivery of this Agreement; and all things necessary to make this Agreement a valid agreement have been done.
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions.
For all purposes of this Agreement except as otherwise expressly provided or unless the context otherwise requires:
“Bank” means The Bank of New York Mellon Trust Company, N.A., a national banking association organized and existing under the laws of the United States of America. “Bond Register” means the book or books of registration kept by the Bank in which are maintained the names and addresses of, and principal amounts registered to, each Registered Owner. “Bond Registrar” means the Bank when it is performing the function of registrar for the Bonds. “Bond Resolution” means Resolution No. ____ of the City Council of the City adopted on February 21, 2023, pursuant to which the Bonds were issued. “Bond” or “Bonds” means any one or all of the $________ City of Emeryville (Alameda County, California) 2023 General Obligation Bonds (Federally Taxable). “City” means City of Emeryville.
“City Request” means a written request signed in the name of the City and delivered to the Bank. “Closing Date” means May 10, 2023 2021, the date of delivery of the Bonds by the Underwriter. “Custodian and Disbursing Agent” means the Bank when it is performing the function of custodian and disbursing agent for the payment of costs of issuance relating to the Bonds. “Fiscal Year” means the fiscal year of the City ending on June 30 of each year. “Paying Agent” means the Bank when it is performing the function of paying agent for the Bonds. “Person” means any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision of a government or any entity whatsoever. “Registered Owner” means a Person in whose name a Bond is registered in the Bond Register. “Stated Maturity” when used with respect to any Bond means the date specified in the Bond Resolution as the date on which the principal of such Bond is due and payable. “Transfer Agent” means the Bank when it is performing the function of transfer agent for the Bonds. “Underwriter” means ______________.
ARTICLE TWO
APPOINTMENT OF BANK AS PAYING AGENT, TRANSFER AGENT, BOND REGISTRAR AND CUSTODIAN AND DISBURSING AGENT Section 2.01. Appointment and Acceptance. The City hereby appoints the Bank to act as Paying Agent and Transfer Agent with respect to the Bonds, to pay to the Registered Owners in accordance with the terms and provisions of this Agreement and the Bond Resolution, the principal of, redemption premium (if any), and interest on all or any of the Bonds.
The City hereby appoints the Bank as Bond Registrar with respect to the Bonds. As Bond Registrar, the Bank shall keep and maintain for and on behalf of the City, books and records as to the ownership of the Bonds and with respect to the transfer and exchange thereof as provided herein and in the Bond Resolution.
The City hereby appoints the Bank as Custodian and Disbursing Agent.
The Bank hereby accepts its appointment, and agrees to act as Paying Agent, Transfer Agent, Bond Registrar and Custodian and Disbursing Agent.
Section 2.02. Compensation. As compensation for the Bank’s services as Paying Agent and Bond Registrar, the City hereby agrees to pay the Bank the fees and amounts set forth in Exhibit C attached hereto.
In addition, the City agrees to reimburse the Bank, upon its request, for all reasonable and necessary out-of-pocket expenses, disbursements, and advances, including without limitation the reasonable fees, expenses, and disbursements of its agents and attorneys, made or incurred by the Bank in connection with entering into and performing under this Agreement and in connection with investigating and defending itself against any claim or liability in connection with its performance hereunder.
ARTICLE THREE
PAYING AGENT
Section 3.01. Duties of Paying Agent. As Paying Agent, the Bank, provided sufficient collected funds have been provided to it for such purpose by or on behalf of the City, shall pay on behalf of the City the principal of, and interest on each Bond in accordance with the provisions of the Bond Resolution.
Section 3.02. Payment Dates. The City hereby instructs the Bank to pay the principal of and interest on the Bonds on the dates specified in the debt service schedule attached hereto as Exhibit A.
ARTICLE FOUR
BOND REGISTRAR
Section 4.01. Initial Delivery of Bonds. The Bonds will be initially registered and delivered to the Underwriter as one Bond for each maturity. If the Underwriter delivers a written request to the Bank not later than five business days prior to the date of initial delivery, the Bank will, on the date of initial delivery, deliver Bonds of authorized denominations, registered in accordance with the instructions in such written request.
Section 4.02. Duties of Bond Registrar. The Bank shall provide for the proper registration of transfer, exchange and replacement of the Bonds. Every Bond surrendered for transfer or exchange shall be duly endorsed or be accompanied by a written instrument of transfer, the signature on which has been guaranteed by an eligible guarantor institution, in form acceptable to the Bank, duly executed by the Registered Owner thereof or his attorney duly authorized in writing. The Bond Registrar may request any supporting documentation it deems necessary or appropriate to effect a re-registration.
Section 4.03. Unauthenticated Bonds. The City shall provide to the Bank on a continuing basis, an adequate inventory of unauthenticated Bonds to facilitate transfers. The Bank agrees that it will maintain such unauthenticated Bonds in safekeeping.
Section 4.04. Form of Bond Register. The Bank as Bond Registrar will maintain its records as Bond Registrar in accordance with the Bank’s general practices and procedures in effect from time to time.
Section 4.05. Reports. The City may request the information in the Bond Register at any time the Bank is customarily open for business, provided that reasonable time is allowed the Bank to provide an up-to-date listing and to convert the information into written form.
The Bank will not release or disclose the content of the Bond Register to any person other than to the City at its written request, except upon receipt of a subpoena or court order or as may otherwise be required by law. Upon receipt of a subpoena or court order the Bank will notify the City.
Section 4.06. Cancelled Bonds. All Bonds surrendered for payment, redemption, transfer, exchange, or replacement, if surrendered to the Bank, shall be promptly cancelled by it and, if surrendered to the City, shall be delivered to the Bank and, if not already cancelled, shall be promptly cancelled by the Bank. The City may at any time deliver to the Bank for cancellation any Bonds previously authenticated and delivered which the City may have acquired in any manner whatsoever, and all Bonds so delivered shall be promptly cancelled by the Bank. All cancelled Bonds shall be held by the Bank for its retention period then in effect and shall thereafter be destroyed and evidence of such destruction furnished to the City upon its written request.
ARTICLE FIVE
CUSTODIAN AND DISBURSING AGENT
Section 5.01. Receipt of Moneys. On the Closing Date, the Paying Agent, in its capacity as custodian, received the sum of $________ from the Underwriter, and deposited such amount into a special fund to be held and maintained by the Custodian and Disbursing Agent in the name of the City (the “Costs of Issuance Account”) for the payment of costs of issuance.
Section 5.02. Investment. The Custodian and Disbursing Agent will hold funds in the Costs of Issuance Account in cash, uninvested.
Section 5.03. Payment of Costs of Issuance. The Custodian and Disbursing Agent will pay costs of issuance of the Bonds as directed by the City from time to time and initially, in accordance with Exhibit B, which shall constitute written instructions from City.
Section 5.04. Transfer of Remaining Amounts. Any balances remaining in the Costs of Issuance Account (including any earnings) on August 10, 2023, will be transferred to City for deposit in the Debt Service Fund maintained by the City.
Section 5.05. Limited Liability. The liability of the Custodian and Disbursing Agent as custodian and disbursing agent is limited to the duties listed above. The Custodian and Disbursing Agent will not be liable for any action taken or neglected to be taken by it in good faith in any exercise of reasonable care and believed by it to be within the discretion of power conferred upon it by this Agreement.
ARTICLE SIX
THE BANK
Section 6.01. Duties of Bank. The Bank undertakes to perform the duties set forth herein. No implied duties or obligations shall be read into this Agreement against the Bank. The Bank hereby agrees to use the funds deposited with it for payment of the principal of and interest on the Bonds to pay the same as it shall become due and further agrees to establish and maintain such accounts and funds as may be required for the Bank to function as Paying Agent.
Section 6.02. Reliance on Documents, Etc.
(a) The Bank may conclusively rely, as to the truth of the statements and correctness of the opinions expressed therein, on certificates or opinions furnished to the Bank by the City. (b) The Bank shall not be liable for any error of judgment made in good faith. The Bank shall not be liable for other than its negligence or willful misconduct in connection with any act or omission hereunder. (c) No provision of this Agreement shall require the Bank to expend or risk its own funds or otherwise incur any financial liability for performance of any of its duties hereunder, or in the exercise of any of its rights or powers. (d) The Bank may rely, or be protected in acting or refraining from acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, note, security or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Bank need not examine the ownership of any Bond, but shall be protected in acting upon receipt of Bonds containing an endorsement or instruction of transfer or power of transfer which appears on its face to be signed by the Registered Owner or agent of the Registered Owner. (e) The Bank may consult with counsel, and the written advice or opinion of counsel shall be full authorization and protection with respect to any action taken, suffered or omitted by it hereunder in good faith and reliance thereon. (f) The Bank may exercise any of the powers hereunder and perform any duties hereunder either directly or by or through agents or attorneys and shall not be liable for the actions of such agent or attorney if appointed by it with reasonable care. (g) The Paying Agent shall not be responsible or liable for any failure or delay in the performance of its obligation under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; earthquakes; fire; flood; wars; terrorism; military disturbances; sabotage; epidemic; riots; interruptions; loss or malfunctions of utilities; computer (hardware or software) or communications services; accidents; labor disputes; acts of civil or military authority or governmental action; it being understood that Paying Agent shall use commercially reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as reasonably practicable under the circumstances. (h) The Paying Agent agrees to accept and act upon instructions or directions pursuant to this Agreement sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods; provided, however, that the City shall provide to the Paying Agent an incumbency certificate listing designated persons authorized to provide such instructions, which incumbency certificate shall be amended whenever a person is to be added or deleted from the listing. If the City elects to give the Paying Agent e-mail or facsimile instructions (or instructions by a similar electronic method) and the Paying Agent in its discretion elects to act upon such instructions, the Paying Agent’s understanding of such instructions shall be deemed controlling. The Paying Agent shall not be liable for any losses, costs or expenses arising directly or indirectly from the Paying Agent’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The City agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Paying Agent, including without limitation the risk of the Paying Agent acting on unauthorized instructions, and the risk or interception and misuse by third parties.
Section 6.03. Recitals of City. The recitals contained in the Bond Resolution and the Bonds shall be taken as the statements of the City, and the Bank assumes no responsibility for their correctness.
Section 6.04. May Own Bonds. The Bank, in its individual or any other capacity, may become the owner or pledgee of the Bonds with the same rights it would have if it were not the Paying Agent and Bond Registrar for the Bonds.
Section 6.05. Money Held by Bank. Money held by the Bank hereunder need not be segregated from other funds. The Bank shall have no duties with respect to investment of funds deposited with it and shall be under no obligation to pay interest on any money received by it hereunder.
Any money deposited with or otherwise held by the Bank for the payment of the principal, redemption premium (if any) or interest on any Bond and remaining unclaimed for two years after such deposit will be paid by the Bank to the City, and the City and the Bank agree that the Registered Owner of such Bond shall thereafter look only to the City for payment thereof, and that all liability of the Bank with respect to such moneys shall thereupon cease.
Section 6.06. Other Transactions. The Bank may engage in or be interested in any financial or other transaction with the City.
Section 6.07. Interpleader. The City and the Bank agree that the Bank may seek adjudication of any adverse claim, demand, or controversy over its person as well as funds on deposit, in a court of competent jurisdiction. The City and the Bank further agree that the Bank has the right to file an action in interpleader in any court of competent jurisdiction to determine the rights of any person claiming any interest herein.
Section 6.08. Indemnification. To the extent permitted by law, the City shall indemnify the Bank, its officers, directors, employees and agents (“Indemnified Parties”) for, and hold them harmless against any loss, cost, claim, liability or expense arising out of or in connection with the Bank’s acceptance or administration of the Bank’s duties hereunder or under the Bond Resolution (except any loss, liability or expense as may be adjudged by a court of competent jurisdiction to be attributable to the Bank’s negligence or willful misconduct), including the cost and expense (including its counsel fees) of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties under this Agreement. Such indemnity shall survive the termination or discharge of this Agreement or discharge of the Bonds.
ARTICLE SEVEN
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment. This Agreement may be amended only by an agreement in writing signed by both of the parties hereto.
Section 7.02. Assignment. This Agreement may not be assigned by either party without the prior written consent of the other party.
Section 7.03. Notices. Any request, demand, authorization, direction, notice, consent, waiver or other document provided or permitted hereby to be given or furnished to the City or the Bank shall be mailed or delivered to the City or the Bank, respectively, at the address shown herein, or such other address as may have been given by one party to the other by fifteen (15) days written notice.
Section 7.04. Effect of Headings. The Article and Section headings herein are for convenience of reference only and shall not affect the construction hereof.
Section 7.05. Successors and Assigns. All covenants and agreements herein by the City and the Bank shall bind their successors and assigns, whether so expressed or not.
Section 7.06. Severability. If any provision of this Agreement shall be determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
Section 7.07. Benefits of Agreement. Nothing herein, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, any benefit or any legal or equitable right, remedy or claim hereunder.
Section 7.08. Entire Agreement. Other than a separate agreement between the City and the Paying Agent relating to fees, this Agreement and the Bond Resolution constitute the entire agreement between the parties hereto relative to the Bank acting as Paying Agent, Transfer Agent and Bond Registrar for the Bonds and as Custodian and Disbursing Agent for the payment of costs of issuance relating to the Bonds.
Section 7.09. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall constitute one and the same Agreement.
Section 7.10. Term and Termination. This Agreement shall be effective from and after its date and until the Bank resigns or is removed in accordance with the Bond Resolution; provided, however, that no such termination shall be effective until a successor has been appointed and has accepted the duties of the Bank hereunder.
The Bank may resign at any time by giving written notice thereof to the City and the Registered Owners of the Bonds. If the Bank shall resign, be removed or become incapable of acting, the City shall promptly appoint a successor Paying Agent and Bond Registrar. If an instrument of acceptance by a successor Paying Agent and Bond Registrar shall not have been delivered to the Bank within thirty 30 days after the Bank gives notice of resignation, the Bank may petition any court of competent jurisdiction at the expense of the City for the appointment of a successor Paying Agent and Bond Registrar. In the event of resignation or removal of the Bank as Paying Agent and Bond Registrar, upon the written request of the City and upon payment of all amounts owing to the Bank hereunder the Bank shall deliver to the City or its designee all funds and unauthenticated Bonds, and a copy of the Bond Register. The provisions of Section 2.02 and Section 6.08 hereof shall survive and remain in full force and effect following the termination of this Agreement.
Section 7.11. Governing Law. This Agreement shall be construed in accordance with and shall be governed by the laws of the State of California.
Section 7.12. Documents to be Filed with Bank. At the time of the Bank’s appointment as Paying Agent and Bond Registrar, the City shall file with the Bank the following documents: (a) a certified copy of the Bond Resolution and a specimen Bond; (b) a copy of the opinion of bond counsel provided to the City in connection with the issuance of the Bonds; and (c) a City Request containing written instructions to the Bank with respect to the issuance and delivery of the Bonds, including the name of the Registered Owners and the denominations of the Bonds.
Section 7.13. Conflicts. Notwithstanding any provision herein to the contrary, in the event of any conflict between the terms of this Agreement and the Bond resolution, the terms of the Bond Resolution shall govern.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
CITY OF EMERYVILLE
By
Title
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Paying Agent By
Authorized Officer
EXHIBIT A
DEBT SERVICE SCHEDULE
Interest
Payment
Period
Date
Principal
Interest
Total
2/1/24
8/1/24
2/1/25
8/1/25
2/1/26
8/1/26
2/1/27
8/1/27
2/1/28
8/1/28
2/1/29
8/1/29
2/1/30
8/1/30
2/1/31
8/1/31
2/1/32
8/1/32
2/1/33
8/1/33
2/1/34
8/1/34
2/1/35
8/1/35
2/1/36
8/1/36
2/1/37
8/1/37
2/1/38
8/1/38
2/1/39
8/1/39
2/1/40
8/1/40
2/1/41
8/1/41
2/1/42
8/1/42
2/1/43
8/1/43
2/1/44
8/1/44
2/1/45
8/1/45
2/1/46
8/1/46
2/1/47
8/1/47
2/1/48
8/1/48
Totals
EXHIBIT B
COSTS OF ISSUANCE TO BE PAID
EXHIBIT B
FEE SCHEDULE
Exhibit B