REDDING JOINT POWERS FINANCING AUTHORITY
By: ____________________________________
Name: ______________________________
Title: _______________________________
CITY OF REDDING
By: ____________________________________
Name: ______________________________
Title: _______________________________
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EXHIBIT H
[FORM OF NOTICE OF REDUCTION]
NOTICE OF REDUCTION
[Date]
Redding Joint Powers Financing Authority
777 Cypress Avenue
Redding, CA 96001
Attention: Gregory Robinett, Director of Finance
Telephone: (530) 225-4088
E-mail: [email protected]
City of Redding
777 Cypress Avenue
Redding, CA 96001
Attention: Gregory Robinett, City Treasurer
Telephone: (530) 225-4088
E-mail: [email protected]
Ladies and Gentlemen:
We hereby notify you that pursuant to Section 2.13 of the Amended and Restated Revolving Credit Agreement dated as of April __, 2023, by and between the Redding Joint Powers Financing Authority (the “Authority”), the City of Redding, and U.S. Bank National Association (the “Lender”), the Available Commitment is reduced from [insert amount as of the date of Certificate] to [insert new amount], such reduction to be effective on ______________.
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Very truly yours,
U.S. BANK NATIONAL ASSOCIATION
By: ____________________________________
Name: ______________________________
Title: _______________________________
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EXHIBIT I
FORM OF LETTER OF CITY REPRESENTATIVE
This Compliance Certificate (this “Certificate”) is furnished to U.S. Bank National Association (the “Lender”) pursuant to that certain Amended and Restated Revolving Credit Agreement dated as of April __, 2023 (the “Agreement”), among City of Redding (the “City”), Redding Joint Powers Financing Authority (the “Authority”), and the Lender. Unless otherwise defined herein, the terms used in this Certificate shall have the meanings assigned thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected [title of City Representative] of the City;
2. I have reviewed the terms of the Agreement and I have made, or have caused to be made under my supervision, a detailed review of the transactions and conditions of the City during the accounting period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I have no knowledge of, the existence of any condition or the occurrence of any event which constitutes a Default or Event of Default during or at the end of the accounting period covered by the attached financial statements or as of the date of this Certificate, except as set forth below; and
4. The financial statements required by Section 5.02 of the Agreement and being furnished to you concurrently with this certificate fairly represent the consolidated financial condition of the City in accordance with GAAP (subject to year end adjustments) as of the dates and for the periods covered thereby.
Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the nature of the condition or event, the period during which it has existed and the action which the Obligated Group has taken, is taking, or proposes to take with respect to each such condition or event:
_________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ [Signature Page to Immediately Follow]
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The foregoing certifications and the financial statements delivered with this Certificate in support hereof, are made and delivered this _________ day of _______________, 20__.
CITY OF REDDING
By: ____________________________________
Name: ______________________________
Title: _______________________________
Packet Pg. 540 Attachment: Clean A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) CHAPMAN DRAFT DATED MARCHAPRIL 286, 2023
A&R Credit Agreement (Redding Electric-US Bank) (2023) 4892-9278-1655 v56.docx 4332458
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
dated as of April __, 2023
among
CITY OF REDDING,
REDDING JOINT POWERS FINANCING AUTHORITY,
and
U.S. BANK NATIONAL ASSOCIATION
Packet Pg. 541 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -iTABLE OF CONTENTS
SECTION HEADING PAGE
ARTICLE I DEFINITIONS .................................................................................................2 Section 1.01. Certain Defined Terms...........................................................................2 Section 1.02. Computation of Time Periods..............................................................17 Section 1.03. Construction.........................................................................................17 Section 1.04. Accounting Terms and Determinations ...............................................18 Section 1.05. Relation to Other Documents; Acknowledgment of Different Provisions of Other Loan Documents; Incorporation by Reference....18 Section 1.06. BSBY Notification...............................................................................18 ARTICLE II TERMS OF THE REVOLVING COMMITMENT .................................................19 Section 2.01. Revolving Commitment.......................................................................19 Section 2.02. Reserved...............................................................................................21 Section 2.03. Increased Costs ....................................................................................21 Section 2.04. Net of Taxes, Etc..................................................................................23 Section 2.05. Excess Interest .....................................................................................24 Section 2.06. Taxable Date ........................................................................................24 Section 2.07. Determination of Tax-Exempt Rates and Taxable Loan Rates ...........25 Section 2.08. Pledge of Authority Revenues and Obligations Absolute ...................26 Section 2.09. Fees ......................................................................................................27 Section 2.10. Extension of Maturity Date..................................................................29 Section 2.11. Payments Due on Non-Business Days.................................................29 Section 2.12. Breakage Expenses ..............................................................................29 Section 2.13. Reduction and Termination..................................................................30 Section 2.14. Illegality ...............................................................................................30 Section 2.15. Adequacy of Interest Rate....................................................................30 ARTICLE III CONDITIONS PRECEDENT ............................................................................32 Section 3.01. Documentary Requirements for Agreement to Extend Credit.............32 Section 3.02. Credit Requirements ............................................................................33 Section 3.03. Conditions Precedent to Each Advance Hereunder.............................33 Section 3.04. Conditions Precedent to the Initial Tax-Exempt Loan ........................33 ARTICLE IV REPRESENTATIONS AND WARRANTIES........................................................33 Section 4.01. Representations and Warranties of the Authority................................33 Section 4.02. Representations and Warranties of the City.........................................37 ARTICLE V COVENANTS OF THE AUTHORITY ................................................................40 Section 5.01. Covenants of the Authority..................................................................40 Section 5.02. Covenants of the City...........................................................................44 Packet Pg. 542 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -iiARTICLE VI EVENTS OF DEFAULT ..................................................................................50 Section 6.01. Events of Default .................................................................................50 Section 6.02. Consequences of an Event of Default..................................................52 Section 6.03. Remedies Cumulative; Solely for the Benefit of Lender.....................53 Section 6.04. Waivers or Omissions..........................................................................54 Section 6.05. Discontinuance of Proceedings............................................................54 ARTICLE VII INDEMNIFICATION.......................................................................................54 Section 7.01. Indemnification....................................................................................54 Section 7.02. Survival................................................................................................55 ARTICLE VIII MISCELLANEOUS ........................................................................................55 Section 8.01. Patriot Act Notice ................................................................................55 Section 8.02. Further Assurances...............................................................................55 Section 8.03. Amendments and Waivers ...................................................................55 Section 8.04. Notices .................................................................................................55 Section 8.05. No Third-Party Rights..........................................................................57 Section 8.06. Severability ..........................................................................................57 Section 8.07. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial ..........57 Section 8.08. No Advisory or Fiduciary Responsibility............................................58 Section 8.09. Entire Agreement.................................................................................59 Section 8.10. Duration ...............................................................................................59 Section 8.11. Counterparts.........................................................................................59 Section 8.12. Successors, Assigns and Participations................................................59 Section 8.13. No Right of Setoff...............................................................................60 Section 8.14. Electronic Signatures ...........................................................................60 Section 8.19. Existing Credit Agreement ..................................................................61
EXHIBITS
EXHIBIT A — Form of Tax-Exempt Note
EXHIBIT B — Form of Taxable Note
EXHIBIT C — Form of Term Loan Note
EXHIBIT D — Request for Advances
EXHIBIT E — Request for Extension
EXHIBIT F — Notice of Extension
EXHIBIT G — Notice of Reduction or Termination
EXHIBIT H — Notice of Reduction or Termination
EXHIBIT I — Letter of City Representative
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AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT dated as of April __, 2023 (as the same may be amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), among the CITY OF REDDING, a municipal corporation duly organized and existing in the State of California (the “City”), REDDING JOINT POWERS FINANCING AUTHORITY, a joint exercise of powers agency created and existing under the laws of the State of California (the “Authority”), and U.S. BANK NATIONAL ASSOCIATION (the “Lender”).
RECITALS
WHEREAS, the City, the Authority and the Lender previously entered into that certain Revolving Credit Agreement dated as of October 29, 2020 (as amended and otherwise modified prior to the date hereof, the “Existing Credit Agreement”), pursuant to which the Lender provided a line of credit to the Authority for the benefit of the City and its Electric System; WHEREAS, the City previously entered into the hereinafter defined Joint Powers Agreement establishing the Authority as a joint powers authority under the hereinafter defined Act, for the purpose, among others, of assisting in the City in its financing needs by financing public capital improvements;
WHEREAS, the City has determined to finance and refinance the acquisition, construction and installation from time to time of certain improvements, additions, and betterments to the City’s hereinafter defined Electric System (collectively, the “Projects”); WHEREAS, to assist the City in financing and refinancing the acquisition, construction and installation of the Projects, the Lender will continue to make advances at the request of the Authority from time to time pursuant to the terms of this Agreement and other applicable laws of the State of California;
WHEREAS, the Authority has agreed to sell the Projects to the City and the City has agreed to purchase the Projects from the Authority and pay the purchase price of Projects, as provided in the hereinafter defined Installment Sale Agreement;
WHEREAS, the City has agreed under the Installment Sale Agreement to make Installment Payments to the Authority to pay the purchase price of the Projects, which Installment Payments shall be sufficient in amount to pay the principal of and interest on Loans and all other amounts payable by the Authority under this Agreement;
WHEREAS, the Lender has agreed to continue to extend credit to the Authority for the benefit of the City and its Electric System, on a revolving basis, up to a maximum principal amount of $25,000,000 at any time outstanding, to finance the Projects; and WHEREAS, the City and the Authority have requested and the Lender has agreed to extend the Maturity Date and make certain other amendments to the Existing Credit Agreement and, for the sake of clarity and convenience, amend and restate the Existing Credit Agreement in its Packet Pg. 544 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -2-
entirety. This Agreement amends the Existing Credit Agreement in its entirety and from and after the Amendment and Restatement Date all references made to the Existing Credit Agreement in any Related Document or in any other instrument or document shall be deemed to refer to this Agreement. This Agreement shall become effective and supersede all provisions of the Existing Credit Agreement upon the execution and delivery of this Agreement by each of the parties hereto and the fulfillment of all conditions precedent hereof; NOW, THEREFORE, to induce the Lender to extend such credit as described above, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the City, the Authority, and the Lender hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following meanings:
“Act” means the Joint Exercise of Powers Act, California Government Code Section 6500, et seq.
“Advance” has the meaning assigned to such term in Section 2.01(a) hereof. For the avoidance of doubt, outstanding Taxable Loans and Tax-Exempt Loans each constitute an Advance.
“Advance Date” means the date on which the Lender honors a Request for Advance and makes the funds requested available to the Authority.
“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling or controlled by or under common control with such Person. Without limiting the foregoing, the definition of “Affiliate” of any Person shall include any subsidiary of such Person. “Agreement” has the meaning assigned to such term in the introductory paragraph of this Agreement.
“Alternate Rate” means, for any day, a fluctuating rate of interest per annum equal to the sum of (i) the Federal Funds Rate plus 2.00% and (ii) the Applicable Spread, in each case as of such day.
“Amendment and Restatement Date” means [April][May] __, 2023, assuming all of the conditions set forth in Section 3.01 are satisfied or waived by the Lender. “Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Authority or the City from time to time concerning or relating to bribery or Packet Pg. 545 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -3-
corruption.
“Anti-Terrorism Laws” has the meaning assigned to such term in Section 4.01(n) hereof. “Applicable Factor” means 85%.
“Applicable Law” means (i) all applicable common law and principles of equity, (ii) Environmental Laws, and (iii) all applicable provisions of all (A) constitutions, statutes, rules, regulations and orders of all governmental and non-governmental bodies, (B) Governmental Approvals, and (C) orders, decisions, judgments and decrees of all courts (whether at law or in equity) and arbitrators.
“Applicable Spread” means, with respect to Tax-Exempt Loans and Taxable Loans, as applicable, the Tax-Exempt Applicable Spread and the Taxable Applicable Spread, respectively, as set forth in Obligor Rating Pricing Adjustments. As of the Amendment and Restatement Date, the Tax-Exempt Applicable Spread is 65 basis points and the Taxable Applicable Spread is 75 basis points.
“Approving Opinion” means, with respect to any action or matter that may affect a Tax-Exempt Loan, an opinion delivered by Bond Counsel to the effect that such action (i) is permitted by this Agreement and the other Related Documents, and (ii) will not adversely affect the exclusion of interest on any Tax-Exempt Loan from the gross income of the Lender or any Participant for purposes of federal income taxation.
“Authority” has the meaning assigned to such term in the introductory paragraph of this Agreement.
“Authority Representative” means one or more of the following officers and employees of the Authority, acting in concert or individually, to wit: the Executive Director of the Authority, the Treasurer of the Authority or any officers or employee of the Authority appointed as such by resolution.
“Authority Revenues” means all Installment Payments made and/or payable by the City under the Installment Sale Agreement.
“Available Commitment” means the Commitment, adjusted from time to time as follows:
(a) downward by the principal amount of any Revolving Loan, and (b) upward by the principal amount of the repayment or prepayment of any Revolving Loan. “Base Rate” means, for any day, a fluctuating rate of interest per annum equal to the greatest of (i) the Prime Rate in effect at such time plus one percent (1.0%), (ii) the Federal Funds Rate in effect at such time plus two percent (2.0%), and (iii) seven and a half percent (7.5%). “Bond Counsel” means Orrick, Herrington & Sutcliffe LLP, or such other counsel of recognized national standing in the field of law relating to municipal bonds and the exemption from federal income taxation of interest thereon, appointed and paid by the Authority.
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“BSBY” means the Bloomberg Short-Term Bank Yield Index. “BSBY Index Rate Reset Date” means the first calendar day of each calendar month. “BSBY Rate” means, for any Interest Accrual Period, the annual rate equal to the greater of (a) zero percent (0%) and (b) BSBY quoted by the Lender from the applicable Reuters screen (or other commercially available source providing such quotations as may be selected by the Lender from time to time) for such Interest Accrual Period, which shall be the one-month BSBY in effect on the Computation Date immediately prior to the first day of such Interest Accrual Period, adjusted for any reserve requirement and any subsequent costs arising from a change in government regulation; provided that if BSBY is not published on such New York Banking Day due to a holiday or other circumstance that the Lender deems in its sole discretion to be temporary, the applicable BSBY shall be the BSBY last published prior to such New York Banking Day. The Lender does not warrant or accept any responsibility for the administration or submission of, or any other matter related to the BSBY Rate or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation whether any such alternative, successor or replacement rate will have the same value as, or be economically equivalent to, the BSBY Rate. The Lender’s internal records of the applicable interest rates shall be determinative in the absence of manifest error.
“Business Day” means any day except a Saturday, Sunday or any other day on which commercial banks in New York are authorized or required by law to close. “Change of Law” means the adoption or implementation, after the Original Closing Date, of, or any change, after the Original Closing Date, in, any Risk-Based Capital Guidelines or any other law, rule, treaty, regulation, guideline, order or request (whether or not having the force of law) of any Governmental Authority, or the application of the requirements thereof, or any change in the interpretation, application, implementation, enforcement or administration, after the Original Closing Date, of any of the foregoing by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd Frank Wall Street Reform and Consumer Protection Act and all requests, rules, rulings, guidelines, regulations or directives thereunder or issued in connection therewith and (ii) all requests, rules, rulings, guidelines, regulations or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States of America or foreign regulatory authorities shall in each case be deemed to be a “Change of Law,” regardless of the date enacted, adopted or issued.
“City” has the meaning assigned to such term in the introductory paragraph of this Agreement.
“City Representative” means, one or more of the following officers and employees of the City, acting in concert or individually, to wit: the City Manager of the City, the City Treasurer of the City or any officers or employee of the City appointed as such by resolution. “Code” means the Internal Revenue Code of 1986, as amended from time to time.
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“Commitment” means an amount not to exceed $25,000,000. “Commitment Termination Date” means the earliest of (i) the Maturity Date, as such date may be extended pursuant to Section 2.10 hereof, (ii) the date on which the Commitment and/or Available Commitment are otherwise terminated or reduced to zero in accordance with Section
2.13 hereof, and (iii) the date the Commitment terminates by its terms in accordance with Section
6.02 hereof.
“Computation Date” means the second New York Banking Day preceding each BSBY Index Rate Reset Date; provided, however, if no Revolving Loans are outstanding hereunder on the date of any Revolving Loan, the Computation Date shall mean the second New York Banking Day preceding the borrowing date of such Revolving Loan. “Contract” means any indenture, contract, agreement (other than this Agreement), other contractual restriction, lease, mortgage, instrument (other than the Revolving Notes) or guaranty to which the City or the Authority is a party related to Debt payable from or secured by Net Revenues, in each case including any amendment, restatement, supplement or other modification thereto.
“control,” “controlled by” or “under common control with,” when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting rights, the power to appoint officers, members, trustees or directors, by contract, statute or otherwise. “Debt” means, with respect to any Person, all items that would be classified as a liability in accordance with GAAP, including, without limitation or duplication, (i) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of business (including, without limitation, accounts payable to construction contractors and other professionals for services rendered), and which are not subject to appropriation, (iv) all obligations of such Person as lessee under capital leases, (v) all Debt of others secured by a Lien on any asset of such Person, so long as such Debt is assumed by such Person, (vi) all Debt of others guaranteed by such Person, (v) current liabilities in respect of unfunded benefits under employee benefit, retirement or pension plans, (vi) obligations issued for the account of any other Person, (vii) all unfunded amounts under a loan agreement, letter of credit, or other credit facility for which such Person would be liable, if such amounts were advanced under the credit facility, and (viii) obligations of such Person under Interest Rate Swap Agreements. “Default” means any event or condition which with notice, passage of time or any combination of the foregoing would constitute an Event of Default. “Default Rate” means the fluctuating per annum rate of interest at all times equal to the then applicable Base Rate plus 4.0%.
“Determination of Taxability” means and shall be deemed to have occurred on the first to Packet Pg. 548 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -6-
occur of the following:
(i) on the date when the Authority or the City files any statement, supplemental statement or other tax schedule, return or document which discloses that interest paid or payable on the Tax-Exempt Loan is includable, in whole or in part, in the gross income of the Lender or any Participant for federal income tax purposes; (ii) on the date when the Lender has received written notification from the Authority or the City, supported by a written opinion by an attorney or firm of attorneys of recognized standing on the subject of tax-exempt municipal finance, to the effect that interest paid or payable on the Tax-Exempt Loan is includable, in whole or in part, in the gross income of the Lender or any Participant for federal income tax purposes; (iii) on the date when the Authority or the City shall be advised in writing by the Commissioner or any District Director of the Internal Revenue Service (or any other government official or agent exercising the same or a substantially similar function from time to time) that based upon filings of the Authority or the City (or a statutory notice of deficiency, or a document of substantially similar import), or upon any review or audit of the Authority, or upon any other ground whatsoever, interest paid or payable on the Tax-Exempt Loan is includable, in whole or in part, in the gross income of the Lender or any Participant for federal income tax purposes; or
(iv) on the date when the Authority or the City shall receive notice from the Lender that the Internal Revenue Service (or any other government official or agency exercising the same or a substantially similar function from time to time) has assessed as includable in the gross income of the Lender or any Participant the interest on any Tax-Exempt Loan.
“Electric System” means the electric utility system of the City, comprising all electric generation, transmission and distribution facilities and all general plant facilities related thereto now owned by the City and all other properties, structures or works for the generation, transmission and distribution of electricity hereafter acquired by the City and determined by the City to be a part of the Electric System, including all contractual rights for electricity and capacity; together with all additions, betterments, extensions or improvements to such facilities, properties, structures or works or any part thereof hereafter acquired. “Environmental Laws” means any past, present or future federal, state, or local statutory or common law or any regulation, ordinance, code, plan, regulatory or court order, decree, permit, grant, restriction, policy or agreement issued, entered, promulgated or approved thereunder, relating to Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. § 9601 et seq. (“CERCLA”); the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901, et seq. (“RCRA”); the Toxic Substances Control Act, 15 U.S.C. § 2601, et seq.; the Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq. (“FWPCA”); the Hazardous Materials Transportation Act, 49 U.S.C. § 5101, et seq. (“HMTA”); the Safe Drinking Water Act, 42 U.S.C. § 300f, et seq.; the Occupational Safety and Health Act, 29 Packet Pg. 549 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -7-
U.S.C. § 651, et seq.; the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. § 11001 et seq. (“EPCRA”); the National Environmental Policy Act, 42 U.S.C. § 4321, et seq.; the Atomic Energy Act, 42 U.S.C. § 2014, et seq.; the Endangered Species Act, 16 U.S.C. § 1531, et seq.; the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136, et seq. (“FIFRA”); the Clean Air Act, 42 U.S.C. § 7401, et seq.; the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq.; the Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. § 651, et seq.; and their state analogs, state counterparts, and other state laws, regulations, and statutes relating to protection of human health, safety or the environment, including those relating to (i) releases, discharges, emissions or disposals to air, water, land or ground water; (ii) the use, handling or disposal of polychlorinated biphenyls (PCB’s), asbestos, radon, lead paint or urea formaldehyde; (iii) the treatment, storage, transportation, refinement, disposal or management of Hazardous Substances (including virgin or used petroleum, crude oil, heating oil or any fraction thereof) and any other solid, liquid or gaseous substance, exposure to which is prohibited, limited or regulated by any environmental law, or may or could pose a hazard to the health and safety of the occupants of the Authority’s Property; (iv) the exposure of persons to toxic, hazardous, or other controlled, prohibited or regulated substances; (v) the transportation, storage, disposal, management or release of gaseous or liquid substances; (vi) underground or aboveground storage tanks; (vii) any explosive or radioactive material; (viii) freshwater wetlands; (ix) radon gas; (x) endangered species; and (xi) Stachybotrys chartarum and other molds, and any rules, regulations, guidance, orders, injunctions, judgments, declarations, notices or demands promulgated or issued thereunder.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated, and rulings issued thereunder. Section references to ERISA herein correspond to sections of ERISA as in effect at the Original Closing Date and any corresponding future sections of ERISA amendatory thereof, supplemental thereto or substituted therefor.
“Event of Default” has the meaning assigned to such term in Section 6.01 hereof. “Event of Insolvency” means, with respect to the City or the Authority, the occurrence of one or more of the following events:
(a) the issuance, under the Laws of any state or under the Laws of the United States of America, of an order of rehabilitation, liquidation or dissolution of such Person; (b) the commencement by or against such Person of a case or other proceeding seeking liquidation, reorganization or other relief with respect to such Person or its Debt under any bankruptcy, insolvency or other similar state or federal law now or hereafter in effect which case or proceeding is not dismissed within 60 days, including, without limitation, the appointment of a trustee, receiver, liquidator, custodian or other similar official for such Person or any substantial part of its property or there shall be appointed or designated with respect to it, an entity such as an organization, board, commission, authority, agency or body to monitor, review, oversee, recommend or declare a financial emergency or similar state of financial distress with respect to it or there shall be declared or introduced or proposed for consideration by it or by any legislative or regulatory body Packet Pg. 550 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -8-
with competent jurisdiction over it, the existence of a state of financial emergency or similar state of financial distress in respect of it;
(c) the making of an assignment for the benefit of creditors by such Person; (d) the failure of such Person to generally pay its Debt when due; (e) a debt moratorium, debt adjustment, debt restructuring or comparable restriction with respect to the payment of any Debt of such Person is declared or imposed by such Person or by any Governmental Authority having jurisdiction over such Person; (f) such Person shall admit in writing its inability to pay its Debt when due; or (g) the initiation of any actions to authorize any of the foregoing by or on behalf of such Person.
“Excess Interest Amount” has the meaning assigned to such term in Section 2.05 hereof. “Excluded Taxes” means, with respect to a Lender or any Participant, (a) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which the Lender or any Participant is organized or in which its principal office is located, and (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the Authority or the City is located. “Executive Order” has the meaning assigned to such term in Section 4.01(n) hereof. “Existing Credit Agreement” has the meaning set forth in the recitals hereof. 1[“Existing Loan” means the Revolving Loans (solely in this instance, as defined in the Existing Credit Agreement) initially made by the Lender under the Existing Credit Agreement and outstanding on the Amendment and Restatement Date in an aggregate principal amount equal to $________.]
“Expenses” means all reasonable fees, charges, costs and expenses of any nature whatsoever, whether in the form of a direct, reimbursement or indemnity payment obligation, incurred at any time and from time to time (whether before or after an Event of Default) by the Lender in funding Advances, in administering or modifying the Loan Documents, in negotiating or entering into any “workout” of the Transactions, or in exercising or enforcing any rights, powers and remedies provided in any of the Loan Documents, including reasonable attorneys’ fees, court costs, and receiver’s fees.
1 Note: This concept is bracketed throughout. If there are no outstanding loans on the Amendment and Restatement Date, the bracketed terms can be deleted.
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“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to the Lender on such day on such transactions as reasonably determined by the Lender.
Notwithstanding anything herein to the contrary, if the Federal Funds Rate as determined as provided above would be less than zero percent (0.0%), then the Federal Funds Rate shall be deemed to be zero percent (0.0%).
“Fiscal Year” means the period of twelve (12) consecutive calendar months for which financial statements of the respective entity have been examined by its independent certified public accountants; currently for the City, a year ending on June 30. “Fitch” means Fitch Ratings, Inc., and any successor rating agency. “GAAP” means generally accepted accounting principles in effect from time to time in the United States and applicable to entities such as the City. “Governmental Approvals” means an authorization, consent, approval, license or exemption of, registration or filing with, or report to, any Governmental Authority. “Governmental Authority” means the government of the United States of America or any other nation or any political subdivision thereof or any governmental or quasi-governmental entity, including any court, department, commission, board, bureau, agency, administration, central bank, service, district or other instrumentality of any governmental entity or other entity exercising executive, legislative, judicial, taxing, regulatory, fiscal, monetary or administrative powers or functions of or pertaining to government, or any arbitrator, mediator or other Person with authority to bind a party at law.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, materials, contaminants, chemicals, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law. “Hazardous Substance” means any chemical, material or substance (i) listed, defined or regulated as or included in the definition of “hazardous substances,” “hazardous wastes,” “hazardous materials,” “extremely hazardous waste,” “restricted hazardous waste,” “infectious waste,” or “toxic substances” or words of similar impact under any applicable Environmental Laws, including, but not limited to, FWPCA, RCRA, CERCLA, and HMTA or otherwise classified as hazardous or toxic, in or pursuant to any Environmental Law; (ii) the release of or the exposure to which is prohibited, limited or regulated by any Environmental Law; or (iii) that poses Packet Pg. 552 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -10-
a hazard to health, safety or the environment. “Hazardous Substance” does not include (i) a substance regularly used in the cleaning and maintenance of the Authority’s Property and that is a material referenced at 40 C.F.R. § 261.4(b)(1), the “household waste” exclusion under RCRA, but only if the quantity and manner of its use are customary and prudent and do not violate Applicable Law, or (ii) automotive motor oil in immaterial quantities, if leaked from vehicles in the ordinary course of the operation of the Electric System and cleaned up in accordance with reasonable property management procedures and in a manner that does not violate Applicable Law. “Indemnified Taxes” means Taxes other than Excluded Taxes. “Installment Payment” has the meaning assigned to such term in the Installment Sale Agreement.
“Installment Sale Agreement” means that certain Subordinate Installment Sale Agreement dated as of October 1, 2020, between the City and the Authority, as the same may be amended, restated, or otherwise modified from time to time in accordance with the terms thereof and hereof. [“Initial Revolving Loan” has the meaning specified in Section 2.01(a)(ii) hereof.] “Interest Accrual Period” means, subject to Section 2.07(d) hereof, initially, the period from and including the date of an Advance to but not including the first calendar day of the immediately succeeding month and, thereafter, the period from and including the first day of each calendar month to and including the last day of such calendar month; provided any Interest Accrual Period that would otherwise extend past the Commitment Termination Date shall end on the Commitment Termination Date.
“Interest Payment Date” has the meaning assigned to such term in Section 2.01(f) hereof. “Interest Rate Swap Agreement” means an interest rate swap, cap or collar agreement or similar arrangement between any Person and a financial institution providing for the transfer or mitigation of interest rate risks either generally or under specific contingencies. “Joint Powers Agreement” means the Joint Exercise of Powers Agreement dated December 6, 1988, between the City and the Housing Authority of the City of Redding, as supplemented by the First Supplemental Agreement to Joint Exercise of Powers Agreement dated December 20, 1988, and as amended by an Amendment to Joint Powers Agreement, dated August 27, 1997, and as the same may further amended, restated, or otherwise supplemented with the terms hereof and thereof.
“Law” means any treaty or any federal, regional, state and local law, statute, rule, ordinance, regulation, code, license, authorization, decision, injunction, interpretation, order or decree of any court or other Governmental Authority.
“Lender” has the meaning assigned to such term in the introductory paragraph of this Agreement.
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“Liabilities” has the meaning assigned to such term in Section 7.01 hereof. “Lien” means any lien, mortgage, security interest, pledge or other charge or encumbrance of any kind, or any other type of preferential arrangement, including without limitation the lien or retained security title of a conditional vendor and any easement, right of way or other encumbrance on title to personal, real or mixed property.
“Loan Documents” means this Agreement, the Loans, the Installment Sale Agreement, the Taxable Note, the Tax-Exempt Note, the Term Loan Note and any other agreements executed by the City or the Authority pursuant to the terms of this Agreement, in each case as amended from time to time.
“Loans” means Revolving Loans, Advances, and/or Term Loans. “Maintenance and Operation Costs” means the costs paid or incurred by the City for maintaining and operating the Electric System including, but not limited to, (a) all costs of electric energy and power generated or purchased by the City for resale, costs of transmission, fuel supply and water supply in connection with the foregoing, (b) all expenses of management and repair and other expenses necessary to maintain and preserve the Electric System in good repair and working order, (c) all administrative costs of the City that are charged directly or apportioned to the operation of the Electric System, such as salaries and wages of employees, overhead, taxes (if any) and insurance premiums, (d) all other reasonable and necessary costs of the City or charges required to be paid by it to comply with the terms hereof or of any resolution authorizing the execution of any Senior Lien Obligations, such as compensation, reimbursement and indemnification of the trustee, remarketing agent or surety costs for the Senior Lien Obligations, letter of credit fees relating to Senior Lien Obligations, fees and expenses of independent certified public accountants, (e) all amounts required to be paid by the City under contracts with a joint powers agency for the purchase of capacity, energy, transmission capability or any other commodity or service in connection with the foregoing, which contract requires payments to be made by the City thereunder to be treated as maintenance and operation costs of the Electric System, (f) any other cost or expense which, in accordance with GAAP, is to be treated as a cost of operating or maintaining the Electric System; but excluding in all cases depreciation, replacement and obsolescence charges or reserves therefor and amortization of intangibles. “Margin Stock” has the meaning assigned to such term in Regulation U promulgated by the Board of Directors of the Federal Reserve System, as now and hereafter from time to time in effect.
“Material Adverse Change” means the occurrence of any event or change, which separately or in the aggregate with the occurrence of other events, results or could reasonably be expected to result in a Material Adverse Effect.
“Material Adverse Effect” means any material adverse change in or effect on (i) the business, operations, assets, liabilities, condition (financial or otherwise) or results of operations of the Electric System, (ii) the ability of the City or the Authority, as the case may be, to consummate the transactions contemplated by this Agreement or any of the Related Documents to which the Packet Pg. 554 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -12-
City or the Authority is a party, (iii) the ability of the City or the Authority to perform any of its obligations under any of the Related Documents to which the City or the Authority is or will be a party or (iv) the legality, validity, binding effect or enforceability against the City or the Authority, as the case may be, of any Related Document to which the City or the Authority is a party or the rights, security, interests or remedies of the Lender hereunder or under any of the other Related Documents.
“Material Litigation” has the meaning assigned to such term in Section 4.0l(e) and 4.02(e) hereof.
“Maturity Date” means [October][November] __, 2025, or such later date to which the Maturity Date may be extended by mutual agreement in writing of the Lender, the City, and the Authority following written notification to the Lender from the City and the Authority of its desire to extend the Maturity Date in accordance with .
“Maximum Federal Corporate Tax Rate” means, for any day, the maximum rate of income taxation imposed on corporations pursuant to Section 11(b) of the Code, as in effect as of such day (or, if as a result of a change in the Code, the rate of income taxation imposed on corporations generally shall not be applicable to the Lender, the maximum statutory rate of federal income taxation which could apply to the Lender as of such day). As of the Original Closing Date and the Amendment and Restatement Date, the Maximum Federal Corporate Tax Rate is 21%. “Maximum Rate” means the maximum net effective interest rate permitted by State law to be paid on obligations issued or incurred by the Authority in the exercise of its borrowing powers. “Moody’s” means Moody’s Investors Service, Inc. and any successor rating agency. “Net Revenues” means, for any period of time in question, the Revenues during such period less the Maintenance and Operation Costs during such period. “New York Banking Day” means any day (other than a Saturday or Sunday) on which commercial banks are open for business in New York, New York. “Obligations” means all amounts payable by the Authority, including, without limitation, the Revolving Notes and the Term Loan Note and the principal of and interest on Loans, Advances, and Term Loans, and all other obligations to be performed by the Authority, pursuant to this Agreement and the other Related Documents (including any amounts to reimburse the Lender for any expenditures by it under any of such documents). “Obligor Rating” means the long-term unenhanced ratings (without regard to any bond insurance policy or credit enhancement) assigned by each Rating Agency to Senior Lien Obligations (in each case to the extent such Rating Agency is then providing such rating). “Obligor Rating Pricing Adjustments” means the table setting forth the Undrawn Commitment Fee, the Taxable Applicable Spread, and the Tax-Exempt Applicable Spread determined in relation to the applicable Obligor Rating, as set forth below:
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LEVEL MOODY’S S&P FITCH
UNDRAWN
COMMITM
ENT FEE
(BASIS
POINTS)
TAXABLE
APPLICABLE
SPREAD
(BASIS
POINTS)
TAX-EXEMPT
APPLICABLE
SPREAD
(BASIS POINTS)
1 Aa3 or above AA- or above AA- or above 30 75 65
2 A1 A+ A+ 45 95 80
3 A2 A A 70 125 105
4 A3 A- A- 105 165 140
5 Baa1 BBB+ BBB+ 160 230 195
The applicable Undrawn Commitment Fee, Taxable Applicable Spread and Tax-Exempt Applicable Spread shall be such value corresponding with the lowest Obligor Rating (for the avoidance of doubt, Level 5 is the Level with the lowest ratings, and Level 1 is the level with the highest ratings for purposes of the above pricing grid). Any change in the Undrawn Commitment Fee, Taxable Applicable Spread and Tax-Exempt Applicable Spread resulting from a change in the Obligor Rating shall be and become effective as of and on the date of the announcement of the change in the Obligor Rating. In the event of a split rating (i.e., one of the foregoing Rating Agencies’ Obligor Rating is at a different Level than the Obligor Rating of either of the other Rating Agencies), the Undrawn Commitment Fee, Taxable Applicable Spread and Tax-Exempt Spread shall be based upon the level in which the lowest Obligor Rating appears. In the event that no Obligor Ratings are available, as a result of any breach of Section 5.02(t) hereof (which breach has not been cured but has not yet become an Event of Default), the Undrawn Commitment Fee, Taxable Applicable Spread and Tax-Exempt Spread shall be based upon the rating that was last in effect prior to such ratings becoming unavailable. References to the Obligor Rating above are references to rating categories as presently determined by the Rating Agencies and in the event of adoption of any new or changed rating system by any such Rating Agency, including, without limitation, any recalibration of the Obligor Rating in connection with the adoption of a “global” rating scale, each Obligor Rating from the Rating Agency in question referred to above shall be deemed to refer to the rating category under the new rating system which most closely approximates the applicable rating category as currently in effect. In the event that any Obligor Rating is reduced below Level 5 or is suspended or withdrawn for any credit-related reason, or there shall occur any other Event of Default under this Agreement, the Undrawn Commitment Fee shall automatically increase to a rate equal to the sum of (i) the rate which would apply if any Obligor Rating is at Level 5 plus (ii) three hundred basis points (3.00%) per annum. The Authority represents that as of the Amendment and Restatement Date, the Undrawn Commitment Fee, Taxable Applicable Spread and Tax-Exempt Applicable Spread are those rates that are specified above for Level 1 of the related column. For purposes of clarity, on the Amendment and Restatement Date, Fitch was the only Rating Agency then providing an Obligor Rating.
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“Original Closing Date” means October 29, 2020.
“Other Taxes” means all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or under any other Related Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Related Document. “Parity Obligations” means all Debt payable from and secured by Net Revenues on a parity basis with the Revolving Notes.
“Participant” means a banking institution that has been granted a participation in the Revolving Notes pursuant to Section 8.12(b) hereof.
“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Title III of Pub. L. 107-56 (signed into law October 26, 2001).
“Payment Agreement” means a written agreement for the purpose of managing or reducing the City’s exposure to fluctuations in interest rates or for any other interest rate, investment, cash flow, asset or liability managing purposes, entered into either on a current or forward basis by the City and a Qualified Counterparty in connection with, or incidental to, the entering into of any Parity Obligation, that provides for an exchange of payments based on interest rates, ceilings or floors on such payments, options on such payments, or any combination thereof or any similar device.
“Payment Agreement Receipts” means the amounts required to be paid periodically by the Qualified Counterparty to the City pursuant to a Payment Agreement. “Person” means an individual, limited liability company, a corporation, a partnership, an association, a trust or any other entity or organization, including any Governmental Authority. “Prime Rate” means on any day, the rate of interest per annum then most recently established by the Lender as its “prime rate.” The “prime rate” is a rate set by the Lender based upon various factors including the Lender’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by the Lender shall take effect at the opening of business on the day specified in the public announcement of such change.
If the Lender ceases to establish or publish a prime rate from which the Prime Rate is then determined, the applicable variable rate from which the Prime Rate is determined thereafter shall be instead the prime rate reported in the The Wall Street Journal (or the average prime rate if a high and low prime rate are therein reported), and the Prime Rate shall change without notice with each change in such prime rate as of the date such change is reported. Notwithstanding anything herein to the contrary, if the Prime Rate determined as provided above would be less than zero percent (0.0%), then the Prime Rate shall be deemed to be zero percent (0.0%). “Property” means, with respect to any Person, all real, mixed and personal property of Packet Pg. 557 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -15-
such Person, tangible and intangible, wherever located, in which such Person shall have any right, title or interest from time to time.
“Qualified Counterparty” means a party (other than the City) who is the other party to a Payment Agreement and (1) (a) whose senior debt obligations are rated in one of the three (3) highest rating categories of each of the Rating Agencies then rating any Senior Lien Obligations (without regard to any gradations within a rating category), or (b) whose obligations under the Payment Agreement are guaranteed for the entire term of the Payment Agreement by a bond insurer or other institution which has been or whose debt service obligations have been assigned a credit rating in one of the three highest rating categories of each of the Rating Agencies then rating any Senior Lien Obligations (without regard to any gradations within a rating category), and (2) who is otherwise qualified to act as the other party to a Payment Agreement with the City under any applicable laws.
“Rating Agency” means Moody’s, S&P and Fitch, or any successors thereto or additional rating agencies.
“Related Documents” means the Loan Documents, Senior Lien Documents, and the Joint Powers Agreement.
“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto. “Request for Advance” means any request for an Advance made by the Authority to the Lender, in the form of Exhibit D hereto, executed and delivered on behalf of the Authority by the manual or facsimile signatures of any authorized representative of the Authority. “Revenues” means all gross income and revenue received or receivable by the City from the ownership or operation of the Electric System, including all rates and charges received by the City for the Electric Service and the other services and facilities of the Electric System, all proceeds of insurance covering business interruption loss relating to the Electric System and all other income and revenue howsoever derived by the City from the ownership or operation of the Electric System or otherwise arising from the Electric System, including all Payment Agreement Receipts, and all income from the deposit or investment of any money in the Electric Revenue Fund, but excluding (i) proceeds of taxes and (ii) refundable deposits made to establish credit and advances or contributions in aid of construction and line extension fees. “Revolving Loan” has the meaning assigned to such term in Section 2.01(a) hereof. “Revolving Note” means a Taxable Note or a Tax-Exempt Note. “Risk-Based Capital Guidelines” means (i) the risk-based capital guidelines in effect in the United States of America, including transition rules, and (ii) the corresponding capital regulations promulgated by regulatory authorities outside the United States of America, including transition rules, and any amendments to such regulations.
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“S&P” means S&P Global Ratings, a division of S&P Global Inc, and any successor rating agency.
“Sanctioned Country” means, at any time, any country or territory which is itself the subject or target of any comprehensive Sanctions.
“Sanctioned Person” means, at any time, (a) any Person or group listed in any Sanctions-related list of designated Persons maintained by OFAC or the U.S. Department of State, the United Nations Security Council, the European Union or any EU member state, (b) any Person or group operating, organized or resident in a Sanctioned Country, (c) any agency, political subdivision or instrumentality of the government of a Sanctioned Country, or (d) any Person 50% or more owned, directly or indirectly, by any of the above. “Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by OFAC or the U.S. Department of State or (b) the United Nations Security Council, the European Union or His Majesty’s Treasury of the United Kingdom. “Senior Lien Documents” means the 2008 Installment Sale Agreement, dated as of April 1, 2008, between the City and the Authority, the 2015 Installment Sale Agreement, dated as of December 1, 2015, between the City and the Authority, the Indenture, dated as of March 1, 2017, between the City and U.S. Bank National Association, as Trustee, the Indenture, dated as of March 1, 2018, between the City and U.S. Bank National Association and any other agreements or indentures providing for the payment of installment payments or principal and interest on bonds payable from Net Revenues on a parity with the Senior Lien Obligations. “Senior Lien Obligations” means all Debt of the City payable from and secured by a pledge of and first priority Lien on Net Revenues. For the avoidance of doubt, the Debt evidenced by the obligation to make installment payments and to pay the principal of and interest on bonds required to be paid pursuant the Senior Lien Documents constitute Senior Lien Obligations. “State” means the State of California.
“Taxable Date” means the date on which interest on any Tax-Exempt Loan is first includable in gross income of any holder thereof (including the Lender) as such a date is established pursuant to a Determination of Taxability.
“Taxable Gross-Up Rate” means, for each day during a Taxable Period, a rate per annum equal to the product of (i) the interest rate on the Tax-Exempt Note for such day and (ii) the applicable Taxable Rate Factor.
“Taxable Loan” means any Revolving Loan bearing interest at the Taxable Loan Rate. “Taxable Loan Rate” (i) for the period commencing on the Original Closing Date to but not including the Amendment and Restatement Date, has the meaning set forth in the Existing Credit Agreement as in effect from time to time prior to the Amendment and Restatement Date and Packet Pg. 559 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -17-
(ii) from and including the Amendment and Restatement Date and thereafter, means a per annum rate of interest established on each Computation Date, equal to the sum of (a) the Taxable Applicable Spread as set forth in Obligor Rating Pricing Adjustments plus (b) the BSBY Rate. “Taxable Note” has the meaning assigned to such term in Section 2.01(d)(ii) hereof. “Taxable Period” has the meaning assigned to such term in Section 2.06 hereof. “Taxable Rate Factor” means, for each day that the Taxable Gross-Up Rate is determined, the quotient of (i) one divided by (ii) one minus the Maximum Federal Corporate Tax Rate in effect as of such day, rounded upward to the second decimal place. “Taxes” or “Tax” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, fines, additions to tax or penalties applicable thereto.
“Tax-Exempt Loan” means any Revolving Loan bearing interest at the Tax-Exempt Rate. “Tax-Exempt Note” has the meaning assigned to such term in Section 2.01(d)(i) hereof. “Tax-Exempt Rate” (i) for the period commencing on the Original Closing Date to but not including the Amendment and Restatement Date, has the meaning set forth in the Existing Credit Agreement as in effect from time to time prior to the Amendment and Restatement Date and (ii) from and including the Amendment and Restatement Date and thereafter, means a per annum rate of interest, established on each Computation Date equal to the sum of (a) the product of (1) the BSBY Rate multiplied by (2) the Applicable Factor, plus (b) the Tax-Exempt Applicable Spread as set forth in Obligor Rating Pricing Adjustments.
“Termination Fee” means an amount equal to any unpaid portion of the Undrawn Commitment Fee that would have been due from the Amendment and Restatement Date to and including the first anniversary of the Amendment and Restatement Date ([April][May] __, 2024) absent any termination or reduction of the Commitment.
“Term Loan” means the term loan advanced to the Authority under the terms and conditions of Section 2.01(i) hereof.
“Term Loan Note” has the meaning assigned to such term in Section 2.01(i) hereof. “Term Loan Rate” means the fluctuating per annum rate of interest calculated as follows:
(i) for any day commencing on the Maturity Date to and including the ninetieth (90th) day next succeeding the Maturity Date, equal to the Base Rate then in effect, (ii) for any day commencing on the ninety-first (91st) day next succeeding the Maturity Date to and including the one hundred eightieth (180th) day next succeeding the Maturity Date, equal to the Base Rate then in effect plus one percent (1.0%), and (iii) for any day commencing on the one hundred eighty-first day next succeeding the Maturity Date and thereafter, equal to the Base Rate then in effect plus two percent Packet Pg. 560 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -18-
(2.0%).
“Transactions” means the extension of credit, the execution and delivery by the Authority and the City of the Loan Documents, the performance by the Authority of the Obligations hereunder and under the other Loan Documents.
“Undrawn Commitment Fee” shall mean the Undrawn Commitment Fee as set forth in Obligor Rating Pricing Adjustment. As of the Amendment and Restatement Date, the Undrawn Commitment Fee is equal to 30 basis points.
Section 1.02. Computation of Time Periods. In this Agreement, in the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding.” Section 1.03. Construction. Unless the context of this Agreement otherwise clearly requires, references to the plural include the singular, to the singular include the plural and to the part include the whole. The word “including” shall be deemed to mean “including but not limited to,” and “or” has the inclusive meaning represented by the phrase “and/or.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” The words “hereof,” “herein,” “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. The Section headings contained in this Agreement and the table of contents preceding this Agreement are for reference purposes only and shall not control or affect the construction of this Agreement or the interpretation thereof in any respect. Section, subsection and exhibit references are to this Agreement unless otherwise specified. Any exhibit, schedule or annex attached hereto is incorporated by reference herein and is a constituent part of this Agreement.
Section 1.04. Accounting Terms and Determinations. Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared, in accordance with GAAP. In the event of changes to GAAP which become effective after the Original Closing Date, the City, Authority, and the Lender agree to negotiate in good faith appropriate revisions of this Agreement so as to perpetuate the meaning and effect of such provisions as originally negotiated and agreed upon.
Section 1.05. Relation to Other Documents; Acknowledgment of Different Provisions of Other Related Documents; Incorporation by Reference. (a) Nothing in this Agreement shall be deemed to amend, or relieve the City or the Authority of its obligations under, any other Related Document to which it is a party. Conversely, to the extent that the provisions of any Related Document allow the City or the Authority to take or not take certain actions, the City and the Authority nevertheless shall be fully bound by the provisions of this Agreement. (b) All references to other documents, including, without limitation, the Related Documents, shall be deemed to include all amendments, restatements, modifications and supplements thereto to the extent such amendment, restatement, modification or supplement is made in accordance with the provisions of such document and this Agreement, as applicable.
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Section 1.06. BSBY Notification. The interest rate on Revolving Loans is determined by reference to BSBY. Section 2.15 hereof provides a mechanism for (a) determining an alternative rate of interest if BSBY is no longer available or in the other circumstances set forth in Section
2.15 hereof, and (b) modifying this Agreement to give effect to such alternative rate of interest.
The Lender does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to BSBY or other rates in the definition of Tax-Exempt Rate or Taxable Loan Rate or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation, whether any such alternative, successor or replacement reference rate, as it may or may not be adjusted pursuant to Section 2.15 hereof, will have the same value as, or be economically equivalent to, BSBY.
ARTICLE II
TERMS OF THE REVOLVING COMMITMENT
Section 2.01. Revolving Commitment.
(a) Revolving Commitment. [(i)] Subject to the terms and conditions of this Agreement, the Lender hereby agrees to make advances (the “Advances”) to the Authority from time to time up to and including the Commitment Termination Date in an aggregate principal amount not to exceed at any time the Commitment (the “Revolving Loan”). The sum of the aggregate principal amount of Tax-Exempt Loans and Taxable Loans at any time outstanding shall not exceed the Commitment in effect at such time. As provided in Section 2.01(d) hereof, the Authority may elect that any such Revolving Loan be either a Tax-Exempt Loan or a Taxable Loan. Revolving Loans may be repaid and the principal amount thereof reborrowed before the Commitment Termination Date, subject to the terms and conditions hereof. [(ii) Existing Loan. Notwithstanding anything herein to the contrary, the Existing Loan shall remain outstanding under this Agreement and shall be deemed to be a [Tax-Exempt][Taxable] Loan hereunder (the “Initial Revolving Loan”). The Initial Revolving Loan shall be deemed made to the Authority pursuant to the terms of this Section 2.01 hereof; provided, however, that no amounts shall be paid by the Lender to the City or the Authority in connection with the Initial Revolving Loan.] (b) Making of Advances; Use of Proceeds. Subject to the terms and conditions of this Agreement, the Lender agrees to make Advances from time to time on any Business Day, commencing on the Original Closing Date and ending on the Commitment Termination Date, in amounts not to exceed at any time outstanding the Commitment. Each Advance requested shall be in a minimum principal amount of $50,000 and the Authority shall not request more than two (2) Advances per calendar month. The proceeds of the Advances shall be used for valid corporate purposes of the Authority; provided that in no event shall any of the proceeds of a Tax-Exempt Loan be used to pay or prepay a Taxable Loan, unless the Authority receives an Approving Opinion of Bond Counsel, which opinion shall be addressed to the Lender. The aggregate amount of all Advances made on any Advance Date shall not exceed the Available Commitment as of such date.
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(c) Method of Borrowing.
(i) Taxable Loans. Upon receipt of a Request for Advance by the Lender not later than 11:30 a.m. New York time on the Business Day which is two (2) Business Days immediately prior to the day of the proposed borrowing, the Lender, subject to the terms and conditions of this Agreement, shall be required to make an Advance by 12:30 p.m. New York time on such day of the proposed borrowing for the account of the Authority in an amount equal to the amount of the requested borrowing. Each Request for Advance in respect of a Taxable Loan shall be signed by an Authority Representative and shall specify that the requested Advance shall be a Taxable Loan.
Each Advance shall be made by the Lender by wire transfer of immediately available funds to the Authority in accordance with written instructions provided by the Authority. (ii) Tax-Exempt Loans. Upon receipt of a Request for Advance by the Lender not later than 11:30 a.m. New York time on the Business Day which is two (2) Business Days immediately prior to the day of the proposed borrowing, the Lender, subject to the terms and conditions of this Agreement, shall be required to make an Advance by 12:30 p.m. New York time on such day of the proposed borrowing for the account of the Authority in an amount equal to the amount of the requested borrowing. Each Request for Advance in respect of a Tax-Exempt Loan shall be signed by an Authority Representative and shall specify that the requested Advance shall be a Tax-Exempt Loan. Each Advance shall be made by the Lender by wire transfer of immediately available funds to Authority in accordance with written instructions provided by the Authority. (d) Revolving Loans Evidenced by Notes. (i) The Tax-Exempt Loans are evidenced by a promissory note of the Authority to the Lender in substantially the form set forth in Exhibit A hereto (as amended or supplemented from time to time, the “Tax-Exempt Note”) which was issued on the Original Closing Date, payable to the Lender in a principal amount up to the Commitment on the Original Closing Date and otherwise duly completed. All Tax-Exempt Loans made by the Lender and all payments and prepayments made on account of principal thereof shall be recorded by the Lender on the schedule (or a continuation thereof) attached to the Tax-Exempt Note, it being understood, however, that failure by the Lender to make any such endorsement shall not affect the obligations of the Authority hereunder or under the Tax-Exempt Note with respect to unpaid principal and interest on any Tax-Exempt Loan. Each entry on the Tax-Exempt Note with respect to a Tax-Exempt Loan schedule shall reflect the applicable principal amount and the applicable interest rate.
(ii) The Taxable Loans are evidenced by a promissory note of the Authority to the Lender in substantially the form set forth in Exhibit B hereto (as amended or supplemented from time to time, the “Taxable Note”) which was issued on the Original Closing Date, payable to the Lender in a principal amount up to the Commitment on the Original Closing Date and otherwise duly completed. All Taxable Loans made by the Lender and all payments and prepayments made on account of principal thereof shall be recorded by the Lender on the schedule (or a continuation thereof) attached to the Taxable Note, it being understood, however, that failure by the Lender to make any such endorsement shall not affect the obligations of the Authority hereunder or under the Taxable Note with respect to unpaid principal and interest on any Taxable Loan. Each entry on the Taxable Note with respect to a Taxable Loan schedule shall reflect the applicable principal amount and the applicable interest rate.
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(e) Repayment of Principal on Revolving Loans. The principal of each Revolving Loan shall be due in full on the Commitment Termination Date. (f) Interest on Revolving Loans. Each Revolving Loan made or maintained by the Lender shall bear interest computed on the basis of a year of 360 days and actual days elapsed, on the unpaid principal amount thereof at a rate per annum equal to the Tax-Exempt Rate or Taxable Loan Rate, as applicable. Interest shall be payable in arrears on the first Business Day of each calendar month (each such date, an “Interest Payment Date”), commencing on the first such date following the date of the relevant Advance. Interest paid on each Interest Payment Date shall equal interest accrued during the preceding calendar month. The Tax-Exempt Rate and Taxable Loan Rate shall be determined by the Lender as provided in Section 2.07 hereof. (g) Prepayment of Revolving Loans. Subject to Section 2.12 hereof, the Authority may prepay any Revolving Loan, in whole or in part, on an Interest Payment Date, provided at least three (3) days’ written notice is provided by the Authority to the Lender. All prepayments of principal shall include accrued interest to the date of prepayment and all other amounts due pursuant to this Agreement.
(h) Default Interest. Subject to subsection (i) below, from and after the Maturity Date, or such earlier date as all principal owing hereunder becomes due and payable by acceleration or otherwise, or at Lender’s option upon the occurrence, and during the continuance of an Event of Default, the outstanding principal balance of the Loans under this Agreement shall bear interest at an increased rate per annum (computed on the basis of a 360-day year, actual days elapsed) equal to the Default Rate.
(i) Advance of Term Loan. If (i) no Default or Event of Default has occurred and is continuing, and (ii) all representations and warranties set forth in Article IV are true and correct, in each case as of the Maturity Date, which representations and warranties (other than as provided in Section 4.02(j) hereof) shall be deemed remade as of the Maturity Date, then any principal amount of Revolving Loans remaining unpaid on the Maturity Date shall convert to a term loan (the “Term Loan”) and the proceeds thereof shall be used to pay in full the Revolving Loans, which Term Loan shall become payable upon the earlier to occur of (x) the third anniversary of the Maturity Date and (y) the date on which any Senior Lien Obligation or Parity Obligation is issued (the “Term Loan Maturity Date”). Any Revolving Loans not converted to a Term Loan shall be payable on the Maturity Date and shall bear interest at the Default Rate. Subject to the condition set forth in the immediately preceding sentence, the Term Loan shall be payable in twelve (12) equal, quarterly principal installments on the first Business Day of each January, April, July and October (each an “Installment Date”), beginning on the first of such dates to occur following the Maturity Date. The Term Loan shall be evidenced by a promissory note of the Authority to the Lender in substantially the form set forth in Exhibit C hereto (as amended or supplemented from time to time, the “Term Loan Note”), which Term Loan Note was issued on the Original Closing Date, payable to the Lender in a principal amount up to the Commitment on the Term Loan Maturity Date and otherwise duly completed, so long as the conditions set forth in this Section
2.01(i) are satisfied. As long as no Event of Default has occurred or is continuing, the Term Loan shall accrue interest at the Term Loan Rate and shall be payable monthly in arrears on the first Business Day of each month, beginning on the first of such dates to occur following the Maturity Packet Pg. 564 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -22-
Date. Subject to Section 2.12 hereof, any amount of principal outstanding under the Term Loan may be prepaid at any time without penalty.
Section 2.02. Reserved.
Section 2.03. Increased Costs.
(a) Increased Costs Generally. If any Change of Law shall:
(i) impose, modify or deem applicable any reserve, liquidity ratio, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or advances, loans or other credit extended or participated in by, the Lender or any Participant;
(ii) subject to the Lender or any Participant to any Taxes of any kind whatsoever with respect to this Agreement, or change the basis of taxation of payments to the Lender or such Participant in respect thereof (except for Indemnified Taxes covered by Section 2.04 hereof and the imposition of, or any change in the rate of any Excluded Tax payable by the Lender or any Participant); or
(iii) impose on the Lender or any Participant any other condition, cost or expense affecting this Agreement;
and the result of any of the foregoing shall be to increase the cost to the Lender or such Participant related to issuing or maintaining this Agreement, or to reduce the amount of any sum received or receivable by the Lender or such Participant hereunder (whether of principal, interest or any other amount) then, upon written request of the Lender or such Participant, the Authority shall promptly pay to the Lender or such Participant, as the case may be, such additional amount or amounts as will compensate the Lender or such Participant, as the case may be, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If the Lender or any Participant determines that any Change of Law affecting the Lender or such Participant or the Lender’s or such Participant’s parent or holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducing the rate of return on the Lender’s or such Participant’s capital or liquidity or the capital or liquidity of such Lender’s or such Participant’s parent or holding company holding, if any, as a consequence of this Agreement, or for maintaining this Agreement, to a level below that which the Lender or such Participant or the Lender’s or such Participant’s parent or holding company could have achieved but for such Change of Law (taking into consideration the Lender’s or such Participant’s policies and the policies of the Lender’s or such Participant’s parent or holding company with respect to capital adequacy or liquidity), then from time to time upon written request of the Lender or such Participant the Authority shall promptly pay to the Lender or such Participant, as the case may be, such additional amount or amounts as will compensate the Lender or such Participant or the Lender’s or such Participant’s parent or holding company for any such reduction suffered.
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(c) Certificates for Reimbursement. A certificate of the Lender or a Participant setting forth the amount or amounts necessary to compensate the Lender or any such Participant or the Lender’s or any such Participant’s parent or holding company, as the case may be, as specified in paragraph (a) or (b) of this Section and delivered to the Authority, shall be conclusive absent manifest error. The Authority shall pay the Lender or any such Participant, as the case may be, the amount shown as due on any such certificate within ten (10) days after receipt thereof. The City and the Authority each agree that the Bank’s and each Participant’s parent or holding company or any corporation controlling the Bank and/or any such Participant shall have the same rights and benefits against the Authority under this Section 2.03 as it would have had if such parent or holding company or any corporation controlling the Bank and/or any such Participant were the Bank or Participant, as applicable, hereunder; provided, however, that increased costs, increased capital or liquidity, or reduction in rate of return incurred by or imposed on the Bank’s and/or each Participant’s parent or holding company or any corporation controlling the Bank and/or any such Participant shall be without duplication of any increased costs, increased capital or liquidity, or reduction in rate of return incurred by or imposed on the Bank and/or any such Participant.
Notwithstanding the foregoing, no Participant shall be entitled to receive (nor shall the Lender be entitled to receive on behalf of any Participant) any greater payment under this Section 2.03 than the Lender would have been entitled to receive without regard to any such participation unless such participation is made with the express written consent of the Authority. (d) Delay in Requests. Failure or delay on the part of the Lender or any such Participant to demand compensation pursuant to this Section shall not constitute a waiver of the Lender’s or any such Participant’s right to demand such compensation; provided, however, the Authority shall not be required to compensate the Bank and/or any Participant pursuant to this Section 2.03, (i) in an amount greater than that which it would have been required to pay if the Bank had not granted any participation in the Loans, or (ii) for any increased costs incurred or reductions suffered more than six (6) months prior to the date that the Bank or any Participant, as the case may be, notifies the Authority of the Change in Law giving rise to such increased costs or reductions, and the Bank’s or any Participant’s intention to claim compensation therefor (except that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six (6) month period referred to above shall be extended to include the period of retroactive effect thereof). (e) Survival. Without prejudice to the survival of any other agreement of the Authority hereunder, the agreements and obligations of the Authority contained in this Section shall survive the termination of this Agreement and the payment in full of the Obligations of the Authority thereunder and hereunder.
Section 2.04. Net of Taxes, Etc. (a) Any and all payments to the Lender by the Authority hereunder shall be made free and clear of and without withholding or deduction for any and all Indemnified Taxes. If the Authority shall be required by law to withhold or deduct any Indemnified Taxes imposed by the United States or any political subdivision thereof from or in respect of any sum payable hereunder to the Lender, then (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.04), the Lender receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Authority shall make such deductions and (iii) the Authority shall pay the full amount deducted to the relevant taxation Packet Pg. 566 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -24-
authority or other authority in accordance with applicable law. If the Authority shall make any payment under this Section 2.04 to or for the benefit of the Lender with respect to Indemnified Taxes and if the Lender shall claim any credit or deduction for such Indemnified Taxes against any other taxes payable by the Lender to any taxing jurisdiction in the United States then the Lender shall pay to the Authority an amount equal to the amount by which such other taxes are actually reduced; provided, that the aggregate amount payable by the Lender pursuant to this sentence shall not exceed the aggregate amount previously paid by the Authority with respect to such Indemnified Taxes. In addition, the Authority agrees to pay any present or future stamp, recording or documentary taxes and any other excise or property taxes, charges or similar levies that arise under the laws of the United States of America or any state of the United States from any payment made hereunder or otherwise with respect to this Agreement (hereinafter referred to as “Other Taxes”). The Lender shall provide to the Authority within a reasonable time a copy of any written notification it receives with respect to Indemnified Taxes or Other Taxes owing by the Authority to the Lender hereunder; provided, that the Lender’s failure to send such notice shall not relieve the Authority of its obligation to pay such amounts hereunder. (b) The Authority shall, to the fullest extent permitted by law and subject to the provisions hereof, pay the Lender for the full amount of Indemnified Taxes and Other Taxes including any Indemnified Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 2.04 paid by the Lender or any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally asserted; provided that the Authority shall not be obligated to pay the Lender for any penalties, interest or expenses relating to Indemnified Taxes or Other Taxes arising from the Lender’s gross negligence or willful misconduct. The Lender agrees to give notice to the Authority of the assertion of any claim against the Lender relating to such Indemnified Taxes or Other Taxes as promptly as is practicable after being notified of such assertion; provided, that the Lender’s failure to notify the Authority promptly of such assertion shall not relieve the Authority of its obligation under this Section 2.04. Payments by the Authority pursuant to this subsection (b) shall be made within thirty (30) days from the date the Lender makes written demand therefor, which demand shall be accompanied by a certificate describing in reasonable detail the basis thereof. The Lender agrees to repay to the Authority any refund (including that portion of any interest that was included as part of such refund) with respect to Taxes or Other Taxes paid by the Authority pursuant to this Section 2.04 received by the Lender for Indemnified Taxes or Other Taxes that were paid by the Authority pursuant to this Section 2.04 and to contest, with the cooperation and at the expense of the Authority, any such Indemnified Taxes or Other Taxes which the Lender or the Authority reasonably believes not to have been properly assessed.
(c) Within thirty (30) days after the date of any payment of Indemnified Taxes by the Authority, the Authority shall furnish to the Lender the original or a certified copy of a receipt evidencing payment thereof.
(d) Without prejudice to the survival of any other agreement of the Authority hereunder, the agreements and obligations of the Authority contained in this Section shall survive the termination of this Agreement and the payment in full of the Obligations of the Authority thereunder and hereunder.
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Section 2.05. Excess Interest. (i) If the amount of interest payable for any period in accordance with the terms hereof exceeds the amount of interest that would be payable for such period had interest for such period been calculated at the maximum interest rate permitted by Applicable Law, then interest for such period shall be payable in an amount calculated at the maximum interest rate permitted by Applicable Law.
(ii) Any interest that would have been due and payable for any period but for the operation of the immediately preceding subclause (i) shall accrue and be payable as provided in this subclause (ii) and shall, less interest actually paid to the applicable Lender for such period, constitute the “Excess Interest Amount.” If there is any accrued and unpaid Excess Interest Amount as of any date, then the principal amount with respect to which interest is payable shall bear interest at the maximum interest rate permitted by Applicable Law until payment to the Lender of the entire Excess Interest Amount.
(iii) Notwithstanding the foregoing, on the date on which no principal amount hereunder remains unpaid, to the extent possible without violating Applicable Laws, the Authority shall pay to the Lender a fee equal to any accrued and unpaid Excess Interest Amount.
Section 2.06. Taxable Date. (i) In the event a Taxable Date occurs, the Authority hereby agrees to pay to the Lender or any Participant within 30 days of receipt of notice from a Lender (1) an amount equal to the difference between (A) the amount of interest that would have been paid to the Lender, or such Participant, as applicable, on any Tax-Exempt Loans during the period for which interest on such Tax-Exempt Loans is includable in the gross income of the Lender or such Participant, as applicable, if such Tax-Exempt Loans had borne interest at the Taxable Gross-Up Rate, beginning on the Taxable Date (the “Taxable Period”), and (B) the amount of interest actually paid to the Lender or such Participant, as applicable, during the Taxable Period, and (2) an amount equal to any interest, penalties or charges owed by the Lender, or any Participant, as applicable, as a result of interest on the Tax-Exempt Loans becoming includable in the gross income of the Lender or such Participant, as applicable, together with any and all reasonable attorneys’ fees, court costs, or other out-of-pocket costs incurred by the Lender or such Participant, as applicable, in connection therewith.
(ii) Subject to the provisions of clauses (iii) and (iv) below, the Lender shall afford the Authority the opportunity, at the Authority’s sole cost and expense, to contest (1) the validity of any amendment to the Code which causes the interest on such Tax-Exempt Loans to be includable in the gross income of the Lender or any Participant or (2) any challenge to the validity of the tax exemption with respect to the interest on the Tax-Exempt Loans, including the right to direct the necessary litigation contesting such challenge (including administrative audit appeals). To the extent any such contest results in a determination that no Taxable Date occurred with respect to a Tax-Exempt Loan or any portion thereof, or that the relevant Taxable Date occurred later than previously assumed for purposes hereof, the Lender shall refund to Authority any amount paid to the Lender by the Authority pursuant to the provisions of clause (i) above in excess of the amount that would have been payable, if any, if no Taxable Date had occurred or the relevant Taxable Date occurred later than previously assumed, as applicable.
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forth in clause (ii) above, the Authority shall, on demand, immediately reimburse the Lender or such Participant, as applicable, for any and all expenses (including reasonable attorneys’ fees for services that may be required or desirable) that may be incurred by the Lender or such Participant, as applicable, in connection with any such contest, and shall, on demand, immediately reimburse the Lender or such Participant, as applicable, for any and all penalties or other charges payable by the Lender or such Participant, as applicable, for failure to include such interest in its gross income.
(iv) Upon the occurrence of a Taxable Date, subject to Section 2.12 hereof, the Authority may choose to repay the outstanding principal amount of Tax-Exempt Loans with the proceeds of a Taxable Loan.
(v) The obligations of the Authority and the Lender under this Section 2.06 shall survive the termination of this Agreement.
Section 2.07. Determination of Tax-Exempt Rates and Taxable Loan Rates. (a) For the period commencing on the Original Closing Date, to but not including the Amendment and Restatement Date, the Loans outstanding under the Existing Credit Agreement shall bear interest in accordance with the applicable terms and provisions specified in the Existing Credit Agreement as in effect from time to time prior to the Amendment and Restatement Date. [Any interest on the Initial Revolving Loan accrued pursuant to the Existing Credit Agreement shall be payable by the Authority on the first Interest Payment Date to occur hereunder. From an after the Amendment and Restatement Date, the Initial Revolving Loan shall (1) constitute a [Tax-Exempt][Taxable] Loan hereunder, (2) shall bear interest as set forth in the immediately succeeding clause (B) and (3) otherwise be payable as a [Tax-Exempt][Taxable] Loan pursuant to the terms and conditions hereof.]
(b) Tax-Exempt Loans shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Tax-Exempt Rate. (c) Taxable Loans shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Taxable Loan Rate. (d) The initial Tax-Exempt Rate or Taxable Loan Rate, as applicable, for a particular Revolving Loan shall be determined by the Lender on the Computation Date immediately preceding the related borrowing date; provided, however, that (i) if there are any Tax-Exempt Loans already outstanding on any borrowing date, such new Tax-Exempt Loan shall bear interest at the Tax-Exempt Rate then in effect and (ii) if there are any Taxable Loans already outstanding on any borrowing date, such new Taxable Loan shall bear interest at the Taxable Loan Rate then in effect[; provided, further, however, with respect to the Initial Revolving Loan, the initial Tax-Exempt Rate shall be determined on the Computation Date immediately preceding the Amendment and Restatement Date]. Following the determination of the initial rate, the applicable Tax-Exempt Rate or Taxable Loan Rate for the next succeeding Interest Accrual Period shall be determined by the Lender on the Computation Date immediately preceding such Interest Accrual Period, and such rate shall be effective on the immediately succeeding BSBY Index Rate Reset Date. Thereafter, the applicable Tax-Exempt Rate or Taxable Loan Rate shall be Packet Pg. 569 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -27-
determined by the Lender on each Computation Date, and such rate shall be effective on the immediately succeeding BSBY Index Rate Reset Date. The Lender will consolidate the unpaid principal balance of the Tax-Exempt Loans so that all Tax-Exempt Loans bear interest at the same Tax-Exempt Rate and so there is only one (1) Interest Accrual Period in effect at any time for Tax-Exempt Loans. The Lender will consolidate the unpaid principal balance of the Taxable Loans so that all Taxable Loans bear interest at the same Taxable Loan Rate and so that there is only one (1) Interest Accrual Period in effect at any time for Taxable Loans.
Section 2.08. Pledge of Authority Revenues and Obligations Absolute. (a) The Authority hereby pledges the Authority Revenues to secure the payment of the principal of, premium, if any and interest on the Revolving Notes and the payment of all other amounts payable by the Authority under this Agreement. This pledge shall constitute a lien on and security interest in such assets and shall attach, be perfected and be valid and binding from and after delivery of the Revolving Notes, without any physical delivery thereof or further act.
(b) In addition, the Authority hereby grants a security interest in and assigns to the Lender all of the right, title and interest of the Authority in the Installment Sale Agreement as security for the repayment of all amounts payable under the Revolving Notes and under this Agreement. The Lender shall be entitled to and shall collect and receive all of the Authority Revenues, and any Authority Revenues collected or received by the Authority shall be deemed to be held, and to have been collected or received, by the Authority as the agent of the Lender and shall forthwith be paid by the Authority to the Lender. The Lender shall also be entitled to take all steps, actions and proceedings reasonably necessary in its judgment to enforce all of the rights of the Authority and all of the obligations of the City under the Installment Sale Agreement. (c) The City hereby acknowledges the foregoing pledge of the Authority Revenues and all of the rights, title and interest of the Authority in the Installment Sale Agreement. The City agrees to pay the Authority Revenues to the Lender to the extent amounts are owed hereunder and/or under the Revolving Notes. None of the obligations of the Authority hereunder or under the Revolving Notes shall be a debt of the City within the meaning of any constitutional, statutory or charter limitation upon the creation of general obligation indebtedness of the City, and the Authority shall not be liable for the payment of any amounts hereunder or under the Revolving Notes out of any money of the Authority other than the Authority Revenues. (d) The payment obligations of the Authority under this Agreement shall be unconditional and irrevocable obligations of the Authority, payable solely from Authority Revenues and paid strictly in accordance with the terms of this Agreement under all circumstances, including without limitation the following: (i) any lack of validity or enforceability of the Related Documents or any provision thereof; (ii) any amendment or waiver of or any consent to departure from all or any of the Related Documents; (iii) the existence of any claim, set off, defense or other right which the Authority may have at any time against the Lender, or any other Person, whether in connection with the Related Documents, the transactions contemplated herein or therein or any unrelated transaction; or (iv) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
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Section 2.09. Fees.
(a) Undrawn Commitment Fee. (i) For the period commencing on the Original Closing Date to but not including the Amendment and Restatement Date, the Authority agrees to pay to the Lender a commitment fee in accordance with the applicable terms and provisions specified in the Existing Credit Agreement as in effect from time to time prior to the Amendment and Restatement Date. Such commitment fees shall be payable by the Authority on July 3, 2023. The Authority and the City each acknowledge and agree that all fees previously paid to the Lender under the Existing Credit Agreement were fully earned and nonrefundable. (ii) For the period commencing on and including the Amendment and Restatement Date, the Authority shall pay to the Lender a per annum fee equal to the Undrawn Commitment Fee (computed on the basis of a 360-day year, actual days elapsed) on the average daily Available Commitment, which fee shall be due and payable by the Authority quarterly in arrears on the first Business Day of each April, July, October and January of each calendar year (beginning on the first such date to occur after the Closing Date) and on the Commitment Termination Date, or such earlier date on which the Commitment may be terminated in accordance with the terms of this Agreement. (b) Reserved.
(c) Termination or Reduction Fee. The Authority shall pay to the Lender a Termination Fee in connection with a termination or reduction of the Commitment prior to the first anniversary of the Amendment and Restatement Date, in an amount equal to the applicable Termination Fee, payable on the date of such termination or reduction; provided that, anything herein to the contrary notwithstanding, no Termination Fee shall be payable by the Authority if (i) the Commitment is terminated following a request by the Lender for increased costs pursuant to Section 2.03. hereof, or (ii) such termination is the result of the interest rate on Revolving Loans being converted to the Alternate Rate pursuant to Section 2.14 or 2.15 hereof. (d) Amendment, Consent or Waiver Fee. Upon each amendment hereof, consent or waiver hereunder or under any Loan Document, the Authority shall pay or cause to be paid attorneys’ fees and expenses, if any, incurred by the Lender in processing such amendment, consent or waiver and a fee to the Lender in a minimum amount of $2,500. (e) Costs, Expenses and Taxes. The Authority will promptly pay on demand (i) the reasonable fees, costs and expenses of the Lender incurred in connection with the preparation, negotiation, execution and delivery of this Agreement, the Revolving Notes and the other Loan Documents, (ii) the fees (in an amount not to exceed $15,000) and disbursements of Chapman and Cutler LLP, counsel to the Lender, incurred in connection with the preparation, execution and delivery of this Agreement, (iii) the reasonable fees and disbursements of counsel or other reasonably required consultants to the Lender with respect to advising the Lender as to the rights and responsibilities under this Agreement and the other Loan Documents after the occurrence of any Default or alleged Default hereunder, or an Event of Default, (iv) all reasonable costs and expenses, if any, in connection with any waiver or amendment of, or the giving of any approval or consent under, or any response thereto or the enforcement of this Agreement, the other Loan Packet Pg. 571 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -29-
Documents and any other documents which may be delivered in connection herewith or therewith, including in each case the reasonable fees and disbursements of counsel to the Lender or other reasonably required consultants and (v) any amounts advanced by or on behalf of the Lender to the extent required to cure any Default, Event of Default or event of nonperformance hereunder or any Loan Document, together with interest at the Default Rate. In addition, the Authority shall pay any and all stamp taxes, transfer taxes, documentary taxes, and other taxes and fees payable or determined to be payable in connection with the execution and delivery of this Agreement (other than taxes based on the net income of the Lender) and agrees, to extent permitted by applicable law and public policy, to indemnify and hold the Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying, or omission to pay, such taxes and fees, including interest and penalties thereon. In addition, the Authority agrees to pay, after the occurrence of a Default, alleged Default or an Event of Default, all reasonable costs and expenses (including attorneys’ fees and costs of settlement) incurred by the Lender in enforcing any obligations or in collecting any payments due from the Authority hereunder by reason of such Default, alleged Default or Event of Default or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a “workout” or of any collection, insolvency, bankruptcy proceedings or other enforcement proceedings resulting therefrom.
Section 2.10. Extension of Maturity Date. The Authority may request an extension of the Maturity Date in writing in the form of Exhibit E hereto not more than one hundred twenty (120) days prior to the then current Maturity Date. The Lender will make reasonable efforts to respond to such request within sixty (60) days after receipt of all information necessary, in the Lender’s judgment, to permit the Lender to make an informed credit decision. If the Lender fails to definitively respond to such request within such sixty (60) day period, the Lender shall be deemed to have refused to grant the extension requested. The Lender may, in its sole and absolute discretion, decide to accept or reject any such proposed extension and no extension shall become effective unless the Lender shall have consented thereto in writing in the form of Exhibit F hereto or otherwise. The Lender’s consent, if granted, shall be conditioned upon the preparation, execution and delivery of documentation in form and substance satisfactory to the Lender (which may include, but shall not be limited to the delivery of a “no adverse effect opinion” of Bond Counsel to the Lender with respect to the tax-exempt status of the Revolving Notes).
Section 2.11. Payments Due on Non-Business Days. In any case where the date of any payment due shall not be a Business Day, then payment need not be made on such date but shall be made on the next succeeding Business Day, with the same force and effect as if made on the date due, with interest to accrue to the date of such payment.
Section 2.12. Breakage Expenses. In the event the Lender shall incur any loss, cost, or expense (including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired or contracted to be acquired by the Lender or the relending or reinvesting of such deposits or other funds or amounts paid or prepaid to the Lender) as a result of any prepayment of the Revolving Loans, including any loss, cost, or expense resulting from prepayment on a day other than an BSBY Index Rate Reset Date (the “Breakage Expenses”), for any reason, whether before or after a Default, and whether or not such payment is required by any provision of this Agreement or the Related Documents, then upon Packet Pg. 572 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -30-
the demand of the Lender, the Authority shall pay to the Lender a prepayment, redemption or conversion premium, as applicable, in such amount as will reimburse the Lender for such Breakage Expenses. If the Lender requests such Breakage Expenses it shall provide to the Authority a certificate setting forth the computation of the Breakage Expenses in reasonable detail and such certificate shall be conclusive if reasonably determined.
Section 2.13. Reduction and Termination. (a) Subject to the provisions of Section 2.09(c) hereof, the Available Commitment shall be reduced from time to time as requested by the Authority within ten (10) days of the Authority’s written notice to the Lender requesting such reduction in the form of Exhibit G hereto; provided, that (i) each such reduction amount shall be in an amount equal to $1,000,000 or an integral multiple thereof, and (ii) any reduction in the Available Commitment shall not be effective until the Lender delivers to the Authority a notice in the form attached hereto as Exhibit H reflecting such reduction. (b) Subject to the provisions of Section 2.09(c) hereof, the Authority may at any time and at its sole option terminate the Commitment upon ten (10) Business Days’ prior written notice to the Lender in the form of Exhibit G hereto. As a condition to any such termination, the Authority shall pay or cause to be paid all Obligations due and owing to the Lender at such time.
Section 2.14. Illegality. If the Lender determines that any law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for the Lender to make, maintain or fund Revolving Loans whose interest is determined by reference to BSBY, or to determine or charge interest rates based upon BSBY, or any Governmental Authority has imposed material restrictions on the authority of the Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by the Lender to the Authority, any obligation of the Lender to make Revolving Loans with reference to BSBY shall be suspended until the Lender notifies the Authority that the circumstances giving rise to such determination no longer exist.
Upon receipt of such notice, the Authority shall, upon demand from the Lender convert the interest on all Revolving Loans to Revolving Loans that bear interest at the Alternate Rate, either on the BSBY Index Rate Reset Date relating to such Revolving Loans, if the Lender may lawfully continue to maintain such Advances until such day, and if the Lender may not lawfully continue to maintain Revolving Loans through the BSBY Index Rate Reset Date therefor, then immediately upon demand. Upon any such conversion, the Authority shall also pay accrued interest on the amount so converted on the date of such conversion.
Section 2.15. Adequacy of Interest Rate. (a) Notwithstanding anything to the contrary in this Agreement or any other Related Document, but in any event subject to Sections 2.05 and 2.07 hereof, if the Lender determines (which determination shall be conclusive absent manifest error) that:
(i) deposits of a type and maturity appropriate to match fund Revolving Loans bearing interest at the Taxable Loan Rate or Tax-Exempt Rate are not available to the Lender in the relevant market, or
(ii) the Taxable Loan Rate or Tax-Exempt Rate applicable to Revolving Loans is not ascertainable or available (including, without limitation, because the applicable Packet Pg. 573 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -31-
Reuters Screen (or on any successor or substitute page on such screen) is unavailable) or does not adequately and fairly reflect the cost of making Revolving Loans at the Taxable Loan Rate or Tax-Exempt Rate,
then the Lender shall suspend the availability of the Taxable Loan Rate or Tax-Exempt Rate and require any affected Revolving Loans be repaid or converted to bearing interest at the Alternate Rate.
(b) Inability to Determine Rates. (i) If the Lender determines in its sole discretion that for any reason in connection with any Revolving Loan or a conversion to or continuation thereof that (A) the administrator of the BSBY Rate (or any substitute index which replaces the BSBY Rate (the BSBY Rate or such replacement, the “Benchmark”)) has made a public statement that such Benchmark will no longer be provided, (B) the administrator of the Benchmark has announced that such Benchmark is no longer representative or (C) any similar circumstance exists such that such Benchmark has become permanently unavailable or ceased to exist, the Lender will promptly so notify the City and the Authority. Upon such determination, the obligation of the Lender to make or maintain Revolving Loans whose interest is determined by reference to the BSBY Rate shall be suspended until the Lender revokes such notice. The Lender will replace such Benchmark with a replacement rate. In the case of the BSBY Rate, such replacement rate will be Term SOFR; provided that if the Lender determines in its sole discretion that Term SOFR is not available for the applicable Revolving Loan at the time of such replacement, then such replacement rate will be Daily Simple SOFR. In connection with the selection and implementation of any such replacement rate, the Lender may make any technical, administrative or operational changes that the Lender decides may be appropriate to reflect the adoption and implementation of such replacement rate. The Lender’s internal records of applicable interest rates shall be determinative in the absence of manifest error. If the alternate rate of interest determined pursuant to this Section 2.15(b) shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. For purposes of this Agreement, (1) “Board” means the Board of Governors of the Federal Reserve System together with any committees convened by the Board of Governors of the Federal Reserve System, (2) “SOFR” means the secured overnight financing rate which is published by the Board and available at www.newyorkfed.org; (3) “Term SOFR” means the greater of (x) zero percent (0%) and (y) a forward-looking term rate based on SOFR and recommended by the Board plus 0.11448% (11.448 basis points) for a one-month tenor; and (4) “Daily Simple SOFR” means the greater of (x) zero percent (0%) and (y) a daily rate based on SOFR and determined by the Lender in accordance with the conventions for such rate selected by the Lender, plus 0.11448% (11.448 basis points).
(ii) Opinion or Tax Gross-up Required. Upon the transition from a Benchmark to a replacement rate, either: (1) the Authority, at its own expense, will deliver to the Lender an opinion of Bond Counsel acceptable to the Lender that the replacement of a Benchmark with a replacement rate does not adversely affect the exclusion from gross income of interest on the Tax-Exempt Revolving Loans for the Lender or any other holder of the Tax-Exempt Note; or (2) if no such opinion is delivered to the Lender on the effective date of such replacement, a Determination of Taxability shall have been deemed to have occurred and, thereafter, any outstanding Tax-Exempt Revolving Loan shall bear interest at the Taxable Rate.
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ARTICLE III
CONDITIONS PRECEDENT
Section 3.01. Documentary Requirements for Agreement to Extend Credit. The obligation of the Lender to continue to extend credit as contemplated by this Agreement is subject to the conditions precedent that the Lender shall have received, on or before the Amendment and Restatement Date, the items listed below in this Section, each dated and in form and substance as is satisfactory to the Lender and its counsel.
(a) A true and correct copy of the resolution approving the execution, delivery and performance of this Agreement and the Related Documents, certified by a duly authorized officer of the Authority and/or the City, as applicable, on the Amendment and Restatement Date, which certificate shall state that such resolution has not been amended, repealed or rescinded, and is in full force and effect on the Amendment and Restatement Date;
(b) An executed copy of this Agreement;
(c) A certificate by an officer of each of the Authority and the City certifying the names and signatures of the persons authorized to sign, on behalf of the City and the Authority, the Loan Documents to which it is a party and the other documents to be delivered by it hereunder or thereunder;
(d) An opinion of counsel to the City and the Authority; (e) An opinion of Bond Counsel;
(f) Written confirmation (which may be in the form of one or more screenshots) of the Obligor Ratings as of the Amendment and Restatement Date; (g) A certificate signed by the Authority and the City, stating that on and as of the Amendment and Restatement Date (i) the Authority and the City are each in compliance with all of the terms and provisions of the Related Documents; (ii) each representation and warranty on the part of each of the City and the Authority contained in the Related Documents is true and correct as though made on and as of the Amendment and Restatement Date; (iii) no Default or Event of Default has occurred and is continuing or would result from the execution or performance of the Related Documents to which the City or the Authority is a party; and (iv) no petition by or against the City or the Authority has at any time been filed under the United States Bankruptcy Code or under any similar Law;
(h) Payment of the reasonable fees and expenses of the Lender and counsel to the Lender incurred in connection with the transactions contemplated by the Loan Documents, subject to the limitations otherwise provided herein; and Packet Pg. 575 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -33-
(i) Such other instruments, documents and opinions as the Lender shall reasonably require to comply with the provisions of the Related Documents and the requirements of any Governmental Authority to which the Lender, the City or the Authority is subject.
Section 3.02. Credit Requirements. Prior to the Amendment and Restatement Date, the Lender shall have determined, in its sole discretion, based in part upon the information and reports submitted by the City or the Authority, that the City and the Authority has met the Lender’s credit requirements.
Section 3.03. Conditions Precedent to Each Advance Hereunder. The obligation of the Lender to make an Advance hereunder shall be subject to (a) receipt by the Lender, at least two (2) Business Days prior to the date the Advance is to be funded, of a duly completed Request for Advance, which shall include the following certifications: (i) each representation and warranty on the part of the City and the Authority contained in the Loan Documents is true and correct as though made on and as of the date of the Advance; provided, that with respect to Section 4.01(e),
4.02(e) and 4.02(i), such representations and warranties shall be true and correct as of the Amendment and Restatement Date; provided, further, that with respect to Section 4.02(j), such representation and warranty shall be deemed to refer to the most recent financial statements delivered pursuant to Section 5.02(a)(i) hereof; and (ii) no Default or Event of Default has occurred and is continuing or would result from funding the Advance, and (b) if the Advance is in respect of a Tax-Exempt Loan, (i) satisfaction of the condition that none of the City, the Authority or the Lender shall have received written notice from Bond Counsel to the effect that the tax opinion delivered pursuant to Section 3.04 hereof may no longer be relied upon, and (ii) receipt by the Lender of a copy of a completed Form 8038-G to be filed by the City and the Authority, but only in the event that a new Form 8038-G is required by Bond Counsel.
Section 3.04. Conditions Precedent to the Initial Tax-Exempt Loan. The obligation of the Lender to make an Advance hereunder relating to the making of the initial Tax-Exempt Loan hereunder shall be subject to receipt by the Lender, at least two (2) Business Days prior to the date such Advance is to be funded, of (a) a duly completed Request for Advance in the form required by Section 3.03 hereof, (b) a tax opinion of Bond Counsel with regard to interest on each Tax-Exempt Loan made or to be made hereunder, in form and substance satisfactory to the Lender, and (c) a copy of a completed Form 8038-G to be filed by the City and the Authority.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Authority. The Authority represents and warrants that:
(a) Organization and Powers. The Authority (a) is a joint exercise of powers authority duly formed and existing under the Joint Powers Agreement and the Act, (b) has Packet Pg. 576 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -34-
all powers and all material governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted, (c) has all required power and authority to execute, deliver and perform its obligations under this Agreement and the Loan Documents to which it is a party and (d) is licensed or qualified to do business in each jurisdiction where the ownership of property or the conduct of its business requires such qualifications.
(b) Authorization; Contravention. The adoption, execution, delivery and performance by the Authority of the Loan Documents to which it is a party and the making of the borrowings hereunder are within the Authority’s power and authority, have been duly authorized by all necessary action by the Authority and do not contravene, or result in the violation of or constitute a default under, any provision of the Constitution of the State of California or any applicable law or regulation, or any order, rule or regulation of any court, governmental agency or instrumentality or any agreement, resolution or instrument to which the Authority is a party or by which it or any of its property is bound. (c) Governmental Consent or Approval. No authorization, consent, approval, permit, license, exemption of or filing or registration with, any court or governmental department, commission, board, bureau, agency or instrumentality is or will be necessary for the valid execution, delivery or performance by the Authority of the Loan Documents to which it is a party except such consents, authorizations, orders and approvals (copies of which have been furnished to the Lender) as have been obtained, were validly issued and are in full force and effect.
(d) Binding Effect. This Agreement and each Revolving Note each have been duly executed by the Authority and delivered in accordance with this Agreement and the Loan Documents. Each of the Loan Documents to which the Authority is a party has been duly executed and delivered by or on behalf of the Authority. Each of the Loan Documents to which the Authority is a party constitute valid and binding obligations of the Authority enforceable in accordance with their respective terms against the Authority, except as such enforceability may be limited to (i) bankruptcy, insolvency, reorganization, or similar laws affecting creditors’ rights generally, (ii) general principles of equity, (iii) the exercise of judicial discretion in appropriate cases, and (iv) the limitations on legal remedies against joint powers authorities in the State of California.
(e) Litigation. As of the Amendment and Restatement Date, except as disclosed in writing by the Authority to the Lender prior to the Amendment and Restatement Date, there are no actions, suits or proceedings pending with service of process accomplished or, to the best of the knowledge of the Authority, threatened in writing, against or affecting the Authority or relating to the Loan Documents, in any court or before or by any governmental department, agency or instrumentality in which there is a reasonable possibility of any adverse decision which could have a Material Adverse Effect (together with the litigation described in Section 4.02(e), “Material Litigation”). (f) Compliance; No Default. No “event of default” specified in any of the Loan Documents to which the Authority is a party and no event which, with the giving of notice or lapse of time or both would become such an event of default, has occurred and is Packet Pg. 577 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -35-
continuing.
(g) Immunity. The Authority is not entitled to claim immunity on the grounds of sovereignty or other similar grounds (including, without limitation, governmental immunity) with respect to itself or its revenues (irrespective of their use or intended use) from (i) any action, suit or other proceeding arising under or relating to this Agreement or any other Related Document, (ii) relief by way of injunction, order for specific performance or writ of mandamus or for recovery of property or (iii) execution or enforcement of any judgment to which it or its revenues might otherwise be made subject in any action, suit or proceeding relating to this Agreement or any other Related Document, and no such immunity (whether or not claimed) may be attributed to the Authority or its revenues.
(h) Security for the Obligations. To secure the obligations of the Authority hereunder, the Authority has assigned and granted a first priority, perfected security interest in all of its rights, title and interest in the Installment Sale Agreement, together with the Installment Payments thereunder, to the Lender.
(i) Information. All information supplied and statements and representations made to the Lender by an authorized Person on behalf of the Authority in any financial, credit or accounting statement, application for credit or other statement or document furnished to the Lender in connection with this Agreement, whether prior to, contemporaneously with or subsequent to the execution hereof, and any certificate, document, schedule or other writing furnished to the Lender pursuant to this Agreement or in response to a request made by the Lender pursuant to this Agreement, are and will be, when furnished in all material respects true, complete, correct, valid, genuine and what they purport or are represented to be.
(j) Incorporation of Representations and Warranties by Reference. The Authority hereby makes to the Lender the same representations and warranties made by the Authority in each Related Document to which it is a party, which representations and warranties, as well as the related defined terms contained therein, are hereby incorporated by reference for the benefit of the Lender with the same effect as if each and every such representation and warranty and defined term were set forth herein in its entirety. No amendment to such representations and warranties or defined terms made pursuant to any Related Document shall be effective to amend such representations and warranties and defined terms as incorporated by reference herein without the prior written consent of the Lender.
(k) Regulation U. The Authority is not entering into this Agreement and the transactions contemplated hereby for the purpose of purchasing or carrying Margin Stock as defined in Regulation U of the Board of Governors of the Federal Reserve System. (l) Usury. Assuming that the Lender is an exempted class of persons within the meaning of Article 15 of the California Constitution, the terms of this Agreement and the Loan Documents regarding the calculation and payment of interest and fees do not violate any applicable usury laws of the State of California.
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(m) No Proposed Legal Changes. As of the Amendment and Restatement Date, except as previously disclosed in writing to the Lender, to the knowledge of the Authority’s Treasurer since the Closing Date no amendment to the Constitution of the State of California or any published administrative interpretation of the Constitution of the State of California and no law has been enacted and no final and non-appealable judicial decision interpreting any of the foregoing, the effect of which could reasonably be expected to have a Material Adverse Effect.
(n) Anti-Terrorism Representations.
(i) The Authority is not in violation of any laws relating to terrorism or money laundering (“Anti-Terrorism Laws”), including Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001 (the “Executive Order”), and the Patriot Act;
(ii) The Authority is not any of the following:
(A) a Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;
(B) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;
(C) a Person with which the Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law; (D) a Person that commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order; or (E) a Person that is named as a “specially designated national and blocked person” on the most current list published by the Office of Foreign Asset Control (“OFAC”) or any list of Persons issued by OFAC pursuant to the Executive Order at its official website or any replacement website or other replacement official publication of such list; (o) Compliance with Applicable Law. The Authority is incompliance in all material respects with the requirements of all applicable law, including all governmental approvals, except in such instances in which (i) such requirement of applicable law is being contested in good faith by appropriate proceedings diligently conducted by or on behalf of the Authority or (ii) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.
(p) Employee Benefit Plans. The Authority does not maintain or contribute to, and has not maintained or contributed to, an employee pension benefit plan that is subject to Title IV of ERISA.
(q) Anti-Corruption Laws; Sanctions. The Authority and its officers and Packet Pg. 579 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -37-
employees and to the knowledge of the Authority, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects.
Neither the Authority nor to the knowledge of the Authority nor any of its directors, officers or employees is a Sanctioned Person. No Loan, use of the proceeds of any Loan or other transactions contemplated hereby will violate Anti-Corruption Laws or applicable Sanctions. Neither the making of the Loans hereunder nor the use of the proceeds thereof will violate the Patriot Act, the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto or successor statute thereto. The Authority is in compliance in all material respects with the Patriot Act.
Section 4.02. Representations and Warranties of the City. The City represents and warrants that:
(a) Organization and Powers. The City (a) is a municipal corporation duly organized and existing under the Constitution and laws of the State of California, (b) has all powers and all material governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted, (c) has all required power and authority to execute, deliver and perform its obligations under this Agreement and the Related Documents to which it is a party and (d) is licensed or qualified to do business in each jurisdiction where the ownership of property or the conduct of its business requires such qualifications.
(b) Authorization, Contravention. The adoption, execution, delivery and performance by the City of the Related Documents to which it is a party are within the City’s power and authority, have been duly authorized by all necessary action by the City and do not contravene, or result in the violation of or constitute a default under, any provision of the Constitution of the State of California or any applicable law or regulation, or any order, rule or regulation of any court, governmental agency or instrumentality or any agreement, resolution or instrument to which the City is a party or by which it or any of its property is bound.
(c) Governmental Consent or Approval. No authorization, consent, approval, permit, license, exemption of or filing or registration with, any court or governmental department, commission, board, bureau, agency or instrumentality is or will be necessary for the valid execution, delivery or performance by the City of the Related Documents to which it is a party except such consents, authorizations, orders and approvals (copies of which have been furnished to the Lender) as have been obtained, were validly issued and are in full force and effect.
(d) Binding Effect. Each of the Loan Documents to which the City is a party has been duly executed and delivered by or on behalf of the City. Each of the Related Documents to which the City is a party constitute valid and binding obligations of the City enforceable in accordance with their respective terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, or similar laws affecting creditors’ Packet Pg. 580 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -38-
rights generally, (ii) general principles of equity, (iii) the exercise of judicial discretion in appropriate cases, and (iv) the limitations on legal remedies against cities in the State of California.
(e) Litigation. On the Amendment and Restatement Date, except as disclosed in writing to the Lender prior to the Amendment and Restatement Date, there are no actions, suits or proceedings pending with service of process accomplished or, to the best of the knowledge of the City, threatened in writing, against or affecting the City or relating to the Related Documents, in any court or before or by any governmental department, agency or instrumentality in which there is a reasonable possibility of any adverse decision which could have a Material Adverse Effect (together with the litigation described in Section 4.01(e), “Material Litigation”).
(f) Compliance; No Default. No “event of default” specified in any of the Related Documents to which the City is a party and no event which, with the giving of notice or lapse of time or both would become such an event of default, has occurred and is continuing.
(g) Immunity. The City is not entitled to claim immunity on the grounds of sovereignty or other similar grounds (including, without limitation, governmental immunity) with respect to itself or the Net Revenues (irrespective of their use or intended use) from (i) any action, suit or other proceeding arising under or relating to this Agreement or any other Related Document, (ii) relief by way of injunction, order for specific performance or writ of mandamus or for recovery of property or (iii) execution or enforcement of any judgment to which it or its revenues might otherwise be made subject in any action, suit or proceeding relating to this Agreement or any other Related Document, and no such immunity (whether or not claimed) may be attributed to the City. (h) Security for the Obligations. The Installment Sale Agreement and the Installment Payments owing thereunder are secured by a pledge of and Lien on Net Revenues, subject only to the Lien on Net Revenues securing amounts owed under the Senior Lien Obligations.
(i) Environmental Laws. As of the Amendment and Restatement Date, except as disclosed in writing to the Lender prior to the Amendment and Restatement Date, the City has not received notice to the effect that its operations are not in compliance with any of the requirements of applicable Environmental Laws, or are the subject of any governmental investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Materials into the environment, which noncompliance or remedial action would have a Material Adverse Effect.
(j) Financial Information. The balance sheet of the City as at June 30, 2022, and the related statement of revenues, expenses and changes in net assets and statement of cash flows for the Fiscal Year then ended, copies of all of which have been delivered to the Lender, fairly present the financial position of the City at such date and the results of its operations and changes in financial position for the Fiscal Year then ended, in conformity with generally accepted accounting principles consistently applied (except as stated Packet Pg. 581 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -39-
therein). As of the Amendment and Restatement Date, since the date of such financial statements, except as disclosed to the Lender prior to the Amendment and Restatement Date, there has been no Material Adverse Change.
(k) Information. All information supplied and statements and representations made to the Lender by an authorized Person on behalf of the City in any financial, credit or accounting statement, application for credit or other statement or document furnished to the Lender in connection with this Agreement, whether prior to, contemporaneously with or subsequent to the execution hereof, and any certificate, document, schedule or other writing furnished to the Lender pursuant to this Agreement or in response to a request made by the Lender pursuant to this Agreement, are and will be, when furnished in all material respects true, complete, correct, valid, genuine and what they purport or are represented to be.
(l) Incorporation of Representations and Warranties by Reference. The City hereby makes to the Lender the same representations and warranties made by the City in each Related Document to which it is a party, which representations and warranties, as well as the related defined terms contained therein, are hereby incorporated by reference for the benefit of the Lender with the same effect as if each and every such representation and warranty and defined term were set forth herein in its entirety. No amendment to such representations and warranties or defined terms made pursuant to any Related Document shall be effective to amend such representations and warranties and defined terms as incorporated by reference herein without the prior written consent of the Lender. (m) Regulation U. The City is not entering into this Agreement and the transactions contemplated hereby for the purpose of purchasing or carrying margin stock as defined in Regulation U of the Board of Governors of the Federal Reserve System. (n) Usury. Assuming that the Lender is an exempted class of persons within the meaning of Article 15 of the California Constitution, the terms of this Agreement and the Loan Documents regarding the calculation and payment of interest and fees do not violate any applicable usury laws of the State of California. (o) No Proposed Legal Changes. As of the Amendment and Restatement Date, except as previously disclosed in writing to the Lender, to the knowledge of the City’s Finance Director since the Amendment and Restatement Date no amendment to the Constitution of the State of California or any published administrative interpretation of the Constitution of the State of California and no law has been enacted and no final and non-appealable judicial decision interpreting any of the foregoing, the effect of which could reasonably be expected to have a Material Adverse Effect. (p) Anti-Terrorism Representations.
(i) The City is not in violation of any Anti-Terrorism Laws; (ii) The City is not any of the following:
(A) a Person that is listed in the annex to, or is otherwise subject Packet Pg. 582 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -40-
to the provisions of, the Executive Order;
(B) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;
(C) a Person with which the Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law; (D) a Person that commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order; or (E) a Person that is named as a “specially designated national and blocked person” on the most current list published by the OFAC or any list of Persons issued by OF AC pursuant to the Executive Order at its official website or any replacement website or other replacement official publication of such list;
(q) Compliance with Applicable Law. The City in compliance in all material respects with the requirements of all applicable law, including all governmental approvals, except in such instances in which (i) such requirement of applicable law is being contested in good faith by appropriate proceedings diligently conducted by or on behalf of the City or (ii) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.
(r) Insurance. The City currently maintains insurance with respect to the Electric System of such type and in such amounts or in excess of such amounts as are customarily carried by, and insures against such risks as are customarily insured against by, Persons and projects of like type, size and character.
(s) Employee Benefit Plans. The City does not maintain or contribute to, and has not maintained or contributed to, an employee pension benefit plan that is subject to Title IV or ERISA.
(t) Anti-Corruption Laws; Sanctions. The City and its officers and employees and to the knowledge of the City, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. Neither the City nor to the knowledge of the City nor any of its directors, officers or employees is a Sanctioned Person. No Loan, use of the proceeds of any Loan or other transactions contemplated hereby will violate Anti-Corruption Laws or applicable Sanctions. Neither the making of the Loans hereunder nor the use of the proceeds thereof will violate the Patriot Act, the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto or successor statute thereto. The City is in compliance in all material respects with the Patriot Act.
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ARTICLE V
COVENANTS OF THE AUTHORITY
Section 5.01. Covenants of the Authority. The Authority covenants and agrees with the Lender that it will do the following so long as any amounts may be drawn hereunder and for so long as any amounts are owing to the Lender hereunder or under the Revolving Notes, unless the Lender shall otherwise consent in writing:
(a) Information. The Authority covenants and agrees that, at all times from and after the Original Closing Date until the Maturity Date and until payment in full of all amounts due and owing to the Lender hereunder, the Authority will deliver to the Lender:
(i) Amendments. Promptly after the adoption thereof, copies of any amendments of or supplements to any of the Loan Documents. (ii) Other Information. Such other information regarding the Authority as the Lender may reasonably request.
(b) Notices.
(i) Notice of Default. The Authority shall provide to the Lender prompt notice by telephone, promptly confirmed in writing, of any Default or Event of Default.
(ii) Notice of Material Adverse Change, Material Adverse Effect and Taxable Date. The Authority shall provide to the Lender in writing, promptly upon learning thereof, notice of any event that could reasonably be expected to result in a Material Adverse Change, any Taxable Date and any event which could reasonably be expected to have a Material Adverse Effect or could reasonably be expected to cause a Taxable Date to occur.
(iii) Litigation and other Notices. The Authority shall provide to the Lender in writing, promptly upon learning thereof, notice of any criminal investigation or proceeding by a Governmental Authority involving the criminal conduct of the Authority or the criminal conduct of any officer or managerial employee of the Authority related to the official duties of such officer or managerial employee.
(c) No Amendment of Loan Documents. The Authority will not permit or consent to any amendment to or modification, waiver, or termination of any of the Loan Documents without the prior written consent of the Bank. (d) Related Obligations and Incorporation of Covenants. The covenants of the Authority set forth in the Loan Documents to which it is a party, as well as related defined terms contained therein, are hereby incorporated by reference herein with the same effect as if each and every such provision were set forth herein in its entirety for the benefit of the Packet Pg. 584 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -42-
Lender and shall be enforceable by the Lender against the Authority. All such incorporated covenants shall be in addition to the express covenants contained herein and shall not be limited by the express covenants contained herein nor shall such incorporated covenants be a limitation on the express covenants contained herein. To the extent that any such incorporated provision permits any Person to waive compliance with or consent to such provision or requires that a document, opinion, report or other instrument or any event or condition be acceptable or satisfactory to any Person, for purposes of this Agreement, such compliance shall be waived, or such provision shall be consented to, only if it is waived or consented to, as the case may be, by the Lender and such document, opinion, report or other instrument shall be acceptable or satisfactory only if acceptable or satisfactory to the Lender. No amendment to such covenants (or the defined terms relating thereto) made pursuant to the Loan Documents shall be effective to amend such incorporated covenants without the written consent of the Lender. Notwithstanding the termination or expiration of any Related Document, the Authority shall, unless such Related Document has terminated or expired in accordance with its terms and has been replaced by a new Related Document, continue to observe the covenants therein contained for the benefit of the Lender until the termination of this Agreement.
(e) Taxes and Liabilities. The Authority will pay or cause to be paid and discharged (a) all its indebtedness and obligations promptly and in accordance with their terms to the extent that such failure to pay or discharge would adversely affect the rights of the Lender hereunder or under the Loan Documents or the ability of the Authority to perform its obligations under the Revolving Notes or this Agreement and (b) promptly all taxes, assessments and governmental charges or levies imposed upon it or upon its income and profits, or upon any of its property, real, personal or mixed, or upon any part thereof, in each case before the same shall become in default which, if not paid, would likely have a Material Adverse Effect.
(f) Further Assurances. The Authority will at any and all times, insofar as it may be authorized so to do by law, pass, make, do, execute, acknowledge and deliver all and every such further resolutions, acts, deeds, conveyances, assignments, recordings, filings, transfers and assurances as may be necessary or, in the reasonable judgment of the Lender, desirable for the better assuring, conveying, granting, assigning, and confirming all and singular the rights, revenues, and other funds hereby pledged or assigned to the payment of the Note, or intended so to be, of which the Authority may become bound to pledge or assign. From time to time hereafter, the Authority will execute and deliver such additional instruments, certificates or documents, and will take all such actions as the Lender may reasonably request for the purposes of implementing or effectuating the provisions of this Agreement and each of the other Loan Documents or for the purpose of more fully perfecting or renewing the Lender’s rights with respect to any rights, properties or assets subject to such documents pursuant hereto or thereto. (g) Most Favored Lender. From and after the Original Closing Date, in the event that the City or the Authority has entered or shall enter into or otherwise consent to any agreement or instrument relating to the issuance of Debt payable from or secured by Net Revenues on a parity with the Loans (or any amendment, supplement or modification thereto) (each a “Relevant Agreement”) under which any Person undertakes to make loans, Packet Pg. 585 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -43-
to refinance or restructure existing Debt payable from or secured by Net Revenues on a parity with the Loans or to extend credit or liquidity to the City or the Authority or pursuant to which the City or Authority and a Person agree to an Interest Rate Swap Agreement payable from or secured by Net Revenues on a parity with the Loans or other similar arrangement, which Relevant Agreement (i) provides such Person with a covenant, provision or agreement which is more restrictive, as to the City or the Authority, (ii) provides for additional events of default, or (iii) gives or grants greater rights or remedies to such Person (each, a “Favored Covenant”) than, in the case of (i), are undertaken by the City or the Authority herein or, in the case of (ii) and (iii), are given or granted to the Lender herein, then each such Favored Covenant shall automatically be deemed to be incorporated into this Agreement and the Lender shall have the benefits of each such Favored Covenant as if specifically set forth in this Agreement for the duration of such Relevant Agreement. The Authority shall give the Lender notice and a copy of any Relevant Agreement prior to entering into such Relevant Agreement. If necessary, the City and the Authority shall promptly enter into an amendment to this Agreement to include the Favored Covenant; provided that the Lender shall maintain the benefit of such Favored Covenant even if the City and the Authority fail to provide such amendment. The Authority hereby represents and warrants that on the Amendment and Restatement Date it is not party to (and, for the period from and including the Original Closing Date to and including the Amendment and Restatement Date, has not been a party to) a Relevant Agreement that contains more restrictive covenants than those contained in this Agreement.
(h) Maintenance of Books and Records. The Authority shall keep proper books of record and account in which full, true and correct entries will be made of all dealings or transactions in relation to its business and activities related to the Installment Sale Agreement.
(i) Exempt Status. The Authority shall not take any action or omit to take any action that, if taken or omitted, would adversely affect the excludability of interest on the Tax-Exempt Note from the gross income of the Lender thereof for purposes of federal income taxation under the Code.
(j) Licenses, Permits, Etc. All authorizations, approvals, licenses, permits, consents and orders of any governmental authority, board, agency or commission having jurisdiction in the matter which are required for the due authorization of, which would constitute a condition precedent to or the absence of which would adversely affect the due performance by the Authority of its obligations hereunder and under the other Loan Documents to which it is a party have been and shall at all times in all material respects be duly maintained and complied with by the Authority.
(k) Laws and Contracts. The Authority shall do all things necessary to maintain and comply with all necessary authorizations, approvals, consents and rights material for the conduct of its business as it is presently being conducted and the ownership and operations of its facilities as they are presently being operated and comply in all material respects with all present and future laws (including Environmental Laws, Anti-Corruption Laws and applicable Sanctions), statutes, rules, regulations, codes, Packet Pg. 586 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -44-
ordinances, orders, writs, judgments, decrees, awards, injunctions, restrictive covenants and requirements binding upon or applicable to it, its assets or its operations to the extent that a failure to so maintain or comply would materially and adversely affect (in the reasonable opinion of the Lender) the rights of the Lender hereunder or the ability of the Authority to perform its obligations under the Revolving Notes or this Agreement. The Authority shall comply in all material respects with any credit agreement, indenture, mortgage, agreement or other instrument to which it is a party or otherwise subject to the extent that a failure to comply would materially and adversely affect (in the reasonable opinion of the Lender) the rights of the Lender hereunder or the ability of the Authority to perform its obligations under the Revolving Notes or this Agreement. The Authority will promptly furnish copies of all default notices under any such laws and any outstanding contracts or agreements, a default under which would likely have a Material Adverse Effect.
(l) Existence. The Authority shall maintain its existence. (m) Liens. The Authority shall not cause or permit there to be any Lien on its rights under the Installment Sale Agreement except for the Lien in favor of the Lender.
The Authority shall not assign or transfer any of its rights under the Installment Sale Agreement except to the Lender.
(n) Filing of Agreement. In the event that the Authority delivers this Agreement to the Municipal Securities Rulemaking Board, for filing with EMMA, the filed copy of this Agreement shall be redacted in a manner satisfactory to the Lender. (o) Immunity. The Authority irrevocably agrees that it will not assert or claim any immunity on the grounds of sovereignty or other similar grounds (including, without limitation, governmental immunity) from (i) any action, suit or other proceeding arising under or relating to this Agreement or any other Related Document, (ii) relief by way of injunction, order for specific performance or writ of mandamus or (iii) execution or enforcement of any judgment to which it might otherwise be entitled in any such action, suit or other proceeding, and the Authority hereby irrevocably waives, to the fullest extent permitted by applicable law all such immunity.
(p) Interest Rate Swap Agreements. The Authority shall at all times require that any termination fees payable in connection with any Interest Rate Swap Agreement entered into by the Authority and payable from and secured by payment of Authority Revenues, shall be subordinate to the payment of the Revolving Notes and the Obligations hereunder. The Authority shall not provide any collateral to support the obligations of the Authority under any Interest Rate Swap Agreement entered into by the Authority and payable solely from Authority Revenues, other than a Lien on Authority Revenues. Except as set forth in the first sentence of this Section, the Authority shall at all times require that any Lien on Authority Revenues securing any Interest Rate Swap Agreement entered into by the Authority and payable from and secured by Authority Revenues, be on a parity with the Lien securing the Debt to which such Interest Rate Swap Agreement relates. (q) No Bond Rating; DTC; Offering Document; CUSIP. The Notes shall not be Packet Pg. 587 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -45-
(i) assigned a specific rating by any Rating Agency, (ii) registered with The Depository Trust Company or any other securities depository, (iii) issued pursuant to any type of official statement, private placement memorandum or other offering document, (iv) assigned a CUSIP number by Standard & Poor’s CUSIP Service Bureau or (v) placed or offered by a broker-dealer in the capacity of an underwriter or a placement agent. (r) Use of Proceeds. The Authority shall not use or allow to be used, and its directors, officers, employees and agents shall not use or allow to be used, the proceeds of any of the Loans (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws or (ii) in any manner that would result in the violation of any applicable Sanctions.
Section 5.02. Covenants of the City. The City covenants and agrees with the Lender that it will do the following so long as any amounts may be drawn hereunder and for so long as any amounts are owing to the Lender hereunder or under the Revolving Notes, unless the Lender shall otherwise consent in writing:
(a) Information. The City covenants and agrees that, at all times from and after the Original Closing Date until the Maturity Date and until payment in full of all amounts due and owing to the Lender hereunder, the City will deliver to the Lender:
(i) as soon as available and in any event within 270 days after the end of each Fiscal Year of the City, (A) a copy of the annual audit report of the City, certified to the City as having been prepared in accordance with generally accepted accounting principles consistently applied by independent certified public accountants of recognized standing, including a balance sheet of the City as of the end of such Fiscal Year and related statement of revenues, expenses and changes in net assets and statement of cash flows for the Fiscal Year ended and (B) a letter from a City Representative addressed to the Lender in the form of Exhibit I stating that no Default or Event of Default has come to his or her attention which was continuing at the end of such Fiscal Year or on the date of such letter, or, if such Default or Event of Default has come to such officer’s attention and was continuing at the end of such Fiscal Year or on the date of such letter, indicating the nature of such Default or Event of Default and the action which the City proposes to take with respect thereto.
(ii) as soon as practicable and in any event within 60 days after the end of the first three quarters of the Electric System for each Fiscal Year, the unaudited financial report of the Electric System as of the end of such fiscal quarter, which includes information as to actual financial results compared to results contemplated by an annual budget, prepared from the books and records of the Electric System on a consistent basis;
(iii) in connection with the delivery of the financial statements set forth in paragraph (i) of this Section 5.02(a), a certificate of a City Representative (i) to Packet Pg. 588 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -46-
the effect that as of the date of such certificate no Default or Event of Default has occurred, or (ii) if a Default or Event of Default has occurred specifying the nature of such Default or Event of Default, the period of its existence, and the action which the City is taking or proposes to take with respect thereto unless such Default or Event of Default has previously been reported pursuant to Section 5.02(b)(i) below, and no change in the status of such Default or Event of Default has occurred;
(iv) Budget. As soon as available, the annual capital and operating budgets of the Electric System for such upcoming Fiscal Year. Additionally, promptly after the adoption thereof, any amendments to the annual operating budget that could reasonably be expected to result in a Material Adverse Change. (v) Amendments. Promptly after the adoption thereof, copies of any amendments of or supplements to any of the Related Documents. (vi) Material Event Notices. Immediately following any dissemination, distribution or provision thereof to any Person, a copy of any Material Event Notice related to Parity Obligations disseminated, distributed or provided by the City in satisfaction of or as may be required by the provisions of Rule 15c2-12 promulgated pursuant to the Securities Exchange Act of 1934, as amended (17 C.F.R. Sec. 240 15c2-12), or any successor or similar legal requirement. (vii) EMMA Filings. Copies of all filings related to Parity Obligations required to be made by the City with EMMA promptly after such filings are made. (b) Notices.
(i) Notice of Default. The City shall provide to the Lender prompt notice by telephone, promptly confirmed in writing, of any Default or Event of Default.
(ii) Notice of Material Adverse Change, Material Adverse Effect and Taxable Date. The City shall provide to the Lender in writing, promptly upon learning thereof, notice of any event that could reasonably be expected to result in a Material Adverse Change, any Taxable Date and any event which could reasonably be expected to have a Material Adverse Effect or could reasonably be expected to cause a Taxable Date to occur.
(iii) Litigation and other Notices. The City shall provide to the Lender in writing, promptly upon learning thereof, notice of:
(c) No Amendment of Related Documents. The City will not permit or consent to any amendment to or modification, waiver, or termination of any of the Loan Documents without the prior written consent of the Bank, nor the City permit or consent to any such amendment, modification, waiver or termination of any of the other Related Packet Pg. 589 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -47-
Documents which would be expected to have a Material Adverse Effect or which adversely affects the rights, interest, security or remedies of the Bank, in each case without the prior written consent of the Bank.
(d) Related Obligations and Incorporation of Covenants. The covenants of the City set forth in the Related Documents to which it is a party, as well as related defined terms contained therein, are hereby incorporated by reference herein with the same effect as if each and every such provision were set forth herein in its entirety for the benefit of the Lender and shall be enforceable by the Lender against the City. All such incorporated covenants shall be in addition to the express covenants contained herein and shall not be limited by the express covenants contained herein nor shall such incorporated covenants be a limitation on the express covenants contained herein. To the extent that any such incorporated provision permits any Person to waive compliance with or consent to such provision or requires that a document, opinion, report or other instrument or any event or condition be acceptable or satisfactory to any Person, for purposes of this Agreement, such compliance shall be waived, or such provision shall be consented to, only if it is waived or consented to, as the case may be, by the Lender and such document, opinion, report or other instrument shall be acceptable or satisfactory only if acceptable or satisfactory to the Lender. No amendment to such covenants (or the defined terms relating thereto) made pursuant to the Related Documents shall be effective to amend such incorporated covenants without the written consent of the Lender. Notwithstanding the termination or expiration of any Related Document, the City shall, unless such Related Document has terminated or expired in accordance with its terms and has been replaced by a new Related Document, continue to observe the covenants therein contained for the benefit of the Lender until the termination of this Agreement.
(e) Taxes and Liabilities. The City will pay or cause to be paid and discharged (a) all its indebtedness and obligations promptly and in accordance with their terms to the extent that such failure to pay or discharge would adversely affect the rights of the Lender hereunder or under the Related Documents or the ability of the City to perform its obligations under this Agreement or the Related Documents to which it is a party and (b) promptly all taxes, assessments and governmental charges or levies imposed upon it or upon its income and profits, or upon any of its property, real, personal or mixed, or upon any part thereof, in each case before the same shall become in default which, if not paid, would likely result in a Material Adverse Effect.
(f) Further Assurances. The City will at any and all times, insofar as it may be authorized so to do by law, pass, make, do, execute, acknowledge and deliver all and every such further resolutions, acts, deeds, conveyances, assignments, recordings, filings, transfers and assurances as may be necessary or, in the reasonable judgment of the Lender, desirable for the better assuring, conveying, granting, assigning, and confirming all and singular the rights, revenues, and other fonds hereby pledged or assigned to the payment of the Revolving Notes, or intended so to be, of which the City may become bound to pledge or assign. From time to time hereafter, the City will execute and deliver such additional instruments, certificates or documents, and will take all such actions as the Lender may reasonably request for the purposes of implementing or effectuating the provisions of this Packet Pg. 590 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -48-
Agreement and each of the other Related Documents or for the purpose of more fully perfecting or renewing the Lender’s rights with respect to any rights, properties or assets subject to such documents pursuant hereto or thereto.
(g) Most Favored Lender. From and after the Original Closing Date, in the event that the City or the Authority has entered or shall enter into or otherwise consent to any agreement or instrument relating to the issuance of Debt payable from or secured by Net Revenues on a parity with the Loans (or any amendment, supplement or modification thereto) (each a “Relevant Agreement”) under which any Person undertakes to make loans, to refinance or restructure existing Debt payable from or secured by Net Revenues on a parity with the Loans or to extend credit or liquidity to the City or the Authority or pursuant to which the City or Authority and a Person agree to an Interest Rate Swap Agreement payable from or secured by Net Revenues on a Parity with the Loans or other similar arrangement, which Relevant Agreement (i) provides such Person with a covenant, provision or agreement which is more restrictive, as to the City or the Authority, (ii) provides for additional events of default, or (iii) gives or grants greater rights or remedies to such Person (each, a “Favored Covenant”) than, in the case of (i), are undertaken by the City or the Authority herein or, in the case of (ii) and (iii), are given or granted to the Lender herein, then each such Favored Covenant shall automatically be deemed to be incorporated into this Agreement and the Lender shall have the benefits of each such Favored Covenant as if specifically set forth in this Agreement for the duration of such Relevant Agreement. The City shall give the Lender notice and a copy of any Relevant Agreement prior to entering into such Relevant Agreement. If necessary, the City and the Authority shall promptly enter into an amendment to this Agreement to include the Favored Covenant; provided that the Lender shall maintain the benefit of such Favored Covenant even if the City and the Authority fail to provide such amendment. The City hereby represents and warrants that on the Amendment and Restatement Date it is not party to (and, for the period from and including the Original Closing Date to and including the Amendment and Restatement Date, has not been a party to) a Relevant Agreement that contains more restrictive covenants than those contained in this Agreement. (h) Maintenance of Books and Records. The City shall keep proper books of record and account in which full, true and correct entries will be made of all dealings or transactions in relation to its business and activities related to the Electric System and the Net Revenues.
(i) Reserved.
(j) Exempt Status. The City shall not take any action or omit to take any action that, if taken or omitted, would adversely affect the excludability of interest on the Tax-Exempt Notes from the gross income of the Lender thereof for purposes of federal income taxation under the Code.
(k) Licenses, Permits, Etc. All authorizations, approvals, licenses, permits, consents and orders of any governmental authority, board, agency or commission having jurisdiction in the matter which are required for the due authorization of, which would Packet Pg. 591 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -49-
constitute a condition precedent to or the absence of which would adversely affect the due performance by the City of its obligations hereunder and under the other Related Documents to which it is a party have been and shall at all times in all material respects be duly maintained and complied with by the City.
(l) Laws and Contracts. The City shall do all things necessary to maintain and comply with all necessary authorizations, approvals, consents and rights material for the conduct of its business as it is presently being conducted and the ownership and operations of its facilities as they are presently being operated and comply in all material respects with all present and future laws (including Environmental Laws, Anti-Corruption Laws and applicable Sanctions), statutes, rules, regulations, codes, ordinances, orders, writs, judgments, decrees, awards, injunctions, restrictive covenants and requirements binding upon or applicable to it, its assets or its operations to the extent that a failure to so maintain or comply would materially and adversely affect (in the reasonable opinion of the Lender) the rights of the Lender hereunder or the ability of the City to perform its obligations under this Agreement. The City shall comply in all material respects with any credit agreement, indenture, mortgage, agreement or other instrument to which it is a party or otherwise subject to the extent that a failure to comply would materially and adversely affect (in the reasonable opinion of the Lender) the rights of the Lender hereunder or the ability of the City to perform its obligations under this Agreement. The City will promptly furnish copies of all default notices under any such laws and any outstanding contracts or agreements, a default under which would likely result in a Material Adverse Effect. (m) Existence. The City shall maintain its existence.
(n) Liens. The City shall not cause or permit there to be any Lien on the Net Revenues except for the Liens that secure the payment of Senior Lien Obligations and/or Parity Obligations.
(o) Restrictions on Use of Note Proceeds. The Advances will be applied by the Authority to the purposes of financing or refinancing the eligible costs of Projects. (p) Reserved.
(q) Reserved.
(r) Filing of Agreement. In the event that the City delivers this Agreement to the Municipal Securities Rulemaking Board, for filing with EMMA, the filed copy of this Agreement shall be redacted in a manner satisfactory to the Lender. (s) Insurance. The City will at all times maintain insurance with respect to the Electric System of such type, and in such amounts or in excess of such amounts as are customarily carried by, and insuring against such risks as are customarily insured against by, Persons and projects of like type, size and character. (t) Rating Maintenance. The City shall cause at least one Rating Agency to Packet Pg. 592 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -50-
assign the Obligor Rating until such time as all indebtedness secured by a lien on or payable from Net Revenues that has previously been assigned a rating by a Rating Agency is no longer outstanding.
(u) Rates. The City will at all times maintain rates and charges for the services furnished, provided and supplied by the Electric System which shall produce Revenues in each Fiscal Year from the Electric System sufficient:
(i) to pay the Maintenance and Operation Costs;
(ii) to produce Net Revenues of the Electric System, sufficient (x) to pay an amount equal to 110% of the principal of and interest on all Senior Lien Obligations for each Fiscal Year, and (y) to pay the amounts required to be deposited in any reserve or contingency fund created for the payment and security of any and all Senior Lien Obligations;
(iii) to produce Net Revenues of the Electric System (after satisfaction of the amounts required to be paid in clause (ii) above), equal to at least 100% of the maximum annual debt service for all Parity Obligations payable in any such Fiscal Year; and
(iv) to pay any other legal debt or obligation of the Electric System as and when the same shall become due.
For purposes of this Section 5.02(u), the foregoing clause (iii), the following assumptions shall apply: the Parity Obligations represented by the Loans shall be deemed to be (i) outstanding in an aggregate principal amount of $25,000,000 and amortized over a twenty (20) year period on the basis of level debt service, and (ii) bear interest at an assumed interest rate of 5% per annum.
(v) Additional Debt. The City may at any time incur or issue additional Senior Lien Obligations or Parity Obligations, but only if (i) no Default or Event of Default has occurred and is continuing hereunder and (ii) the City shall have delivered to the Lender written evidence demonstrating that, upon the occurrence of such Debt based upon the Net Revenues for the prior Fiscal Year and without any modification of its then current rates and charges, the City will be in compliance with Section 5.02(u) hereof. (w) Immunity. The City irrevocably agrees that it will not assert or claim any immunity on the grounds of sovereignty or other similar grounds (including, without limitation, governmental immunity) from (i) any action, suit or other proceeding arising under or relating to this Agreement or any other Related Document, (ii) relief by way of injunction, order for specific performance or writ of mandamus or (iii) execution or enforcement of any judgment to which it might otherwise be entitled in any such action, suit or other proceeding, and the City hereby irrevocably waives, to the fullest extent permitted by applicable law, all such immunity.
Packet Pg. 593 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -51-
(x) Capacity. The City shall at all times maintain the legal ability to issue Senior Lien Obligations in an amount equal to the sum of (i) the aggregate principal amount of all Loans outstanding plus (ii) the aggregate amount of accrued interest to maturity on all Revolving Notes plus (iii) any Obligations payable to the Bank hereunder or under any Related Document. Upon written request of the Bank, the City shall deliver a certificate demonstrating the ability of the City to satisfy the requirements of Section
5.02(v) hereof.
(y) No Bond Rating; DTC; Offering Document; CUSIP. The Notes shall not be (i) assigned a specific rating by any Rating Agency, (ii) registered with The Depository Trust Company or any other securities depository, (iii) issued pursuant to any type of official statement, private placement memorandum or other offering document, (iv) assigned a CUSIP number by Standard & Poor’s CUSIP Service Bureau or (v) placed or offered by a broker-dealer in the capacity of an underwriter or a placement agent. (z) Use of Proceeds. The City shall not use or allow to be used, and its directors, officers, employees and agents shall not use or allow to be used, the proceeds of any of the Loans (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws or (ii) in any manner that would result in the violation of any applicable Sanctions.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. Events of Default. The occurrence of any of the following events (whatever the reason for such event and whether voluntary, involuntary, or effected by operation of Law) shall be an “Event of Default” hereunder, unless waived in writing by the Lender:
(a) (i) The Authority shall fail to pay when due any principal or interest on or with respect to any Revolving Note or any Loan or (ii) the Authority or the City shall fail to pay any fees or other amounts payable under any of the Related Documents; (b) The Authority shall fail to perform any term, covenant, condition or provision of Section 5.01(c), (d), (g), (i), (l), (m), (o), or (p) or the City shall fail to perform any term, covenant, condition or provision of 5.02(c), (d), (g), (j), (m), (n), (o), (u), (v) or (w);
(c) Failure of the Authority or the City to observe or perform any of the other covenants, conditions or provisions of any Related Document (other than as specified in subparagraphs (a) and (b) above) and to remedy such default within twenty (20) days after the Authority or the City, as applicable, receives notice of such failure or has actual knowledge of such failure;
Packet Pg. 594 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -52-
(d) Any representation or warranty made or deemed made by or on behalf of the Authority or the City herein, in any Related Document, or in any certificate, financial or other statement furnished by or on behalf of the Authority or the City to the Lender shall prove to have been inaccurate, misleading or incomplete in any material respect when made or deemed to have been made;
(e) Default by the Authority or the City in the payment of any amount when due in respect of any Debt payable from or secured by payment from Net Revenues; or default under any Contract under or pursuant to which Debt payable from or secured by a Lien on Net Revenues on a parity with or senior to the Installment Payments is incurred or issued, and continuance of such default beyond the period of grace, if any, allowed with respect thereto; or default under any Contract under or pursuant to which Debt payable from or secured by a Lien on Net Revenues on a priority that is subordinate to the Installment Payments is incurred or issued, and continuance of such default beyond the period of grace, if any, allowed with respect thereto, which default results in such Debt becoming, or being capable of becoming, immediately due and payable; or the occurrence of any act or omission by the Authority or the City under any Contract under or pursuant to which Debt is incurred or issued which results in such Debt becoming, or being capable of becoming, immediately due and payable (or, with respect to any Interest Rate Swap Agreement payable from or secured by payment from Net Revenues, which results in such Interest Rate Swap Agreement being terminated early or being subject to early termination).
(f) An Event of Insolvency shall occur with respect to the Authority or the City;
(g) (i) Any of the Loan Documents or any material provision of any of the Loan Documents shall at any time, for any reason, cease to be the legal, valid and binding obligation of the City or the Authority, as applicable, or shall cease to be in full force and effect, or shall be declared to be unenforceable, invalid or void, or the validity or enforceability thereof shall be contested by the City or the Authority, or the City or the Authority shall renounce the same or deny that it has any further liability hereunder or thereunder; or
(ii) any provision of the Loan Documents related to (A) the payment of principal of or interest on the Revolving Loans or any Parity Obligation or (B) the validity or enforceability of the pledge of Net Revenues or Authority Revenues shall at any time, for any reason, cease to be the legal, valid and binding obligation of the City or the Authority, as applicable, or shall cease to be in full force and effect, or shall be declared to be unenforceable, invalid or void, or the validity or enforceability thereof shall be contested by the City or the Authority, or the City or the Authority shall renounce the same or deny that it has any further liability hereunder or thereunder
(h) Any party to any of the Related Documents (other than the Lender) breaches an obligation thereunder (beyond any applicable notice and cure period) and such Packet Pg. 595 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -53-
failure is likely to have, in the Lender’s reasonable judgment, a Material Adverse Effect; (i) The entry or filing of one or more final, non-appealable judgments or orders or of any similar decrees or decisions for the payment of money (each, a “Judgment”) which, individually or in the aggregate exceed $10,000,000, shall be rendered against the City or the Authority that is not substantially covered by insurance and enforcement proceedings shall have been initiated by any creditor upon such Judgment, which proceedings are not stayed, vacated, discharged or bonded within sixty (60) calendar days of being initiated;
(j) the City or Authority shall fail to pay when due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) any principal amount of any Debt in an aggregate principal amount of $5,000,000 or greater or any interest or premium thereon, and such failure shall continue beyond any applicable period of grace specified in any underlying indenture, contract or instrument providing for the creation of or concerning such Debt;
(k) The Obligor Rating assigned by any of Moody’s, S&P, or Fitch, if such Rating Agency is providing an Obligor Rating, is reduced for any reason below “Baa1” (or its equivalent) by Moody’s, “BBB+” (or its equivalent) by S&P or “BBB+”(or its equivalent), respectively, by Fitch, or suspended or withdrawn by any such Rating Agency for any credit related reason.
(l) Reserved;
(m) Any “event of default” shall have occurred and be continuing under any Related Document; or
(n) Any Lien created by this Agreement or any of the Loan Documents in favor of the Lender or the Authority, at any time and for any reason (except as expressly permitted to be released by the terms of such governing document) shall not constitute a valid and perfected Lien or shall fail to have the priority required by this Agreement and the other Loan Documents, or the Authority or the City shall so assert in writing.
Section 6.02. Consequences of an Event of Default. If an Event of Default specified in Section 6.01 shall occur, then in addition to any other rights or remedies available to the Lender under any of the other Loan Documents or under Applicable Law, the Lender may exercise any one or more of the following rights and remedies:
(a) (i) accelerate all of the Obligations hereunder whereupon such Obligations shall become immediately due and payable without presentment, demand for payment, protest or notice of nonpayment or dishonor, or other notice of any kind or character, all of which are hereby expressly waived, and an action therefor shall immediately accrue; (ii) terminate its commitment to extend further credit under this Agreement;
Packet Pg. 596 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -54-
(iii) to the extent permitted by law, (i) apply to any court of competent jurisdiction for, and obtain appointment of, a receiver for the property of the City or the Authority, (ii) either personally or by attorney or agent and without bringing any action or proceeding, or by such a receiver, take whatever action at law or in equity may appear necessary or desirable to collect the amounts due and payable under the Loan Documents or to enforce performance or observance of any of the Obligations, whether for specific performance of any agreement or covenant of the City of the Authority or in aid of the execution of any power granted to the Lender in the Loan Documents or as otherwise available at law or in equity; (iv) exercise, or cause to be exercised, any and all remedies as it may have under the Loan Documents and as otherwise available at law and at equity; and
(v) increase the interest rate for all Obligations to the Default Rate. (b) Notwithstanding the provisions of Section 6.02(a)(i), (x) the Lender shall not cause an acceleration of the Obligations as described in Section 6.02(a)(i) until seven (7) days after the occurrence of an Event of Default specified in Section 6.01(a), 6.01(e),
6.01(f), 6.01(g)(ii), 6.01(i), 6.01(j) or 6.01(k)(i) and (y) the Lender shall notify the City or Authority, as applicable, of an acceleration at least one hundred eighty (180) days prior thereto in the case of any Event of Default not specified in the immediately preceding clause (x). Notwithstanding the foregoing sentence of this Section 6.02(b), if (i) (x) an Event of Default under Section 6.01(f) hereof occurs or (y) any other holder or credit enhancer of Debt or any counterparty under any Interest Rate Swap Agreement related thereto causes any such Debt or other obligations of the City or Authority, as applicable, to become immediately due and payable (whether by repurchase, mandatory tender, mandatory redemption, acceleration or otherwise), the Lender may immediately, without notice, avail itself of the remedies set forth in Section 6.02(a)(i) hereof and/or declare or cause to be declared the unpaid principal amount of all outstanding Obligations, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder to be immediately due and payable, and (ii) any other holder or credit enhancer of Debt or any counterparty under any Interest Rate Swap Agreement related thereto has the right to cause such Debt to be immediately due and payable (whether by repurchase, mandatory tender, mandatory redemption, acceleration or otherwise) on a date earlier than, or pursuant to a notice period which is shorter than what is set forth in the first sentence of this Section
6.02(b) in connection with a default related to such Debt, then the Lender shall automatically have such right or shorter notice period, as applicable.
Section 6.03. Remedies Cumulative; Solely for the Benefit of Lender. To the extent permitted by, and subject to the mandatory requirements of, Applicable Law, each and every right, power and remedy specifically given to the Lender in the Loan Documents shall be cumulative, concurrent and nonexclusive and shall be in addition to every other right, power and remedy specifically given or now or hereafter existing at law or in equity, and each and every right, power and remedy (whether specifically given or otherwise existing) may be exercised from time to time and as often and in such order as may be deemed expedient by the Lender, and the exercise or the Packet Pg. 597 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -55-
beginning of the exercise of any right, power or remedy shall not be construed to be a waiver of the right to exercise at the same time or thereafter any other right, power or remedy.
The rights and remedies of the Lender are for the sole and exclusive benefit, use and protection of the Lender, and the Lender is entitled, but shall have no duty or obligation to the City or the Authority or any other Person or otherwise, to exercise or to refrain from exercising any right or remedy reserved to the Lender under any of the Loan Documents.
Section 6.04. Waivers or Omissions. No course of dealing and no delay or failure by the Lender in the exercise of any right, remedy or power or in the pursuit of any remedy shall impair any such right, remedy or power or be construed to be a waiver of any default or to be acquiescence therein on the part of the Lender. No express or implied waiver by the Lender of any Event of Default shall in any way be a waiver of any future or subsequent Event of Default.
Section 6.05. Discontinuance of Proceedings. In case the Lender shall proceed to invoke any right, remedy or recourse permitted under the Loan Documents and shall thereafter elect to discontinue or abandon the same for any reason, the Lender shall have the unqualified right so to do and, in such event, the City, the Authority and the Lender shall be restored to their former positions with respect to the Obligations, the Loan Documents and otherwise, and the rights, remedies, recourse and powers of the Lender hereunder shall continue as if the same had never been invoked.
ARTICLE VII
INDEMNIFICATION
Section 7.01. Indemnification. In addition to any and all rights of reimbursement, indemnification, subrogation or any other rights pursuant hereto or under law or equity, but solely to the extent permitted by Applicable Law, the City and Authority hereby agree to indemnify and hold harmless the Lender and its officers, directors and agents (each, an “Indemnitee”) from and against any and all claims, damages, losses, liabilities, reasonable costs or expenses whatsoever (including reasonable attorneys’ fees) which may incur or which may be claimed against an Indemnitee by any Person or entity whatsoever (collectively, the “Liabilities”) by reason of or in connection with the execution and delivery or transfer of, or payment or failure to pay under, any Loan Document; provided that neither the City nor Authority shall be required to indemnify an Indemnitee for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent, caused by the willful misconduct, bad faith or gross negligence of such Indemnitee. If any proceeding shall be brought or threatened against an Indemnitee as a condition of indemnity hereunder each Indemnitee shall promptly notify the City or the Authority in writing and the City or the Authority shall assume the defense thereof, including the employment of counsel satisfactory to such Indemnitee and the payment of all reasonable costs of litigation.
Notwithstanding the preceding sentence, each Indemnitee shall have the right to employ its own counsel and to determine its own defense of such action in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnitee unless (i) the employment of such counsel shall have been authorized in writing by the Authority, or (ii) neither the City nor Packet Pg. 598 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -56-
Authority, after due notice of the action, shall have employed counsel satisfactory to such Indemnitee to have charge of such defense, in either of which events the reasonable fees and expenses of counsel for such Indemnitee shall be borne by the City or the Authority. The City or the Authority shall not be liable for any settlement of any such action effected without its consent.
Section 7.02. Survival. The obligations of the City and the Authority under this Article VIII shall survive the termination of this Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Patriot Act Notice. The Lender hereby notifies the City and the Authority that pursuant to the requirements of the Patriot Act it is required to obtain, verify and record information that identifies the City and the Authority, which information includes the name and address of the City and the Authority and other information that will allow the Lender to identify the City and the Authority in accordance with the Patriot Act. The City and Authority each hereby agree that it shall promptly provide such information upon request by the Lender.
The City and Authority each hereby agrees (i) that it is not and shall not be listed on the Specially Designated Nationals and Blocked Person List or other similar lists maintained by the Office of Foreign Assets Control (“OFAC”), the Department of the Treasury or included in any Executive Orders, that prohibits or limits the Bank from making any advance or extension of credit to the Authority or the City or from otherwise conducting business with the Authority or the City and (ii) to ensure that the proceeds of the Loans shall not be used to violate any of the foreign asset control regulations of OFAC or any enabling statute or Executive Order relating thereto.
Section 8.02. Further Assurances. From time to time upon the request of the Lender, the City and Authority shall promptly and duly execute, acknowledge and deliver any and all such further instruments and documents as the Lender may in its reasonable discretion deem necessary or desirable to carry out the purpose and intent hereof or to enable the Lender to enforce any of their rights hereunder. At any time, and from time to time, upon reasonable request by the Lender, the City and the Authority will, at the City and the Authority’s expense, correct any defect, error or omission which may be discovered in the form or content of any of the Loan Documents.
Section 8.03. Amendments and Waivers. The Lender, the City and the Authority may from time to time enter into agreements amending, modifying or supplementing the Loan Documents or changing the rights of the Lender or the City or the Authority hereunder or thereunder, and the Lender may from time to time grant waivers or consents to a departure from the due performance of the Obligations of the City and the Authority hereunder or thereunder. Any such agreement, waiver or consent must be in writing and shall be effective only to the extent specifically set forth in such writing.
Section 8.04. Notices. All notices, requests, demands, directions and other communications (collectively “notices”) under the provisions of this Agreement shall be in Packet Pg. 599 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -57-
writing (including facsimile communication), unless otherwise expressly permitted hereunder, and shall be properly addressed and sent by registered or certified mail or by express courier for next Business Day delivery and shall be deemed received as follows: (a) if by registered or certified mail, five (5) days after mailing; (b) if by express courier, on the next Business Day; and (c) if by facsimile, when confirmation of transmission is obtained if prior to 5:00 p.m. local time on a Business Day, and otherwise, on the next Business Day; provided that service of a notice prescribed by any Applicable Law shall be considered complete when the requirements of that Law are met. Notices by electronic mail (e-mail) shall not constitute notice under this Agreement and are only to be used in addition to notice given as prescribed under (a), (b) or (c) of this this this Section 8.04. All notices shall be sent to the applicable party at the following address or in accordance with the last unrevoked written direction from such party to the other party hereto:
If to Authority:
Redding Joint Powers Financing Authority
777 Cypress Avenue
Redding, CA 96001
Attention: Gregory Robinett, Director of Finance
Telephone: (530) 225-4088
E-mail: [email protected]
If to the Lender:
U.S. Bank National Association
3 Bryant Park
1095 Avenue of the Americas, 13th Floor
New York, NY 10036
Attention: Bhalachandra Mehendale
Facsimile: (917) 256-2830
Telephone: (917) 326-3970
Email: [email protected]
With a copy to:
U.S. Bank National Association
US Bank Tower Cincinnati
425 Walnut St
Cincinnati, OH 45202
Attention: Cameron Parker
Telephone: (513) 449-7186
Email: [email protected]
If to the Lender for Advances:
U.S. Bank National Association
3 Bryant Park
Packet Pg. 600 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -58-
1095 Avenue of the Americas, 13th Floor
New York, NY 10036
Attention: Bhalachandra Mehendale
Facsimile: (917) 256-2830
Telephone: (917) 326-3970
Email: [email protected]
With a copy to:
U.S. Bank National Association
US Bank Tower Cincinnati
425 Walnut St
Cincinnati, OH 45202
Attention: Cameron Parker
Telephone: (513) 449-7186
Email: [email protected]
If to the City:
City of Redding
777 Cypress Avenue
Redding, CA 96001
Attention: Gregory Robinett, City Treasurer
Telephone: (530) 225-4088
E-mail: [email protected]
The Lender may in its sole discretion rely on any notice (including telephone communication or e-mail communication) purportedly made by or on behalf of the City or Authority, but it shall have no duty to accept any notice not given as prescribed in this Section and shall have no duty to verify the identity or authority of the Person giving such notice, unless such actions or omissions would amount to gross negligence or intentional misconduct.
Section 8.05. No Third-Party Rights. Nothing in this Agreement, whether express or implied, shall be construed to give to any Person other than the City, Authority and the Lender any legal or equitable right, remedy or claim under or in respect of this Agreement, which is intended for the sole and exclusive benefit of the parties hereto.
Section 8.06. Severability. The provisions of this Agreement are intended to be severable.
If any provision of this Agreement shall be held invalid or unenforceable in whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the remaining provisions hereof in any jurisdiction.
Section 8.07. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. (a) Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT UNDER, AND Packet Pg. 601 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -59-
TOGETHER WITH ANY DISPUTES OR CONTROVERSIES ARISING OUT OF OR RELATING TO THIS
AGREEMENT, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF CALIFORNIA AND APPLICABLE FEDERAL LAW, WITHOUT REGARD TO CHOICE OF LAW RULES; PROVIDED THAT THE OBLIGATIONS OF THE LENDER HEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCRODANCE WITH THE, THE LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS PROVISIONS (OTHER THAN NEW YORK GENERAL OBLIGATIONS LAWS 5-1401 AND 5-1402).
(b) Consent to Jurisdiction. EACH PARTY HERETO CONSENTS TO AND SUBMITS TO IN
PERSONAM JURISDICTION AND VENUE IN THE STATE OF CALIFORNIA AND IN THE FEDERAL DISTRICT COURTS WHICH ARE LOCATED IN THE STATE OF CALIFORNIA. EACH PARTY ASSERTS THAT IT HAS
PURPOSEFULLY AVAILED ITSELF OF THE BENEFITS OF THE LAWS OF THE STATE OF CALIFORNIA AND
WAIVES ANY OBJECTION TO IN PERSONAM JURISDICTION ON THE GROUNDS OF MINIMUM CONTACTS, WAIVES ANY OBJECTION TO VENUE, AND WAIVES ANY PLEA OF FORUM NON CONVENIENS. THIS
CONSENT TO AND SUBMISSION TO JURISDICTION IS WITH REGARD TO ANY ACTION RELATED TO THIS AGREEMENT.
(c) Waiver of Jury Trial. TO THE EXTENT PERMITTED BY LAW, EACH PARTY HERETO
WAIVES ITS RIGHT TO A JURY TRIAL OF ANY AND ALL CLAIMS OR CAUSES OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS. IT IS HEREBY
ACKNOWLEDGED THAT THE WAIVER OF A JURY TRIAL IS A MATERIAL INDUCEMENT FOR THE LENDER
TO EXTEND CREDIT HEREUNDER AND THAT THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY THE CITY, AUTHORITY AND THE LENDER IS MADE IN RELIANCE UPON SUCH WAIVER. EACH PARTY
HERETO FURTHER WARRANTS AND REPRESENTS THAT SUCH WAIVER HAS BEEN KNOWINGLY AND VOLUNTARILY MADE FOLLOWING CONSULTATION WITH ITS RESPECTIVE LEGAL COUNSEL. IF AND TO
THE EXTENT THAT THE FOREGOING WAIVER OF THE RIGHT TO A JURY TRIAL IS UNENFORCEABLE FOR
ANY REASON IN SUCH FORUM, EACH OF THE PARTIES HERETO HEREBY CONSENTS TO THE
ADJUDICATION OF ALL CLAIMS PURSUANT TO JUDICIAL REFERENCE AS PROVIDED IN CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 638, AND THE JUDICIAL REFEREE SHALL BE EMPOWERED TO HEAR AND DETERMINE ALL ISSUES IN SUCH REFERENCE, WHETHER FACT OR LAW. EACH OF THE
PARTIES HERETO REPRESENTS THAT EACH HAS REVIEWED THIS WAIVER AND CONSENT AND EACH
KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS AND CONSENTS TO JUDICIAL REFERENCE FOLLOWING CONSULTATION WITH LEGAL COUNSEL ON SUCH MATTERS. IN THE EVENT OF
LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT OR TO JUDICIAL REFERENCE UNDER CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 638 AS PROVIDED HEREIN.
Section 8.08. No Advisory or Fiduciary Responsibility. In connection with all aspects of the Transactions (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), each of the City and the Authority acknowledges and agrees that: (a)(i) any arranging, structuring and other services regarding the Loan Documents provided by the Lender are arm’s-length commercial transactions between the City and the Authority and its Affiliates on the one hand, and the Lender on the other hand, (ii) the City and the Authority have each consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (iii) the City and the Authority are each capable of evaluating, and understands and accepts, the terms, risks and conditions of the Transactions; (b)(i) the Lender is Packet Pg. 602 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -60-
and has been acting solely as a principal and has not been, is not, and will not be acting as an advisor (municipal, financial or otherwise), agent or fiduciary for the City, the Authority or any other Person and the Lender has no fiduciary duty with respect to the City or the Authority and (ii) the Lender does not have any obligation to the City or the Authority with respect to the Transactions, except those obligations expressly set forth herein; and (c) the Lender may be engaged in a broad range of transactions that involve interests that differ from those of the City and the Authority, and Lender does not have any obligation to disclose any of such interests to the City or the Authority. To the fullest extent permitted by Applicable Law, each of the City and the Authority hereby waives and releases any claims that it may have against the Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of the Transactions.
Section 8.09. Entire Agreement. The Loan Documents constitute the entire understanding and agreement between the City, the Authority and the Lender with respect to the Transactions, and fully supersede all prior or contemporaneous written or oral understandings, courses of dealing and agreements between the City, the Authority and the Lender with respect to the matters addressed in the Loan Documents. In particular, and without limitation, the Loan Documents supersede any commitment by the Lender to extend credit to the City and the Authority and all such agreements or commitments are merged into the Loan Documents. Except as incorporated in writing into the Loan Documents, there are no representations, understandings, stipulations, agreements or promises, oral or written, with respect to the matters addressed in the Loan Documents.
Section 8.10. Duration. All representations and warranties of the City and the Authority contained herein or made in connection herewith shall survive the making of and shall not be waived by the execution and delivery of the Loan Documents, or any investigation by any party hereto or the approval of any Advances. All covenants and agreements of the City and the Authority contained herein shall continue in full force and effect from and after the Original Closing Date until all Obligations payable to the Lender have been indefeasibly paid in full and fully discharged at which time this Agreement shall terminate; provided, however, that the obligations of the City and/or the Authority, respectively, under Sections 2.03, 2.04, 2.05, 2.06 and
8.01 and under each other provision of any Loan Document granting a right of indemnity or reimbursement in favor of the Lender shall survive the termination of this Agreement.
Section 8.11. Counterparts. This Agreement may be executed in any number of counterparts by the parties hereto each of which, when so executed, shall be deemed an original, but all such counterparts shall constitute but one and the same instrument. Except as provided in Section 3.01 hereof, this Agreement shall become effective when it shall have been executed by the Lender and when the Lender shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement or any other Related Document, or any certificate delivered thereunder, by fax transmission or e-mail transmission (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement or such other Related Document or certificate. Without limiting the foregoing, to the extent a manually executed counterpart is not specifically required to be delivered under the terms of any Related Document, upon the request of any party, such fax transmission or e-mail transmission shall be promptly followed by such Packet Pg. 603 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -61-
manually executed counterpart.
Section 8.12. Successors, Assigns and Participations.
(a) Successors and Assigns Generally. This Agreement is a continuing obligation and shall be binding upon each of the City and the Authority and their respective successors, transferees and assigns and shall inure to the benefit of the holders of the Revolving Notes and their respective permitted successors, transferees and assigns. Neither the City nor the Authority may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Lender. The Lender reserves the right to sell, assign, transfer, negotiate or grant participations in all or any part of, or any interest in, Lender’s rights and benefits under each of the Loan Documents. In connection therewith, the Lender may disclose all documents and information which the Lender now has or may hereafter acquire relating to any credit subject hereto, the Authority or its business, any guarantor hereunder or the business of such guarantor, if any, or any collateral required hereunder. The Lender may at any time and from time to time enter into participation agreements in accordance with the provisions of paragraph (b) of this Section.
The Lender may at any time pledge or assign a security interest subject to the restrictions of paragraph (c) of this Section.
(b) Participations. The Lender shall have the right to grant participations in all or a portion of the Lender’s interest in the Revolving Notes, this Agreement and the other Loan Documents to one or more other banking institutions; provided, however, that (i) no such participation by any such participant shall in any way affect the obligations of the Lender hereunder, (ii) the City and the Authority shall be required to deal only with the Lender, with respect to any matters under this Agreement, the Revolving Notes and the other Loan Documents and no such participant shall be entitled to enforce any provision hereunder against the City and the Authority, and (iii) the Lender provides notice of the grant of any participation hereunder, provided that failure of the Lender to provide such notice shall not constitute a default hereunder and shall not affect the validity of such participation. (c) Certain Pledges. The Lender may at any time pledge or grant a security interest in all or any portion of its rights under the Revolving Notes, this Agreement and the other Loan Documents to secure obligations of the Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank, the United States Treasury ; provided that no such pledge or assignment shall release the Lender from any of its obligations hereunder or substitute any such pledgee or assignee for the Lender as a party hereto.
Section 8.13. No Right of Setoff. Lender shall have no right of setoff against any funds of the Authority or the City.
Section 8.14. Electronic Signatures. The parties agree that the electronic signature of a party to this Agreement shall be as valid as an original signature of such party and shall be effective to bind such party to this Agreement. The parties agree that any electronically signed document (including this Agreement) shall be deemed (a) to be “written” or “in writing,” (b) to have been signed and (c) to constitute a record established and maintained in the ordinary course of business and an original written record when printed from electronic files. Such paper copies or Packet Pg. 604 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -62-
“printouts,” if introduced as evidence in any judicial, arbitral, mediation or administrative proceeding, will be admissible as between the parties to the same extent and under the same conditions as other original business records created and maintained in documentary form. No party shall contest the admissibility of true and accurate copies of electronically signed documents on the basis of the best evidence rule or as not satisfying the business records exception to the hearsay rule. For purposes hereof, “electronic signature” means a manually signed original signature that is then transmitted by electronic means; “transmitted by electronic means” means sent in the form of a facsimile or sent via the internet as a “pdf” (portable document format) or other replicating image attached to an e-mail message; and “electronically signed document” means a document transmitted by electronic means and containing, or to which there is affixed, an electronic signature.
Section 8.19. Existing Credit Agreement. Subject to the satisfaction of the conditions precedent set forth in Section 3.01 hereof, this Agreement shall become effective on the Amendment and Restatement Date and, except as otherwise set forth herein and therein, shall supersede all provisions of the Existing Credit Agreement as of such date, subject to the terms and provisions hereof and the survival provisions thereof. From and after the Amendment and Restatement Date, all outstanding “Obligations” under the Existing Credit Agreement shall be outstanding as Obligations hereunder.
All references made to the Existing Credit Agreement in any Related Document or in any other related instrument or document shall, unless otherwise specified, be deemed to refer to this Agreement. This Agreement shall become effective and amends and restates and supersedes all provisions of the Existing Credit Agreement (other than those that survive the termination thereof) upon the execution of this Agreement by each of the parties hereto and the fulfillment of all conditions precedent hereof but is not intended to be or operate as a novation or an accord and satisfaction of the Existing Credit Agreement or the indebtedness, obligations and liabilities of the Authority or the City evidenced or provided for thereunder.
Notwithstanding anything contained herein, this Agreement is not intended to and does not serve to effect a novation of the “Obligations” pursuant to the Existing Credit Agreement. Instead, it is the express intention of the parties hereto to reaffirm the loans and obligations created under the Existing Credit Agreement and the security therefor. The City and the Authority each acknowledges and confirms that the term “Obligations” as used in the Related Documents (or any other term used therein to describe or refer to the indebtedness, liabilities and obligations of the City and/or the Authority to the Lender) includes, without limitation, the indebtedness, liabilities and obligations of the City and/or the Authority under the Notes to be delivered in connection with this Agreement and under the Existing Credit Agreement, as amended and restated hereby, as the same may be further amended, restated, supplemented or otherwise modified from time to time.
The City and the Authority hereby ratifies and reaffirms all of their respective payment and performance obligations and the security therefor, contingent or otherwise, under each of the Related Documents to which it is a party (after giving effect hereto). [SIGNATURES APPEAR ON THE FOLLOWING PAGE.]
Packet Pg. 605 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Signature Page to Amended and Restated Revolving Credit Agreement IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the date first above written.
CITY OF REDDING
By:____________________________________
Name: _____________________________
Title: _____________________________
APPROVED AS TO FORM:
By: ________________________________
Assistant City Attorney
REDDING JOINT POWERS FINANCING AUTHORITY
By:____________________________________
Name: _____________________________
Title: ____________________________
APPROVED AS TO FORM:
By: _________________________________
Assistant General Counsel
Packet Pg. 606 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Signature Page to Amended and Restated Revolving Credit Agreement U.S. Bank National Association
By:____________________________________
Name: Bhalachandra Mehendale
Title: Senior Vice President
Packet Pg. 607 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement)
EXHIBIT A
[FORM OF TAX-EXEMPT NOTE]
Dated: October 29, 2020
FOR VALUE RECEIVED, Redding Joint Powers Authority (the “Authority”), promises to pay to the order of U.S. Bank National Association and its successors and assigns (the “Lender”), the lesser of (a) twenty-five million dollars ($25,000,000), and (b) the aggregate unpaid principal amount of all Tax-Exempt Loans made by the Lender from time to time pursuant to the Revolving Credit Agreement, dated as of October 29, 2020 (together with any amendments or supplements thereto, the “Agreement”), among the Authority, City of Redding (the “City”) and the Lender, on the dates and in the amounts provided for in the Agreement.
Interest. The Authority also promises to pay interest on the unpaid principal amount of this Tax-Exempt Note. This Tax-Exempt Note shall bear interest as set forth in the Agreement. All determinations of the interest rate borne by this Tax-Exempt Note by the Lender shall be presumed correct, if reasonably determined absent manifest error, by the Authority.
Maturity. This Tax-Exempt Note shall mature on the Maturity Date as set forth in the Agreement.
Advances. Advances hereunder, to the total amount of the principal sum stated above, may be made by the Lender at the written request of (i) the Authority Representative, or such other person as shall be identified to the Lender as so authorized, any one acting alone, who are authorized to request advances and direct the disposition of any advances until written notice of the revocation of such authority is received by the Lender, or (ii) any person, with respect to advances deposited to the credit of any deposit account of the Authority, which advances, when so deposited, shall be conclusively presumed to have been made to or for the benefit of the Authority of the fact that persons other than those authorized to request advances may have authority to draw against such account. The Lender shall have no obligation to determine whether any person requesting an advance is or has been authorized by the Authority.
Payments. All such payments of principal and interest shall be made in lawful money of the United States in immediately available funds to the Lender as indicated in writing by the Lender. Each payment made on this Tax-Exempt Note shall be credited first, to any interest then due and second, to the outstanding principal balance hereof.
Borrowing and Repayment. All Advances made by the Lender and all repayments of the principal thereof shall be recorded by the Lender; provided, however, that the failure of the Lender to make any such recordation shall not affect the obligations of the Authority hereunder or under the Agreement.
Security; Events of Default. This Tax-Exempt Note constitutes a Revolving Note as described in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. Upon the occurrence and continuation of Packet Pg. 608 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -2-
one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Tax-Exempt Note shall become, or may be declared to be, immediately due and payable, and shall bear interest at the Default Rate all as provided in the Agreement.
ALL OBLIGATIONS OF THE AUTHORITY HEREUNDER SHALL BE SECURED BY A LIEN ON AND PLEDGE OF AUTHORITY REVENUES. NONE OF THE OBLIGATIONS OF THE AUTHORITY HEREUNDER
SHALL BE A DEBT OF THE AUTHORITY WITHIN THE MEANING OF ANY CONSTITUTIONAL, STATUTORY
OR CHARTER LIMITATION UPON THE CREATION OF GENERAL OBLIGATION INDEBTEDNESS OF THE
AUTHORITY, AND THE AUTHORITY SHALL NOT BE LIABLE FOR THE PAYMENT OF ANY AMOUNTS HEREUNDER OUT OF ANY MONEY OF THE AUTHORITY OTHER THAN THE AUTHORITY REVENUES.
Presentment. Presentment for payment, demand, protest and notice of demand, notice of dishonor, notice of non-payment and all other notices are hereby waived by the Authority, except to the extent expressly provided in the Agreement. No failure to exercise, and no delay in exercising, any rights hereunder on the part of the holder hereof shall operate as a waiver of such rights.
Miscellaneous. The Authority, subject to Applicable Law and the limitations set forth herein and in the Agreement, hereby agrees to pay on demand all reasonable costs and expenses incurred in collecting amounts due hereunder or in enforcing or attempting to enforce any of the Lender’s rights hereunder, including, but not limited to, reasonable attorneys’ fees and expenses actually incurred if collected by or through an attorney, whether or not suit is filed.
Governing Law. This Note shall be governed by and construed in accordance with the laws of the State of California.
Business Purpose. The Authority represents and warrants that the Advances evidenced by this Tax-Exempt Note will be used for valid corporate purposes of Authority.
IN WITNESS WHEREOF, the undersigned has caused this Tax-Exempt Note to be executed under seal as of the day and year first written above.
REDDING JOINT POWERS FINANCING AUTHORITY
By:____________________________________
Name: ______________________________
Title: _______________________________
Packet Pg. 609 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -3-
TAX-EXEMPT NOTE TRANSACTIONS
DATE
ADVANCE
AMOUNT
INTEREST
RATE
AMOUNT OF
PRINCIPAL
REPAID
DATE TO
WHICH
INTEREST
PAID
NOTATION
MADE BY
Packet Pg. 610 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -4-
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto ______________________________________________________________________________ Please insert Social Security or
Taxpayer Identification Number
of Transferee
____________________________________
______________________________________________________________________________ (Please print or typewrite name and address, including zip code, of Transferee) ______________________________________________________________________________ the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints ______________________________________________________________________________ attorney to register the transfer of the within Note on the books kept for registration thereof, with full power of substitution in the premises.
Dated: ______________________________
Signature Guaranteed: _________________
____________________________________ ____________________________________ NOTICE: Signature(s) must be guaranteed by
a member or participant of a signature
guarantee program
NOTICE: The signature above must
correspond with the name of the Owner as it
appears upon the front of this Note in every
particular, without alteration or enlargement
or change whatsoever.
Packet Pg. 611 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement)
EXHIBIT B
[FORM OF TAXABLE NOTE]
Dated: October 29, 2020
FOR VALUE RECEIVED, Redding Joint Powers Authority (the “Authority”), promises to pay to the order of U.S. Bank National Association and its successors and assigns (the “Lender”), the lesser of (a) twenty-five million dollars ($25,000,000), and (b) the aggregate unpaid principal amount of all Taxable Loans made by the Lender from time to time pursuant to the Revolving Credit Agreement, dated as of October 29, 2020 (together with any amendments or supplements thereto, the “Agreement”), among the Authority, City of Redding (the “City”) and the Lender, on the dates and in the amounts provided for in the Agreement.
Interest. The Authority also promises to pay interest on the unpaid principal amount of this Taxable Note. This Taxable Note shall bear interest as set forth in the Agreement. All determinations of the interest rate borne by this Taxable Note by the Lender shall be presumed correct, if reasonably determined absent manifest error, by the Authority.
Maturity. This Taxable Note shall mature on the Maturity Date as set forth in the Agreement.
Advances. Advances hereunder, to the total amount of the principal sum stated above, may be made by the Lender at the written request of (i) the Authority Representative, or such other person as shall be identified to the Lender as so authorized, any one acting alone, who are authorized to request advances and direct the disposition of any advances until written notice of the revocation of such authority is received by the Lender, or (ii) any person, with respect to advances deposited to the credit of any deposit account of the Authority, which advances, when so deposited, shall be conclusively presumed to have been made to or for the benefit of the Authority of the fact that persons other than those authorized to request advances may have authority to draw against such account. The Lender shall have no obligation to determine whether any person requesting an advance is or has been authorized by the Authority.
Payments. All such payments of principal and interest shall be made in lawful money of the United States in immediately available funds to the Lender as indicated in writing by the Lender. Each payment made on this Taxable Note shall be credited first, to any interest then due and second, to the outstanding principal balance hereof.
Borrowing and Repayment. All Advances made by the Lender and all repayments of the principal thereof shall be recorded by the Lender; provided, however, that the failure of the Lender to make any such recordation shall not affect the obligations of the Authority hereunder or under the Agreement.
Security; Events of Default. This Taxable Note constitutes a Revolving Note as described in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. Upon the occurrence and continuation of one or Packet Pg. 612 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -2-
more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Taxable Note shall become, or may be declared to be, immediately due and payable, and shall bear interest at the Default Rate all as provided in the Agreement.
ALL OBLIGATIONS OF THE AUTHORITY HEREUNDER SHALL BE SECURED BY A LIEN ON AND PLEDGE OF AUTHORITY REVENUES. NONE OF THE OBLIGATIONS OF THE AUTHORITY HEREUNDER
SHALL BE A DEBT OF THE AUTHORITY WITHIN THE MEANING OF ANY CONSTITUTIONAL, STATUTORY
OR CHARTER LIMITATION UPON THE CREATION OF GENERAL OBLIGATION INDEBTEDNESS OF THE
AUTHORITY, AND THE AUTHORITY SHALL NOT BE LIABLE FOR THE PAYMENT OF ANY AMOUNTS HEREUNDER OUT OF ANY MONEY OF THE AUTHORITY OTHER THAN THE AUTHORITY REVENUES.
Presentment. Presentment for payment, demand, protest and notice of demand, notice of dishonor, notice of non-payment and all other notices are hereby waived by the Authority, except to the extent expressly provided in the Agreement. No failure to exercise, and no delay in exercising, any rights hereunder on the part of the holder hereof shall operate as a waiver of such rights.
Miscellaneous. The Authority, subject to Applicable Law and the limitations set forth herein and in the Agreement, hereby agrees to pay on demand all reasonable costs and expenses incurred in collecting amounts due hereunder or in enforcing or attempting to enforce any of the Lender’s rights hereunder, including, but not limited to, reasonable attorneys’ fees and expenses actually incurred if collected by or through an attorney, whether or not suit is filed.
Governing Law. This Note shall be governed by and construed in accordance with the laws of the State of California.
Business Purpose. The Authority represents and warrants that the Advances evidenced by this Taxable Note will be used for valid corporate purposes of Authority.
IN WITNESS WHEREOF, the undersigned has caused this Taxable Note to be executed under seal as of the day and year first written above.
REDDING JOINT POWERS FINANCING AUTHORITY
By:____________________________________
Name: ______________________________
Title: _______________________________
Packet Pg. 613 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -3-
TAXABLE NOTE TRANSACTIONS
DATE
ADVANCE AMOUNTINTEREST RATE
AMOUNT OF PRINCIPAL REPAID
DATE TO WHICH INTEREST PAID
NOTATION MADE BY
Packet Pg. 614 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -4-
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto ______________________________________________________________________________ Please insert Social Security or
Taxpayer Identification Number
of Transferee
____________________________________
______________________________________________________________________________ (Please print or typewrite name and address, including zip code, of Transferee) ______________________________________________________________________________ the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints ______________________________________________________________________________ attorney to register the transfer of the within Note on the books kept for registration thereof, with full power of substitution in the premises.
Dated: ______________________________
Signature Guaranteed: _________________
____________________________________ ____________________________________ NOTICE: Signature(s) must be guaranteed by
a member or participant of a signature
guarantee program.
NOTICE: The signature above must
correspond with the name of the Owner as it
appears upon the front of this Note in every
particular, without alteration or enlargement
or change whatsoever.
Packet Pg. 615 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement)
EXHIBIT C
[FORM OF TERM LOAN NOTE]
Dated: October 29, 2020
FOR VALUE RECEIVED, Redding Joint Powers Authority (the “Authority”), promises to pay to the order of U.S. Bank National Association and its successors and assigns (the “Lender”), the lesser of (a) twenty-five million dollars ($25,000,000), and (b) the aggregate unpaid principal amount of the Term Loan made by the Lender to the Authority pursuant to Section 2.01(i) of the Revolving Credit Agreement, dated as of October 29, 2020 (together with any amendments or supplements thereto, the “Agreement”), among the Authority, City of Redding (the “City”) and the Lender, on the dates and in the amounts provided for in the Agreement.
Interest. The Authority also promises to pay interest on the unpaid principal amount of this Term Loan Note. This Term Loan Note shall bear interest as set forth in the Agreement. All determinations of the interest rate borne by this Term Loan Note by the Lender shall be presumed correct, if reasonably determined absent manifest error, by the Authority.
Maturity. This Term Loan Note shall mature on the Term Loan Maturity Date as set forth in the Agreement.
Payments. All such payments of principal and interest shall be made in lawful money of the United States in immediately available funds to the Lender as indicated in writing by the Lender. Each payment made on this Term Loan Note shall be credited first, to any interest then due and second, to the outstanding principal balance hereof.
Borrowing and Repayment. Any Term Loan made by the Lender and all repayments of the principal thereof shall be recorded by the Lender; provided, however, that the failure of the Lender to make any such recordation shall not affect the obligations of the Authority hereunder or under the Agreement.
Security; Events of Default. This Term Loan Note constitutes a Term Loan Note as described in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Term Loan Note shall become, or may be declared to be, immediately due and payable, and shall bear interest at the Default Rate all as provided in the Agreement.
ALL OBLIGATIONS OF THE AUTHORITY HEREUNDER SHALL BE SECURED BY A LIEN ON AND PLEDGE OF AUTHORITY REVENUES. NONE OF THE OBLIGATIONS OF THE AUTHORITY HEREUNDER
SHALL BE A DEBT OF THE AUTHORITY WITHIN THE MEANING OF ANY CONSTITUTIONAL, STATUTORY
OR CHARTER LIMITATION UPON THE CREATION OF GENERAL OBLIGATION INDEBTEDNESS OF THE
AUTHORITY, AND THE AUTHORITY SHALL NOT BE LIABLE FOR THE PAYMENT OF ANY AMOUNTS Packet Pg. 616 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -2-
HEREUNDER OUT OF ANY MONEY OF THE AUTHORITY OTHER THAN THE AUTHORITY REVENUES.
Presentment. Presentment for payment, demand, protest and notice of demand, notice of dishonor, notice of non-payment and all other notices are hereby waived by the Authority, except to the extent expressly provided in the Agreement. No failure to exercise, and no delay in exercising, any rights hereunder on the part of the holder hereof shall operate as a waiver of such rights.
Miscellaneous. The Authority, subject to Applicable Law and the limitations set forth herein and in the Agreement, hereby agrees to pay on demand all reasonable costs and expenses incurred in collecting amounts due hereunder or in enforcing or attempting to enforce any of the Lender’s rights hereunder, including, but not limited to, reasonable attorneys’ fees and expenses actually incurred if collected by or through an attorney, whether or not suit is filed.
Governing Law. This Term Loan Note shall be governed by and construed in accordance with the laws of the State of California.
Business Purpose. The Authority represents and warrants that the Advances evidenced by this Term Loan Note will be used for valid corporate purposes of Authority.
IN WITNESS WHEREOF, the undersigned has caused this Term Loan Note to be executed under seal as of the day and year first written above.
REDDING JOINT POWERS FINANCING AUTHORITY
By:____________________________________
Name: ______________________________
Title: _______________________________
Packet Pg. 617 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -3-
TERM LOAN NOTE TRANSACTIONS
DATE
ADVANCE
AMOUNT
INTEREST
RATE
AMOUNT OF
PRINCIPAL
REPAID
DATE TO
WHICH
INTEREST
PAID
NOTATION
MADE BY
Packet Pg. 618 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -4-
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto ______________________________________________________________________________ Please insert Social Security or
Taxpayer Identification Number
of Transferee
____________________________________
______________________________________________________________________________ (Please print or typewrite name and address, including zip code, of Transferee) ______________________________________________________________________________ the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints ______________________________________________________________________________ attorney to register the transfer of the within Note on the books kept for registration thereof, with full power of substitution in the premises.
Dated: ______________________________
Signature Guaranteed: _________________
____________________________________ ____________________________________ NOTICE: Signature(s) must be guaranteed by
a member or participant of a signature
guarantee program
NOTICE: The signature above must
correspond with the name of the Owner as it
appears upon the front of this Note in every
particular, without alteration or enlargement
or change whatsoever.
Packet Pg. 619 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement)
EXHIBIT D
[FORM OF REQUEST FOR ADVANCE]
REQUEST FOR ADVANCE AND REVOLVING LOAN
U.S. Bank National Association
3 Bryant Park
1095 Avenue of the Americas, 13th Floor
New York, NY 10036
Attention: Bhalachandra Mehendale
Facsimile: (917) 256 2830
Telephone: (917) 326 3970
Email: [email protected]
With a copy to:
U.S. Bank National Association
US Bank Tower Cincinnati
425 Walnut St
Cincinnati, OH 45202
Attention: Cameron Parker
Telephone: (513) 449-7186
Email: [email protected]
Ladies and Gentlemen:
The undersigned refers to the Amended and Restated Revolving Credit Agreement, dated as of April __, 2023 (together with any amendments or supplements thereto, the “Agreement”), among The City of Redding (the “City”), Redding Joint Powers Financing Authority (the “Authority”) and U.S. Bank National Association (the “Lender”) (the terms defined therein being used herein as therein defined) and hereby requests, pursuant to Section 2.01 of the Agreement, that the Lender makes an Advance under the Agreement, and in that connection sets forth below the following information relating to such Advance (the “Proposed Advance”):
1. The Business Day of the Proposed Advance is ___________, 20__ (the “Advance Date”), which is at least two (2) Business Days after the date hereof.
2. The principal amount of the Proposed Advance is $___________, which, when added to all outstanding Advances, is not greater than the Commitment as of the Advance Date set forth in 1 above.
3. The Proposed Advance will be evidenced by the [Tax-Exempt/Taxable Note] (as defined in the Agreement).
Packet Pg. 620 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -2-
4. The interest rate with respect to the Proposed Advance shall be [the Tax-Exempt Rate] [the Taxable Loan Rate].
The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the Advance Date, before and after giving effect thereto:
(a) the undersigned is authorized to sign this Request for Advance on behalf of the Authority;
(b) the representations and warranties of the Authority set forth in Section 4.01 of the Agreement and in each other Loan Document shall be true and correct in all material respects on the date hereof and on such Advance Date as though made on the date hereof and on the date of Advance Date; and
(c) no Default or Event of Default shall have occurred and be continuing on such Advance Date.
The Proposed Advance shall be made by the Lender by wire transfer of immediately available funds to the undersigned in accordance with the instructions set forth below:
[Insert wire instructions]
Very truly yours,
REDDING JOINT POWERS FINANCING AUTHORITY
By:____________________________________
Name: ______________________________
Title: _______________________________
Packet Pg. 621 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -3-
Packet Pg. 622 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement)
EXHIBIT E
[FORM OF REQUEST FOR EXTENSION]
REQUEST FOR EXTENSION
[Date]
U.S. Bank National Association
3 Bryant Park
1095 Avenue of the Americas, 13th Floor
New York, NY 10036
Attention: Bhalachandra Mehendale
Facsimile: (917) 256 2830
Telephone: (917) 326 3970
Email: [email protected]
With a copy to:
U.S. Bank National Association
US Bank Tower Cincinnati
425 Walnut St
Cincinnati, OH 45202
Attention: Cameron Parker
Telephone: (513) 449-7186
Email: [email protected]
Ladies and Gentlemen:
Reference is made to the Amended and Restated Revolving Credit Agreement dated as of April __, 2023 (together with any amendments or supplements thereto, the “Agreement”) by and among the undersigned, the City of Redding (the “City”), Redding Joint Powers Financing Authority (the “Authority”) and U.S. Bank National Association (the “Lender”). All terms defined in the Agreement are used herein as defined therein.
The Authority hereby requests, pursuant to Section 2.10 of the Agreement, that the Maturity Date with respect to the Available Commitment as of the date hereof be extended by ____ to _____________, ______. Pursuant to such Section 2.10, we have enclosed with this request the following information:
1. a reasonably detailed description of any and all Defaults that have occurred and are continuing;
2. confirmation that all representations and warranties of the Authority and the Packet Pg. 623 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -2-
City as set forth in Article IV of the Agreement and each Loan Document are true and correct as though made on the date hereof and that no Default or Event of Default has occurred and is continuing on the date hereof; and
3. any other pertinent information previously requested by the Lender.
The Lender is asked to notify the Authority of its decision with respect to this request within 60 days of the date of receipt hereof. If the Lender fails to notify the Authority of the Lender’s decision within such 60-day period, the Lender shall be deemed to have rejected such request.
Very truly yours,
CITY OF REDDING
By:____________________________________
Name: ______________________________
Title: _______________________________
REDDING JOINT POWERS FINANCING AUTHORITY
By:__________________________________
Name: ____________________________
Title: ____________________________
Packet Pg. 624 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement)
EXHIBIT F
[FORM OF NOTICE OF EXTENSION]
NOTICE OF EXTENSION
[Date]
Redding Joint Powers Financing Authority
777 Cypress Avenue
Redding, CA 96001
Attention: Gregory Robinett, Director of Finance
Telephone: (530) 225-4088
E-mail: [email protected]
City of Redding
777 Cypress Avenue
Redding, CA 96001
Attention: Gregory Robinett, City Treasurer
Telephone: (530) 225-4088
E-mail: [email protected]
Ladies and Gentlemen:
We hereby notify you that pursuant to Section 2.10 of the Amended and Restated Revolving Credit Agreement dated as of April __, 2023, by and among the City of Redding, Redding Joint Powers Financing Authority, and U.S. Bank National Association (the “Lender”), the Maturity Date with respect to the Commitment as of the date hereof shall be extended _____ to __________, ______. Your acknowledgment hereof shall be deemed to be your representation and warranty that all your representations and warranties contained in Article IV of the Agreement and each other Related Document are true and correct and will be true and correct as of the date hereof and that no Default or Event of Default has occurred and is continuing.
Packet Pg. 625 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -2-
Very truly yours,
U.S. BANK NATIONAL ASSOCIATION
By:____________________________________
Name: ______________________________
Title: _______________________________
Packet Pg. 626 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement)
EXHIBIT G
[FORM OF NOTICE OF TERMINATION OR REDUCTION]
NOTICE OF TERMINATION OR REDUCTION
[Date]
U.S. Bank National Association
3 Bryant Park
1095 Avenue of the Americas, 13th Floor
New York, NY 10036
Attention: Bhalachandra Mehendale
Facsimile: (917) 256-2830
Telephone: (917) 326-3970
With a copy to:
U.S. Bank National Association
3 Bryant Park
1095 Avenue of the Americas, 13th Floor
New York, NY 10036
Attention: _________
Facsimile: (917) 256-2830
Telephone: _________
Ladies and Gentlemen:
Re:Amended and Restated Revolving Credit Agreement dated as of April __, 2023 The Redding Joint Powers Financing Authority (the “Authority”), through its undersigned, an Authority Representative, hereby certifies to U.S. Bank National Association (the “Lender”), with reference to the Amended and Restated Revolving Credit Agreement dated as of April __, 2023 (together with any amendments or supplements thereto, the “Agreement”), by and among the Authority, City of Redding, and the Lender (the terms defined therein and not otherwise defined herein being used herein as therein defined):
[(1) The Authority hereby informs you that the Commitment is terminated in accordance with the Agreement.]
OR
[(1) The Authority hereby informs you that the Available Commitment is Packet Pg. 627 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -2-
reduced from [insert amount as of the date of Certificate] to [insert new amount], such reduction to be effective on __________.]
Packet Pg. 628 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -3-
IN WITNESS WHEREOF, the Authority has executed and delivered this Notice this ______ day of __________, ______.
REDDING JOINT POWERS FINANCING AUTHORITY
By:____________________________________
Name: ______________________________
Title: _______________________________
CITY OF REDDING
By:____________________________________
Name: ______________________________
Title: _______________________________
Packet Pg. 629 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement)
EXHIBIT H
[FORM OF NOTICE OF REDUCTION]
NOTICE OF REDUCTION
[Date]
Redding Joint Powers Financing Authority
777 Cypress Avenue
Redding, CA 96001
Attention: Gregory Robinett, Director of Finance
Telephone: (530) 225-4088
E-mail: [email protected]
City of Redding
777 Cypress Avenue
Redding, CA 96001
Attention: Gregory Robinett, City Treasurer
Telephone: (530) 225-4088
E-mail: [email protected]
Ladies and Gentlemen:
We hereby notify you that pursuant to Section 2.13 of the Amended and Restated Revolving Credit Agreement dated as of April __, 2023, by and between the Redding Joint Powers Financing Authority (the “Authority”), the City of Redding, and U.S. Bank National Association (the “Lender”), the Available Commitment is reduced from [insert amount as of the date of Certificate] to [insert new amount], such reduction to be effective on ______________.
Packet Pg. 630 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -2-
Very truly yours,
U.S. BANK NATIONAL ASSOCIATION
By:____________________________________
Name: ______________________________
Title: _______________________________
Packet Pg. 631 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement)
EXHIBIT I
FORM OF LETTER OF CITY REPRESENTATIVE
This Compliance Certificate (this “Certificate”) is furnished to U.S. Bank National Association (the “Lender”) pursuant to that certain Amended and Restated Revolving Credit Agreement dated as of April __, 2023 (the “Agreement”), among City of Redding (the “City”), Redding Joint Powers Financing Authority (the “Authority”), and the Lender. Unless otherwise defined herein, the terms used in this Certificate shall have the meanings assigned thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected [title of City Representative] of the City;
2. I have reviewed the terms of the Agreement and I have made, or have caused to be made under my supervision, a detailed review of the transactions and conditions of the City during the accounting period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I have no knowledge of, the existence of any condition or the occurrence of any event which constitutes a Default or Event of Default during or at the end of the accounting period covered by the attached financial statements or as of the date of this Certificate, except as set forth below; and
4. The financial statements required by Section 5.02 of the Agreement and being furnished to you concurrently with this certificate fairly represent the consolidated financial condition of the City in accordance with GAAP (subject to year end adjustments) as of the dates and for the periods covered thereby.
Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the nature of the condition or event, the period during which it has existed and the action which the Obligated Group has taken, is taking, or proposes to take with respect to each such condition or event:
_________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ [Signature Page to Immediately Follow]
Packet Pg. 632 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement) -2-
The foregoing certifications and the financial statements delivered with this Certificate in support hereof, are made and delivered this _________ day of _______________, 20__.
CITY OF REDDING
By:____________________________________
Name: ______________________________
Title: _______________________________
Packet Pg. 633 Attachment: Marked A&R Credit Agreement (9.5(a)--Amend and Extend REU Revolving Credit Agreement)
CITY OF REDDING
REPORT TO THE CITY COUNCIL
Recommendation
Conduct a Joint Public Hearing with RJPFA and, upon conclusion, adopt Resolution authorizing the issuance by the RJPFA of notes; authorizing execution and delivery of a revolving credit agreement and installment sale agreement; and authorizing execution of documents and the taking of all necessary actions relating thereto.
Fiscal Impact
Initial advisor and attorney fees to establish the revolving credit agreement (“line of credit” or “agreement”) total approximately $130,000. Redding Electric Utility (“REU” or “the Utility”) will pay, at minimum, an undrawn commitment fee of $87,500 per year for the remainder of the agreement (35 basis points). Budget amendments will be requested during the Fiscal Year 2021 mid-year budget update process.
In addition, staff believes the acquisition of a line of credit will allow the utility to forego the planned 2021 rate increase of two percent (2%) by relying on the liquidity the agreement provides, as a replacement for reserves, while the Utility makes significant investment in the aging distribution system. Work is ongoing relative to the rate structure and revenue neutral recommendations could come forward in the fall of 2021.
Alternative Action
The City Council may choose to decline to proceed.
MEETING DATE: October 20, 2020
ITEM NO. 6.2
FROM:
***APPROVED BY***
[email protected] [email protected]
SUBJECT: 6.2--Joint Public Hearing with the Redding Joint Powers Financing Authority (RJPFA) to consider authorizing execution and delivery of a Revolving Credit Agreement and Installment Sale Agreement; and authorizing execution of documents, all related to the continued financial uncertainty related to the COVID-19 pandemic.
Daniel Beans, Director of
Electric Utility
Packet Pg. 634 Attachment: City Staff Report October 2020 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Report to Redding City Council October 14, 2020
Re: 6.2--Joint Public Hearing re REU Revolving Credit Agreement Page 2 Background/Analysis
On April 21, 2020, the Redding Electric Utility presented to the Council the financial impacts of COVID-19. The presentation included mitigating measures in place and planned. One planned measure was the acquisition of a revolving credit agreement (also known as a “line of credit”) to provide additional reserves in case the COVID-19 emergency escalated and to ensure long-term financial stability. As part of a formal Request for Proposal process, the utility received a competitive proposal from U.S. Bank, which also provides general banking services for the City of Redding.
Staff recommends entering into the revolving credit agreement with U.S. Bank due to the continued financial uncertainty related to COVID-19 and future benefits discussed below.
COVID-19 and Flu Season (Flu)
Shasta County was elevated to the State of California’s “Substantial” tier on October 6, 2020 due to an increased case rate per 100,000 residents. The more restrictive tier required changes to operations for businesses including restaurants and retail operations. Currently, Shasta County Health and Human Services anticipates Shasta County will be further elevated to the “Widespread” tier in late October, 2020, which will result in further restrictions on businesses and dampen economic activity. Without significant fiscal intervention by the federal government, the Redding economy may be materially impacted and many customers may be unable to pay their utility bills. Currently, the amount of past due collections is manageable, however, the ongoing uncertainty of COVID-19 as the normal flu season begins is significant.
Capital Outlay Funding
On September 16, 2020, Director Beans presented REU’s Fiscal Year 2020 annual financial report to the City Council. During that presentation Director Beans mentioned REU’s decreased reliability metrics due to REU’s aging distribution system. The utility is currently engaging a consulting-engineering firm to assist in the development of a supplemental capital improvement and major maintenance plan to address specific reliability issues. The cost of the supplemental plan will be significant and is in addition to $52 million of capital improvements planned over the next five years. Using a line of credit to maintain adequate liquidity is the best option to match capital expenses with long-term debt due to low carrying costs and the ability to “refinance” at fixed rates.
Event Risk Insurance
A line of credit would mitigate risk associated with self-insurance during a period of reduced reserves (i.e. significant capital outlay). During the 2018 Carr Fire and subsequent recovery, REU incurred approximately $9 million of costs. During the 2019 Snow Storm and subsequent recovery, REU incurred approximately $3 million of costs. Fortunately, adequate reserves were available to self-fund the improvements until eventual reimbursement from the Federal Emergency Management Agency (FEMA) and California Office of Emergency Services (CalOES). Both aforementioned reimbursements were outstanding at the same time. Should an unpredictable event of this magnitude occur while the utility was drawing down reserves for capital outlay, the utility could rely on the line of credit for liquidity until FEMA/CalOES reimbursement occurs.
Deleveraging Opportunities (Illustrative Only)
REU could use reserves to deleverage while maintaining liquidity with access to a line of credit.
Packet Pg. 635 Attachment: City Staff Report October 2020 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Report to Redding City Council October 14, 2020
Re: 6.2--Joint Public Hearing re REU Revolving Credit Agreement Page 3 For example, approximately $26 million of bonds will become callable in 2025 (2015As). If the 2015As were called in 2025, annual debt service would be reduced by approximately $3.5 million. Reducing annual debt service would mitigate anticipated rate increases related to Renewable Portfolio Standards.
REU is not the first electric utility to acquire a line of credit. Many cities employ these credit facilities to provide optionality and ensure staff can make financial decisions that benefit ratepayers. While the maximum available under the agreement is $25,000,000, REU does not intend to draw on the line unless extenuating circumstances deem it necessary.
Council Priority/City Manager Goals
• Budget and Financial Management: “Achieve balanced and stable 10-year Financial Plans for all funds.”
• Government of the 21st Century: “Be relevant and proactive to the opportunities and challenges of today’s residents and workforce. Anticipate the future to make better decisions today.”
Attachments
Resolution
Subordinate Installment Sale Agreement (available online) Credit Agreement (available online)
Packet Pg. 636 Attachment: City Staff Report October 2020 (9.5(a)--Amend and Extend REU Revolving Credit Agreement)
EXECUTION COPY
Credit Agreement ( Redding Electric- US Bank) 4820- 9544- 3399 v21. docx 4332458
REVOLVING CREDIT AGREEMENT
dated as of October 29, 2020
among
CITY OF REDDING,
REDDING JOINT POWERS FINANCING AUTHORITY,
and
U.S. BANK NATIONAL ASSOCIATION
Packet Pg. 637 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) iTABLE OF CONTENTS
SECTION HEADING PAGE
ARTICLE I DEFINITIONS ................................................................................................. 2 Section 1.01. Certain Defined Terms .......................................................................... 2 Section 1.02. Computation of Time Periods ............................................................. 18 Section 1.03. Construction ........................................................................................ 18 Section 1.04. Accounting Terms and Determinations ............................................... 18 Section 1.05. Relation to Other Documents; Acknowledgment of Different Provisions of Other Loan Documents; Incorporation by Reference ... 18 Section 1.06. LIBOR Notification ............................................................................. 18 ARTICLE II TERMS OF THE REVOLVING COMMITMENT ................................................. 19 Section 2.01. Revolving Commitment ...................................................................... 19 Section 2.02. Reserved .............................................................................................. 22 Section 2.03. Increased Costs .................................................................................... 22 Section 2.04. Net of Taxes, Etc. ................................................................................ 23 Section 2.05. Excess Interest ..................................................................................... 24 Section 2.06. Taxable Date ........................................................................................ 25 Section 2.07. Determination of Tax-Exempt Rates and Taxable Loan Rates ........... 26 Section 2.08. Pledge of Authority Revenues and Obligations Absolute ................... 26 Section 2.09. Fees ...................................................................................................... 27 Section 2.10. Extension of Maturity Date ................................................................. 28 Section 2.11. Payments Due on Non-Business Days ................................................ 28 Section 2.12. Breakage Expenses .............................................................................. 28 Section 2.13. Reduction and Termination ................................................................. 28 Section 2.14. Illegality ............................................................................................... 29 Section 2.15. Adequacy of Interest Rate ................................................................... 29 ARTICLE III CONDITIONS PRECEDENT ............................................................................ 31 Section 3.01. Documentary Requirements for Agreement to Extend Credit ............ 31 Section 3.02. Credit Requirements ............................................................................ 32 Section 3.03. Conditions Precedent to Each Advance Hereunder ............................. 32 Section 3.04. Conditions Precedent to the Initial Tax-Exempt Loan ........................ 33 ARTICLE IV REPRESENTATIONS AND WARRANTIES ....................................................... 33 Section 4.01. Representations and Warranties of the Authority ............................... 33 Section 4.02. Representations and Warranties of the City ........................................ 36 ARTICLE V COVENANTS OF THE AUTHORITY ................................................................ 40 Section 5.01. Covenants of the Authority ................................................................. 40 Section 5.02. Covenants of the City .......................................................................... 43 Packet Pg. 638 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) iiARTICLE VI EVENTS OF DEFAULT .................................................................................. 50 Section 6.01. Events of Default ................................................................................. 50 Section 6.02. Consequences of an Event of Default ................................................. 52 Section 6.03. Remedies Cumulative; Solely for the Benefit of Lender .................... 53 Section 6.04. Waivers or Omissions .......................................................................... 53 Section 6.05. Discontinuance of Proceedings ........................................................... 53 ARTICLE VII INDEMNIFICATION ...................................................................................... 54 Section 7.01. Indemnification .................................................................................... 54 Section 7.02. Survival ................................................................................................ 54 ARTICLE VIII MISCELLANEOUS ........................................................................................ 54 Section 8.01. Patriot Act Notice ................................................................................ 54 Section 8.02. Further Assurances .............................................................................. 54 Section 8.03. Amendments and Waivers ................................................................... 55 Section 8.04. Notices ................................................................................................. 55 Section 8.05. No Third-Party Rights ......................................................................... 57 Section 8.06. Severability .......................................................................................... 57 Section 8.07. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial .......... 57 Section 8.08. No Advisory or Fiduciary Responsibility ............................................ 58 Section 8.09. Entire Agreement ................................................................................. 58 Section 8.10. Duration ............................................................................................... 58 Section 8.11. Counterparts ........................................................................................ 59 Section 8.12. Successors, Assigns and Participations ............................................... 59 Section 8.13. No Right of Setoff .............................................................................. 59 Section 8.14. Electronic Signatures ........................................................................... 59
EXHIBITS
EXHIBIT A — Form of Tax-Exempt Note
EXHIBIT B — Form of Taxable Note
EXHIBIT C — Form of Term Loan Note
EXHIBIT D — Request for Advances
EXHIBIT E — Request for Extension
EXHIBIT F — Notice of Extension
EXHIBIT G — Notice of Reduction or Termination
EXHIBIT H — Notice of Reduction or Termination
EXHIBIT I — Letter of City Representative
Packet Pg. 639 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement)
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT dated as of October 29, 2020 ( as the same may be amended, restated, supplemented or otherwise modified from time to time, this “ Agreement”), among the CITY OF REDDING, a municipal corporation duly organized and existing in the State of California ( the “ City”), REDDING JOINT POWERS FINANCING AUTHORITY, a joint exercise of powers agency created and existing under the laws of the State of California ( the “ Authority”), and U.S. BANK NATIONAL ASSOCIATION ( the “ Lender”).
RECITALS
WHEREAS, the City previously entered into the hereinafter defined Joint Powers Agreement establishing the Authority as a joint powers authority under the hereinafter defined Act, for the purpose, among others, of assisting in the City in its financing needs by financing public capital improvements;
WHEREAS, the City has determined to finance and refinance the acquisition, construction and installation from time to time of certain improvements, additions, and betterments to the City’ s hereinafter defined Electric System ( collectively, the “ Projects”); WHEREAS, to assist the City in financing and refinancing the acquisition, construction and installation of the Projects, the Lender will make advances at the request of the Authority from time to time pursuant to the terms of this Agreement and other applicable laws of the State of California;
WHEREAS, the Authority has agreed to sell the Projects to the City and the City has agreed to purchase the Projects from the Authority and pay the purchase price of Projects, as provided in the hereinafter defined Installment Sale Agreement;
WHEREAS, the City has agreed under the Installment Sale Agreement to make Installment Payments to the Authority to pay the purchase price of the Projects, which Installment Payments shall be sufficient in amount to pay the principal of and interest on Loans and all other amounts payable by the Authority under this Agreement; and
WHEREAS, the Lender has agreed to extend credit to the Authority for the benefit of the City and its Electric System, on a revolving basis, up to a maximum principal amount of 25,000,000 at any time outstanding, to finance the Projects.
NOW, THEREFORE, to induce the Lender to extend such credit as described above, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the City, the Authority, and the Lender hereby agree as follows:
Packet Pg. 640 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 2-
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following meanings:
Act” means the Joint Exercise of Powers Act, California Government Code Section 6500, et seq.
Advance” has the meaning assigned to such term in Section 2.01(a) hereof. For the avoidance of doubt, outstanding Taxable Loans and Tax-Exempt Loans each constitute an Advance.
Advance Date” means the date on which the Lender honors a Request for Advance and makes the funds requested available to the Authority.
Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling or controlled by or under common control with such Person. Without limiting the foregoing, the definition of “Affiliate” of any Person shall include any subsidiary of such Person.
Agreement” has the meaning assigned to such term in the introductory paragraph of this Agreement.
Alternate Rate” means, for any day, a fluctuating rate of interest per annum equal to the sum of (i) the Federal Funds Rate plus 2.00% and (ii) the Applicable Spread, in each case as of such day.
Anti-Terrorism Laws” has the meaning assigned to such term in Section 4.01(n) hereof.
Applicable Factor” means 85%.
Applicable Law” means ( i) all applicable common law and principles of equity, ii) Environmental Laws, and (iii) all applicable provisions of all (A) constitutions, statutes, rules, regulations and orders of all governmental and non-governmental bodies, ( B) Governmental Approvals, and (C) orders, decisions, judgments and decrees of all courts ( whether at law or in equity) and arbitrators.
Applicable Spread” means, with respect to Tax-Exempt Loans and Taxable Loans, as applicable, the Tax-Exempt Applicable Spread and the Taxable Applicable Spread, respectively, as set forth in Obligor Rating Pricing Adjustments. As of the Closing Date, the Tax-Exempt Applicable Spread is 65 basis points and the Taxable Applicable Spread is 75 basis points.
Approving Opinion” means, with respect to any action or matter that may affect a Tax-Exempt Loan, an opinion delivered by Bond Counsel to the effect that such action ( i) is permitted by this Agreement and the other Related Documents, and (ii) will not adversely affect Packet Pg. 641 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 3-
the exclusion of interest on any Tax-Exempt Loan from the gross income of the Lender or any Participant for purposes of federal income taxation.
Authority” has the meaning assigned to such term in the introductory paragraph of this Agreement.
Authority Representative” means one or more of the following officers and employees of the Authority, acting in concert or individually, to wit: the Executive Director of the Authority, the Treasurer of the Authority or any officers or employee of the Authority appointed as such by resolution.
Authority Revenues” means all Installment Payments made and/or payable by the City under the Installment Sale Agreement.
Available Commitment” means the Commitment, adjusted from time to time as follows:
a) downward by the principal amount of any Revolving Loan, and ( b) upward by the principal amount of the repayment or prepayment of any Revolving Loan.
Base Rate” means, for any day, a fluctuating rate of interest per annum equal to the greatest of (i) the Prime Rate in effect at such time plus one percent ( 1.0%), (ii) the Federal Funds Rate in effect at such time plus two percent ( 2.0%), and (iii) seven and a half percent ( 7.5%).
Benchmark Replacement” means the sum of: ( a) an alternate benchmark rate that has been selected by the Lender giving due consideration to (i) any selection or recommendation of a replacement rate or the mechanism for determining such a rate by the Relevant Governmental Body and (ii) any evolving or then-prevailing market convention for determining a rate of interest as a replacement to LIBOR for U.S. syndicated or bilateral credit facilities denominated in Dollars that are substantially similar to the credit facilities under this Agreement and (b) the Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so determined would be less than 0.25%, the Benchmark Replacement will be deemed to be 0.25% for the purposes of this Agreement.
Benchmark Replacement Adjustment” means, with respect to any replacement under this Agreement of LIBOR with an alternative benchmark rate the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Lender giving due consideration to ( a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of LIBOR with an alternative benchmark rate by the Relevant Governmental Body and (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of LIBOR with an alternative benchmark rate at such time for U.S. syndicated or bilateral credit facilities denominated in Dollars that are substantially similar to the credit facilities under this Agreement, which adjustment or method for calculating or determining such spread adjustment pursuant to clause (b) is published on an information service as selected by the Lender from time to time and as may be updated periodically.
Packet Pg. 642 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 4-
Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes ( including changes to the definitions relating to timing and frequency of determining rates and making payments of interest and other administrative matters) that the Lender decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Lender in a manner substantially consistent with then-prevailing market practice ( or, if the Lender decides that adoption of any portion of such market practice is not administratively feasible or if the Lender determines that no market practice for the administration of the Benchmark Replacement exists, in such other manner of administration as the Lender decides is reasonably necessary in connection with the administration of this Agreement).
Benchmark Replacement Date” means the earliest to occur of the following events with respect to LIBOR:
a) in the case of clauses (ii), (iii) or (iv) of Section 2.15(b), the later of:
i) the date of the public statement or publication of information referenced therein and
ii) the date on which the administrator of LIBOR permanently or indefinitely ceases to provide LIBOR;
b) in the case of clause (i) of Section 2.15(b), the earlier of i) the date of the public statement or publication of information referenced therein; and
ii) the date specified by the Lender by notice to the Authority and the City; and
c) in the case of clause ( v) of Section 2.15(b), the date specified by the Lender by notice to the Authority and the Corporation.
Benchmark Transition Event” has the meaning assigned to such term in Section 2.15(b) hereof.
Benchmark Unavailability Period” means, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to LIBOR and solely to the extent that LIBOR has not been replaced hereunder with a Benchmark Replacement, the period y) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced LIBOR for all purposes under this Agreement and the other Loan Documents in accordance with Section 2.15(b) and (z) ending at the time that a Benchmark Replacement has replaced LIBOR for all purposes under this Agreement and the other Loan Documents pursuant to Section 2.15(b) hereof.
Packet Pg. 643 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 5-
Bond Counsel” means Orrick, Herrington & Sutcliffe LLP, or such other counsel of recognized national standing in the field of law relating to municipal bonds and the exemption from federal income taxation of interest thereon, appointed and paid by the Authority.
Business Day” means any day except a Saturday, Sunday or any other day on which commercial banks in New York are authorized or required by law to close.
Change of Law” means the adoption or implementation, after the Closing Date, of, or any change, after the Closing Date, in, any Risk-Based Capital Guidelines or any other law, rule, treaty, regulation, guideline, order or request ( whether or not having the force of law) of any Governmental Authority, or the application of the requirements thereof, or any change in the interpretation, application, implementation, enforcement or administration, after the Closing Date, of any of the foregoing by any Governmental Authority; provided that notwithstanding anything herein to the contrary, ( i) the Dodd Frank Wall Street Reform and Consumer Protection Act and all requests, rules, rulings, guidelines, regulations or directives thereunder or issued in connection therewith and (ii) all requests, rules, rulings, guidelines, regulations or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision ( or any successor or similar authority) or the United States of America or foreign regulatory authorities shall in each case be deemed to be a “ Change of Law,” regardless of the date enacted, adopted or issued.
City” has the meaning assigned to such term in the introductory paragraph of this Agreement.
City Representative” means, one or more of the following officers and employees of the City, acting in concert or individually, to wit: the City Manager of the City, the City Treasurer of the City or any officers or employee of the City appointed as such by resolution.
Closing Date” means October 29, 2020, assuming the conditions set forth in Section 3.01 are satisfied or waived by the Lender.
Code” means the Internal Revenue Code of 1986, as amended from time to time.
Commitment” means an amount not to exceed $25,000,000.
Commitment Termination Date” means the earliest of (i) the Maturity Date, as such date may be extended pursuant to Section 2.10 hereof, (ii) the date on which the Commitment and/or Available Commitment are otherwise terminated or reduced to zero in accordance with Section 2.13 hereof, and (iii) the date the Commitment terminates by its terms in accordance with Section 6.02 hereof.
Computation Date” means, with respect to any Advance, the second New York Banking Day preceding the date each Advance is made and thereafter the second New York Banking Day preceding each LIBOR Index Reset Date.
Packet Pg. 644 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 6-
Contract” means any indenture, contract, agreement ( other than this Agreement), other contractual restriction, lease, mortgage, instrument ( other than the Revolving Notes) or guaranty to which the City or the Authority is a party related to Debt payable from or secured by Net Revenues, in each case including any amendment, restatement, supplement or other modification thereto.
control,” “ controlled by” or “ under common control with,” when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting rights, the power to appoint officers, members, trustees or directors, by contract, statute or otherwise.
Debt” means, with respect to any Person, all items that would be classified as a liability in accordance with GAAP, including, without limitation or duplication, ( i) all obligations of such Person for borrowed money, ( ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, ( iii) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of business ( including, without limitation, accounts payable to construction contractors and other professionals for services rendered), and which are not subject to appropriation, ( iv) all obligations of such Person as lessee under capital leases, ( v) all Debt of others secured by a Lien on any asset of such Person, so long as such Debt is assumed by such Person, ( vi) all Debt of others guaranteed by such Person, ( v) current liabilities in respect of unfunded benefits under employee benefit, retirement or pension plans, ( vi) obligations issued for the account of any other Person, ( vii) all unfunded amounts under a loan agreement, letter of credit, or other credit facility for which such Person would be liable, if such amounts were advanced under the credit facility, and viii) obligations of such Person under Interest Rate Swap Agreements.
Default” means any event or condition which with notice, passage of time or any combination of the foregoing would constitute an Event of Default.
Default Rate” means the fluctuating per annum rate of interest at all times equal to the then applicable Base Rate plus 4.0%.
Determination of Taxability” means and shall be deemed to have occurred on the first to occur of the following:
i) on the date when the Authority or the City files any statement, supplemental statement or other tax schedule, return or document which discloses that interest paid or payable on the Tax-Exempt Loan is includable, in whole or in part, in the gross income of the Lender or any Participant for federal income tax purposes; ii) on the date when the Lender has received written notification from the Authority or the City, supported by a written opinion by an attorney or firm of attorneys of recognized standing on the subject of tax-exempt municipal finance, to the effect that interest paid or payable on the Tax-Exempt Loan is includable, in whole or in part, in the gross income of the Lender or any Participant for federal income tax purposes; Packet Pg. 645 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 7-
iii) on the date when the Authority or the City shall be advised in writing by the Commissioner or any District Director of the Internal Revenue Service ( or any other government official or agent exercising the same or a substantially similar function from time to time) that based upon filings of the Authority or the City (or a statutory notice of deficiency, or a document of substantially similar import), or upon any review or audit of the Authority, or upon any other ground whatsoever, interest paid or payable on the TaxExempt Loan is includable, in whole or in part, in the gross income of the Lender or any Participant for federal income tax purposes; or
iv) on the date when the Authority or the City shall receive notice from the Lender that the Internal Revenue Service ( or any other government official or agency exercising the same or a substantially similar function from time to time) has assessed as includable in the gross income of the Lender or any Participant the interest on any Tax-Exempt Loan.
Electric System” means the electric utility system of the City, comprising all electric generation, transmission and distribution facilities and all general plant facilities related thereto now owned by the City and all other properties, structures or works for the generation, transmission and distribution of electricity hereafter acquired by the City and determined by the City to be a part of the Electric System, including all contractual rights for electricity and capacity; together with all additions, betterments, extensions or improvements to such facilities, properties, structures or works or any part thereof hereafter acquired.
Environmental Laws” means any past, present or future federal, state, or local statutory or common law or any regulation, ordinance, code, plan, regulatory or court order, decree, permit, grant, restriction, policy or agreement issued, entered, promulgated or approved thereunder, relating to Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. § 9601 et seq. (“ CERCLA”); the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901, et seq. (“ RCRA”); the Toxic Substances Control Act, 15 U.S.C. § 2601, et seq.; the Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq.
FWPCA”); the Hazardous Materials Transportation Act, 49 U.S.C. § 5101, et seq. (“ HMTA”); the Safe Drinking Water Act, 42 U.S.C. § 300f, et seq.; the Occupational Safety and Health Act, 29 U.S.C. § 651, et seq.; the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. § 11001 et seq. (“ EPCRA”); the National Environmental Policy Act, 42 U.S.C. § 4321, et seq.; the Atomic Energy Act, 42 U.S.C. § 2014, et seq.; the Endangered Species Act, 16 U.S.C. 1531, et seq.; the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136, et seq.
FIFRA”); the Clean Air Act, 42 U.S.C. § 7401, et seq.; the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq.; the Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. 651, et seq.; and their state analogs, state counterparts, and other state laws, regulations, and statutes relating to protection of human health, safety or the environment, including those relating to (i) releases, discharges, emissions or disposals to air, water, land or ground water; (ii) the use, handling or disposal of polychlorinated biphenyls ( PCB’ s), asbestos, radon, lead paint or urea formaldehyde; (iii) the treatment, storage, transportation, refinement, disposal or management of Hazardous Substances ( including virgin or used petroleum, crude oil, heating oil or any fraction thereof) and any other solid, liquid or gaseous substance, exposure to which is prohibited, limited Packet Pg. 646 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 8-
or regulated by any environmental law, or may or could pose a hazard to the health and safety of the occupants of the Authority’ s Property; ( iv) the exposure of persons to toxic, hazardous, or other controlled, prohibited or regulated substances; ( v) the transportation, storage, disposal, management or release of gaseous or liquid substances; ( vi) underground or aboveground storage tanks; ( vii) any explosive or radioactive material; ( viii) freshwater wetlands; ( ix) radon gas; x) endangered species; and ( xi) Stachybotrys chartarum and other molds, and any rules, regulations, guidance, orders, injunctions, judgments, declarations, notices or demands promulgated or issued thereunder.
ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated, and rulings issued thereunder. Section references to ERISA herein correspond to sections of ERISA as in effect at the Closing Date and any corresponding future sections of ERISA amendatory thereof, supplemental thereto or substituted therefor.
Event of Default” has the meaning assigned to such term in Section 6.01 hereof.
Event of Insolvency” means, with respect to the City or the Authority, the occurrence of one or more of the following events:
a) the issuance, under the Laws of any state or under the Laws of the United States of America, of an order of rehabilitation, liquidation or dissolution of such Person; b) the commencement by or against such Person of a case or other proceeding seeking liquidation, reorganization or other relief with respect to such Person or its Debt under any bankruptcy, insolvency or other similar state or federal law now or hereafter in effect which case or proceeding is not dismissed within 60 days, including, without limitation, the appointment of a trustee, receiver, liquidator, custodian or other similar official for such Person or any substantial part of its property or there shall be appointed or designated with respect to it, an entity such as an organization, board, commission, authority, agency or body to monitor, review, oversee, recommend or declare a financial emergency or similar state of financial distress with respect to it or there shall be declared or introduced or proposed for consideration by it or by any legislative or regulatory body with competent jurisdiction over it, the existence of a state of financial emergency or similar state of financial distress in respect of it;
c) the making of an assignment for the benefit of creditors by such Person; d) the failure of such Person to generally pay its Debt when due; e) a debt moratorium, debt adjustment, debt restructuring or comparable restriction with respect to the payment of any Debt of such Person is declared or imposed by such Person or by any Governmental Authority having jurisdiction over such Person; f) such Person shall admit in writing its inability to pay its Debt when due; or Packet Pg. 647 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 9-
g) the initiation of any actions to authorize any of the foregoing by or on behalf of such Person.
Excess Interest Amount” has the meaning assigned to such term in Section 2.05 hereof.
Excluded Taxes” means, with respect to a Lender or any Participant, ( a) taxes imposed on or measured by its overall net income ( however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction ( or any political subdivision thereof) under the laws of which the Lender or any Participant is organized or in which its principal office is located, and ( b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the Authority or the City is located.
Executive Order” has the meaning assigned to such term in Section 4.01(n) hereof.
Expenses” means all reasonable fees, charges, costs and expenses of any nature whatsoever, whether in the form of a direct, reimbursement or indemnity payment obligation, incurred at any time and from time to time (whether before or after an Event of Default) by the Lender in funding Advances, in administering or modifying the Loan Documents, in negotiating or entering into any “ workout” of the Transactions, or in exercising or enforcing any rights, powers and remedies provided in any of the Loan Documents, including reasonable attorneys’ fees, court costs, and receiver’ s fees.
Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to the Lender on such day on such transactions as reasonably determined by the Lender.
Fiscal Year” means the period of twelve (12) consecutive calendar months for which financial statements of the respective entity have been examined by its independent certified public accountants; currently for the City, a year ending on June 30.
Fitch” means Fitch Ratings, Inc., and any successor rating agency.
GAAP” means generally accepted accounting principles in effect from time to time in the United States and applicable to entities such as the City.
Governmental Approvals” means an authorization, consent, approval, license or exemption of, registration or filing with, or report to, any Governmental Authority.
Governmental Authority” means the government of the United States of America or any other nation or any political subdivision thereof or any governmental or quasi-governmental entity, Packet Pg. 648 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 10-
including any court, department, commission, board, bureau, agency, administration, central bank, service, district or other instrumentality of any governmental entity or other entity exercising executive, legislative, judicial, taxing, regulatory, fiscal, monetary or administrative powers or functions of or pertaining to government, or any arbitrator, mediator or other Person with authority to bind a party at law.
Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, materials, contaminants, chemicals, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
Hazardous Substance” means any chemical, material or substance ( i) listed, defined or regulated as or included in the definition of “ hazardous substances,” “ hazardous wastes,” hazardous materials,” “ extremely hazardous waste,” “ restricted hazardous waste,” “ infectious waste,” or “ toxic substances” or words of similar impact under any applicable Environmental Laws, including, but not limited to, FWPCA, RCRA, CERCLA, and HMTA or otherwise classified as hazardous or toxic, in or pursuant to any Environmental Law; (ii) the release of or the exposure to which is prohibited, limited or regulated by any Environmental Law; or (iii) that poses a hazard to health, safety or the environment. “ Hazardous Substance” does not include ( i) a substance regularly used in the cleaning and maintenance of the Authority’ s Property and that is a material referenced at 40 C.F.R. § 261.4(b)(1), the “ household waste” exclusion under RCRA, but only if the quantity and manner of its use are customary and prudent and do not violate Applicable Law, or (ii) automotive motor oil in immaterial quantities, if leaked from vehicles in the ordinary course of the operation of the Electric System and cleaned up in accordance with reasonable property management procedures and in a manner that does not violate Applicable Law.
Indemnified Taxes” means Taxes other than Excluded Taxes.
Installment Payment” has the meaning assigned to such term in the Installment Sale Agreement.
Installment Sale Agreement” means that certain Subordinate Installment Sale Agreement dated as of October 1, 2020, between the City and the Authority, as the same may be amended, restated, or otherwise modified from time to time in accordance with the terms thereof and hereof.
Interest Payment Date” has the meaning assigned to such term in Section 2.01(f) hereof.
Interest Rate Swap Agreement” means an interest rate swap, cap or collar agreement or similar arrangement between any Person and a financial institution providing for the transfer or mitigation of interest rate risks either generally or under specific contingencies.
Joint Powers Agreement” means the Joint Exercise of Powers Agreement dated December 6, 1988, between the City and the Housing Authority of the City of Redding, as supplemented by the First Supplemental Agreement to Joint Exercise of Powers Agreement dated December 20, 1988, and as amended by an Amendment to Joint Powers Agreement, dated August Packet Pg. 649 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 11-
27, 1997, and as the same may further amended, restated, or otherwise supplemented with the terms hereof and thereof.
Law” means any treaty or any federal, regional, state and local law, statute, rule, ordinance, regulation, code, license, authorization, decision, injunction, interpretation, order or decree of any court or other Governmental Authority.
Lender” has the meaning assigned to such term in the introductory paragraph of this Agreement.
Liabilities” has the meaning assigned to such term in Section 7.01 hereof.
LIBOR” means, for any LIBOR Index Reset Date, the one-month LIBOR rate quoted by the Lender from Reuters Screen LIBOR01 Page or any successor thereto, which shall be that onemonth LIBOR rate in effect two (2) New York Banking Days immediately prior to such LIBOR Index Reset Date, adjusted for any reserve requirement and any subsequent costs arising from a change in government regulation. In the event LIBOR is not available for any reason, “ LIBOR” will instead be a comparable index determined by such comparable alternate method designed to measure interest rates in a similar manner as reasonably selected by the Lender. Notwithstanding the foregoing, if at any time when determined, LIBOR shall be less than 0.25%, LIBOR shall be deemed to be 0.25% for purposes of this Agreement.
LIBOR Index Reset Date” means, with respect to each Advance, the day such Advance is made, and thereafter the first day of each calendar month.
Lien” means any lien, mortgage, security interest, pledge or other charge or encumbrance of any kind, or any other type of preferential arrangement, including without limitation the lien or retained security title of a conditional vendor and any easement, right of way or other encumbrance on title to personal, real or mixed property.
Loan Documents” means this Agreement, the Loans, the Installment Sale Agreement, the Taxable Note, the Tax-Exempt Note, the Term Loan Note and any other agreements executed by the City or the Authority pursuant to the terms of this Agreement, in each case as amended from time to time.
Loans” means Revolving Loans, Advances, and/or Term Loans.
Maintenance and Operation Costs” means the costs paid or incurred by the City for maintaining and operating the Electric System including, but not limited to, (a) all costs of electric energy and power generated or purchased by the City for resale, costs of transmission, fuel supply and water supply in connection with the foregoing, (b) all expenses of management and repair and other expenses necessary to maintain and preserve the Electric System in good repair and working order, ( c) all administrative costs of the City that are charged directly or apportioned to the operation of the Electric System, such as salaries and wages of employees, overhead, taxes (if any) and insurance premiums, ( d) all other reasonable and necessary costs of the City or charges required to be paid by it to comply with the terms hereof or of any resolution authorizing the Packet Pg. 650 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 12-
execution of any Senior Lien Obligations, such as compensation, reimbursement and indemnification of the trustee, remarketing agent or surety costs for the Senior Lien Obligations, letter of credit fees relating to Senior Lien Obligations, fees and expenses of independent certified public accountants, ( e) all amounts required to be paid by the City under contracts with a joint powers agency for the purchase of capacity, energy, transmission capability or any other commodity or service in connection with the foregoing, which contract requires payments to be made by the City thereunder to be treated as maintenance and operation costs of the Electric System, ( f) any other cost or expense which, in accordance with GAAP, is to be treated as a cost of operating or maintaining the Electric System; but excluding in all cases depreciation, replacement and obsolescence charges or reserves therefor and amortization of intangibles.
Margin Stock” has the meaning assigned to such term in Regulation U promulgated by the Board of Directors of the Federal Reserve System, as now and hereafter from time to time in effect.
Material Adverse Change” means the occurrence of any event or change, which separately or in the aggregate with the occurrence of other events, results or could reasonably be expected to result in a Material Adverse Effect.
Material Adverse Effect” means any material adverse change in or effect on ( i) the business, operations, assets, liabilities, condition ( financial or otherwise) or results of operations of the Electric System, ( ii) the ability of the City or the Authority, as the case may be, to consummate the transactions contemplated by this Agreement or any of the Related Documents to which the City or the Authority is a party, (iii) the ability of the City or the Authority to perform any of its obligations under any of the Related Documents to which the City or the Authority is or will be a party or (iv) the legality, validity, binding effect or enforceability against the City or the Authority, as the case may be, of any Related Document to which the City or the Authority is a party or the rights, security, interests or remedies of the Lender hereunder or under any of the other Related Documents.
Material Litigation” has the meaning assigned to such term in Section 4.0l(e) and 4.02(e) hereof.
Maturity Date” means May 1, 2023, or such later date to which the Maturity Date may be extended by mutual agreement in writing of the Lender, the City, and the Authority following written notification to the Lender from the City and the Authority of its desire to extend the Maturity Date in accordance with .
Maximum Federal Corporate Tax Rate” means, for any day, the maximum rate of income taxation imposed on corporations pursuant to Section 11(b) of the Code, as in effect as of such day or, if as a result of a change in the Code, the rate of income taxation imposed on corporations generally shall not be applicable to the Lender, the maximum statutory rate of federal income taxation which could apply to the Lender as of such day). As of the Closing Date, the Maximum Federal Corporate Tax Rate is 21%.
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Maximum Rate” means the maximum net effective interest rate permitted by State law to be paid on obligations issued or incurred by the Authority in the exercise of its borrowing powers.
Moody’ s” means Moody’ s Investors Service, Inc. and any successor rating agency.
Net Revenues” means, for any period of time in question, the Revenues during such period less the Maintenance and Operation Costs during such period.
New York Banking Day” means any day ( other than a Saturday or Sunday) on which commercial banks are open for business in New York, New York.
Obligations” means all amounts payable by the Authority, including, without limitation, the Revolving Notes and the principal of and interest on Loans, and all other obligations to be performed by the Authority, pursuant to this Agreement and the other Related Documents including any amounts to reimburse the Lender for any expenditures by it under any of such documents).
Obligor Rating” means the long-term unenhanced ratings ( without regard to any bond insurance policy or credit enhancement) assigned by each Rating Agency to Senior Lien Obligations ( in each case to the extent such Rating Agency is then providing such rating).
Obligor Rating Pricing Adjustments” means the table setting forth the Undrawn Commitment Fee, the Taxable Applicable Spread, and the Tax-Exempt Applicable Spread determined in relation to the applicable Obligor Rating, as set forth below:
LEVEL MOODY’ S S& P FITCH
UNDRAWN
COMMITM
ENT FEE
BASIS
POINTS)
TAXABLE
APPLICABLE
SPREAD
BASIS
POINTS)
TAX-EXEMPT
APPLICABLE
SPREAD
BASIS
POINTS)
1 Aa3 or above AA- or above AA- or above 35 75 65
2 A1 A+ A+ 50 95 80
3 A2 A A 75 125 105
4 A3 A- A- 110 165 140
5 Baa1 BBB+ BBB+ 165 230 195
The applicable Undrawn Commitment Fee, Taxable Applicable Spread and Tax-Exempt Applicable Spread shall be such value corresponding with the lowest Obligor Rating ( for the avoidance of doubt, Level 5 is the lowest Level, and Level 1 is the highest level for purposes of the above pricing grid). Any change in the Undrawn Commitment Fee, Taxable Applicable Spread and Tax-Exempt Applicable Spread resulting from a change in the Obligor Rating shall be and Packet Pg. 652 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 14-
become effective as of and on the date of the announcement of the change in the Obligor Rating.
In the event of a split rating ( i.e., one of the foregoing Rating Agencies’ Obligor Rating is at a different Level than the Obligor Rating of either of the other Rating Agencies), the Undrawn Commitment Fee, Taxable Applicable Spread and Tax-Exempt Spread shall be based upon the level in which the lowest Obligor Rating appears. In the event that no Obligor Ratings are available, as a result of any breach of Section 5.02(t) hereof (which breach has not been cured but has not yet become an Event of Default), the Undrawn Commitment Fee, Taxable Applicable Spread and Tax-Exempt Spread shall be based upon the the rating that was last in effect prior to such ratings becoming unavailable. References to the Obligor Rating above are references to rating categories as presently determined by the Rating Agencies and in the event of adoption of any new or changed rating system by any such Rating Agency, including, without limitation, any recalibration of the Obligor Rating in connection with the adoption of a “ global” rating scale, each Obligor Rating from the Rating Agency in question referred to above shall be deemed to refer to the rating category under the new rating system which most closely approximates the applicable rating category as currently in effect. In the event that any Obligor Rating is reduced below Level 5 or is suspended or withdrawn for any credit-related reason, or there shall occur any other Event of Default under this Agreement, the Undrawn Commitment Fee shall automatically increase to a rate equal to the sum of (i) the rate which would apply if any Obligor Rating is at Level 5 plus (ii) three hundred basis points ( 3.00%) per annum. The Authority represents that as of the Closing Date, the Undrawn Commitment Fee, Taxable Applicable Spread and Tax-Exempt Applicable Spread are those rates that are specified above for Level 1 of the related column.
Other Taxes” means all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or under any other Related Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Related Document.
Parity Obligations” means all Debt payable from and secured by Net Revenues on a parity basis with the Revolving Notes.
Participant” means a banking institution that has been granted a participation in the Revolving Notes pursuant to Section 8.12(b) hereof.
Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Title III of Pub. L. 107-56 signed into law October 26, 2001).
Payment Agreement” means a written agreement for the purpose of managing or reducing the City’ s exposure to fluctuations in interest rates or for any other interest rate, investment, cash flow, asset or liability managing purposes, entered into either on a current or forward basis by the City and a Qualified Counterparty in connection with, or incidental to, the entering into of any Parity Obligation, that provides for an exchange of payments based on interest rates, ceilings or floors on such payments, options on such payments, or any combination thereof or any similar device.
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Payment Agreement Receipts” means the amounts required to be paid periodically by the Qualified Counterparty to the City pursuant to a Payment Agreement.
Person” means an individual, limited liability company, a corporation, a partnership, an association, a trust or any other entity or organization, including any Governmental Authority.
Prime Rate” means on any day, the rate of interest per annum then most recently established by the Lender as its “ prime rate.” The “ prime rate” is a rate set by the Lender based upon various factors including the Lender’ s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by the Lender shall take effect at the opening of business on the day specified in the public announcement of such change. If the Lender ceases to establish or publish a prime rate from which the Prime Rate is then determined, the applicable variable rate from which the Prime Rate is determined thereafter shall be instead the prime rate reported in the The Wall Street Journal ( or the average prime rate if a high and low prime rate are therein reported), and the Prime Rate shall change without notice with each change in such prime rate as of the date such change is reported.
Property” means, with respect to any Person, all real, mixed and personal property of such Person, tangible and intangible, wherever located, in which such Person shall have any right, title or interest from time to time.
Qualified Counterparty” means a party ( other than the City) who is the other party to a Payment Agreement and ( 1) ( a) whose senior debt obligations are rated in one of the three 3) highest rating categories of each of the Rating Agencies then rating any Senior Lien Obligations (without regard to any gradations within a rating category), or (b) whose obligations under the Payment Agreement are guaranteed for the entire term of the Payment Agreement by a bond insurer or other institution which has been or whose debt service obligations have been assigned a credit rating in one of the three highest rating categories of each of the Rating Agencies then rating any Senior Lien Obligations (without regard to any gradations within a rating category), and (2) who is otherwise qualified to act as the other party to a Payment Agreement with the City under any applicable laws.
Rating Agency” means Moody’ s, S& P and Fitch, or any successors thereto or additional rating agencies.
Related Documents” means the Loan Documents, Senior Lien Documents, and the Joint Powers Agreement.
Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.
Request for Advance” means any request for an Advance made by the Authority to the Lender, in the form of Exhibit D hereto, executed and delivered on behalf of the Authority by the manual or facsimile signatures of any authorized representative of the Authority.
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Revenues” means all gross income and revenue received or receivable by the City from the ownership or operation of the Electric System, including all rates and charges received by the City for the Electric Service and the other services and facilities of the Electric System, all proceeds of insurance covering business interruption loss relating to the Electric System and all other income and revenue howsoever derived by the City from the ownership or operation of the Electric System or otherwise arising from the Electric System, including all Payment Agreement Receipts, and all income from the deposit or investment of any money in the Electric Revenue Fund, but excluding ( i) proceeds of taxes and (ii) refundable deposits made to establish credit and advances or contributions in aid of construction and line extension fees.
Revolving Loan” has the meaning assigned to such term in Section 2.01(a) hereof.
Revolving Note” means a Taxable Note or a Tax-Exempt Note.
Risk-Based Capital Guidelines” means ( i) the risk-based capital guidelines in effect in the United States of America, including transition rules, and ( ii) the corresponding capital regulations promulgated by regulatory authorities outside the United States of America, including transition rules, and any amendments to such regulations.
S& P” means S& P Global Ratings, a division of S& P Global Inc, and any successor rating agency.
Senior Lien Documents” means the 2008 Installment Sale Agreement, dated as of April 1, 2008, between the City and the Authority, the 2015 Installment Sale Agreement, dated as of December 1, 2015, between the City and the Authority, the Indenture, dated as of March 1, 2017, between the City and U.S. Bank National Association, as Trustee, the Indenture, dated as of March 1, 2018, between the City and U.S. Bank National Association and any other agreements or indentures providing for the payment of installment payments or principal and interest on bonds payable from Net Revenues on a parity with the Senior Lien Obligations.
Senior Lien Obligations” means all Debt of the City payable from and secured by a pledge of and first priority Lien on Net Revenues. For the avoidance of doubt, the Debt evidenced by the obligation to make installment payments and to pay the principal of and interest on bonds required to be paid pursuant the Senior Lien Documents constitute Senior Lien Obligations.
State” means the State of California.
Taxable Date” means the date on which interest on any Tax-Exempt Loan is first includable in gross income of any holder thereof ( including the Lender) as such a date is established pursuant to a Determination of Taxability.
Taxable Gross-Up Rate” means, for each day during a Taxable Period, a rate per annum equal to the product of (i) the interest rate on the Tax-Exempt Note for such day and ( ii) the applicable Taxable Rate Factor.
Taxable Loan” means any Revolving Loan bearing interest at the Taxable Loan Rate.
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Taxable Loan Rate” means a per annum rate of interest, established on each Computation Date and to be effective on the next succeeding LIBOR Index Reset Date, equal to the sum of a) the Applicable Spread plus (b) LIBOR for such LIBOR Index Reset Date. The Taxable Loan Rate shall be rounded upward to the nearest third decimal place.
Taxable Note” has the meaning assigned to such term in Section 2.01(d)(ii) hereof.
Taxable Period” has the meaning assigned to such term in Section 2.06 hereof.
Taxable Rate Factor” means, for each day that the Taxable Gross-Up Rate is determined, the quotient of (i) one divided by (ii) one minus the Maximum Federal Corporate Tax Rate in effect as of such day, rounded upward to the second decimal place.
Taxes” or “ Tax” means all present or future taxes, levies, imposts, duties, deductions, withholdings ( including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, fines, additions to tax or penalties applicable thereto.
Tax-Exempt Loan” means any Revolving Loan bearing interest at the Tax-Exempt Rate.
Tax-Exempt Note” has the meaning assigned to such term in Section 2.01(d)(i) hereof.
Tax-Exempt Rate” means a per annum rate of interest, established on each Computation Date and to be effective on the next succeeding LIBOR Index Reset Date, equal to the sum of (a) the product of (i) LIBOR for such LIBOR Index Reset Date multiplied by (ii) the Applicable Factor, plus (b) the Applicable Spread. The Tax-Exempt Rate shall be rounded upward to the nearest third decimal place.
Termination Fee” means an amount equal to any unpaid portion of the Undrawn Commitment Fee that would have been due from the Closing Date to and including the first anniversary of the Closing Date (October 29, 2021) absent any termination or reduction of the Commitment.
Term Loan” means the term loan advanced to the Authority under the terms and conditions of Section 2.01(i) hereof.
Term Loan Note” has the meaning assigned to such term in Section 2.01(i) hereof.
Term Loan Rate” means the fluctuating per annum rate of interest calculated as follows:
i) for any day commencing on the Maturity Date to and including the ninetieth (90th) day next succeeding the Maturity Date, equal to the Base Rate then in effect, (ii) for any day commencing on the ninety-first (91st) day next succeeding the Maturity Date to and including the one hundred eightieth (180th) day next succeeding the Maturity Date, equal to the Base Rate then in effect plus one percent ( 1.0%), and (iii) for any day commencing on the one hundred eighty-first day next succeeding the Maturity Date and thereafter, equal to the Base Rate then in effect plus two percent
2.0%).
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Transactions” means the extension of credit, the execution and delivery by the Authority and the City of the Loan Documents, the performance by the Authority of the Obligations hereunder and under the other Loan Documents.
Undrawn Commitment Fee” shall mean the Undrawn Commitment Fee as set forth in Obligor Rating Pricing Adjustment. As of the Closing Date, the Undrawn Commitment Fee is equal to 35 basis points.
Section 1.02. Computation of Time Periods. In this Agreement, in the computation of a period of time from a specified date to a later specified date, the word “ from” means “ from and including” and the words “ to” and “ until” each mean “ to but excluding.” Section 1.03. Construction. Unless the context of this Agreement otherwise clearly requires, references to the plural include the singular, to the singular include the plural and to the part include the whole. The word “ including” shall be deemed to mean “ including but not limited to,” and “ or” has the inclusive meaning represented by the phrase “ and/or.” The words “ hereof,” herein,” “ hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. The Section headings contained in this Agreement and the table of contents preceding this Agreement are for reference purposes only and shall not control or affect the construction of this Agreement or the interpretation thereof in any respect. Section, subsection and exhibit references are to this Agreement unless otherwise specified. Any exhibit, schedule or annex attached hereto is incorporated by reference herein and is a constituent part of this Agreement.
Section 1.04. Accounting Terms and Determinations. Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared, in accordance with GAAP. In the event of changes to GAAP which become effective after the Closing Date, the City, Authority, and the Lender agree to negotiate in good faith appropriate revisions of this Agreement so as to perpetuate the meaning and effect of such provisions as originally negotiated and agreed upon.
Section 1.05. Relation to Other Documents; Acknowledgment of Different Provisions of Other Related Documents; Incorporation by Reference. ( a) Nothing in this Agreement shall be deemed to amend, or relieve the City or the Authority of its obligations under, any other Related Document to which it is a party. Conversely, to the extent that the provisions of any Related Document allow the City or the Authority to take or not take certain actions, the City and the Authority nevertheless shall be fully bound by the provisions of this Agreement. b) All references to other documents, including, without limitation, the Related Documents, shall be deemed to include all amendments, restatements, modifications and supplements thereto to the extent such amendment, restatement, modification or supplement is made in accordance with the provisions of such document and this Agreement, as applicable.
Section 1.06. LIBOR Notification. The interest rate on Revolving Loans is determined by reference to the Tax-Exempt Rate or Taxable Loan Rate, which is derived from LIBOR. Section Packet Pg. 657 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 19-
2.15 hereof provides a mechanism for (a) determining an alternative rate of interest if LIBOR is no longer available or in the other circumstances set forth in Section 2.15 hereof, and (b) modifying this Agreement to give effect to such alternative rate of interest. The Lender does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to LIBOR or other rates in the definition of Tax-Exempt Rate or Taxable Loan Rate with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation whether any such alternative, successor or replacement reference rate, as it may or may not be adjusted pursuant to Section 2.15 hereof, will have the same value as, or be economically equivalent to, the Tax-Exempt Rate or Taxable Loan Rate, as applicable.
ARTICLE II
TERMS OF THE REVOLVING COMMITMENT
Section 2.01. Revolving Commitment.
a) Revolving Commitment. Subject to the terms and conditions of this Agreement, the Lender hereby agrees to make advances ( the “ Advances”) to the Authority from time to time up to and including the Commitment Termination Date in an aggregate principal amount not to exceed at any time the Commitment ( the “ Revolving Loan”). The sum of the aggregate principal amount of Tax-Exempt Loans and Taxable Loans at any time outstanding shall not exceed the Commitment in effect at such time. As provided in Section 2.01(d) hereof, the Authority may elect that any such Revolving Loan be either a Tax-Exempt Loan or a Taxable Loan. Revolving Loans may be repaid and the principal amount thereof reborrowed before the Commitment Termination Date, subject to the terms and conditions hereof. b) Making of Advances; Use of Proceeds. Subject to the terms and conditions of this Agreement, the Lender agrees to make Advances from time to time on any Business Day, commencing on the Closing Date and ending on the Commitment Termination Date, in amounts not to exceed at any time outstanding the Commitment. Each Advance requested shall be in a minimum principal amount of $50,000 and the Authority shall not request more than two (2) Advances per calendar month. The proceeds of the Advances shall be used for valid corporate purposes of the Authority; provided that in no event shall any of the proceeds of a Tax-Exempt Loan be used to pay or prepay a Taxable Loan, unless the Authority receives an Approving Opinion of Bond Counsel, which opinion shall be addressed to the Lender. The aggregate amount of all Advances made on any Advance Date shall not exceed the Available Commitment as of such date.
c) Method of Borrowing.
i) Taxable Loans. Upon receipt of a Request for Advance by the Lender not later than 11:30 a.m. New York time on the Business Day which is two (2) Business Days immediately prior to the day of the proposed borrowing, the Lender, subject to the terms and conditions of this Agreement, shall be required to make an Advance by 12:30 p.m. New York time on such day of Packet Pg. 658 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 20-
the proposed borrowing for the account of the Authority in an amount equal to the amount of the requested borrowing. Each Request for Advance in respect of a Taxable Loan shall be signed by an Authority Representative and shall specify that the requested Advance shall be a Taxable Loan.
Each Advance shall be made by the Lender by wire transfer of immediately available funds to the Authority in accordance with written instructions provided by the Authority. ii) Tax-Exempt Loans. Upon receipt of a Request for Advance by the Lender not later than 11:30 a.m. New York time on the Business Day which is two (2) Business Days immediately prior to the day of the proposed borrowing, the Lender, subject to the terms and conditions of this Agreement, shall be required to make an Advance by 12:30 p.m. New York time on such day of the proposed borrowing for the account of the Authority in an amount equal to the amount of the requested borrowing. Each Request for Advance in respect of a Tax-Exempt Loan shall be signed by an Authority Representative and shall specify that the requested Advance shall be a Tax-Exempt Loan. Each Advance shall be made by the Lender by wire transfer of immediately available funds to Authority in accordance with written instructions provided by the Authority. d) Revolving Loans Evidenced by Notes. ( i) The Tax-Exempt Loans shall be evidenced by a promissory note of the Authority to the Lender in substantially the form set forth in Exhibit A hereto ( as amended or supplemented from time to time, the “ Tax-Exempt Note”) to be issued on the Closing Date, payable to the Lender in a principal amount up to the Commitment on the Closing Date and otherwise duly completed. All Tax-Exempt Loans made by the Lender and all payments and prepayments made on account of principal thereof shall be recorded by the Lender on the schedule ( or a continuation thereof) attached to the Tax-Exempt Note, it being understood, however, that failure by the Lender to make any such endorsement shall not affect the obligations of the Authority hereunder or under the Tax-Exempt Note with respect to unpaid principal and interest on any Tax-Exempt Loan. Each entry on the Tax-Exempt Note with respect to a Tax-Exempt Loan schedule shall reflect the applicable principal amount and the applicable interest rate.
ii) The Taxable Loans shall be evidenced by a promissory note of the Authority to the Lender in substantially the forms set forth in Exhibit B hereto (as amended or supplemented from time to time, the “ Taxable Note”) to be issued on the Closing Date, payable to the Lender in a principal amount up to the Commitment on the Closing Date and otherwise duly completed. All Taxable Loans made by the Lender and all payments and prepayments made on account of principal thereof shall be recorded by the Lender on the schedule ( or a continuation thereof) attached to the Taxable Note, it being understood, however, that failure by the Lender to make any such endorsement shall not affect the obligations of the Authority hereunder or under the Taxable Note with respect to unpaid principal and interest on any Taxable Loan. Each entry on the Taxable Note with respect to a Taxable Loan schedule shall reflect the applicable principal amount and the applicable interest rate.
e) Repayment of Principal on Revolving Loans. The principal of each Revolving Loan shall be due in full on the Commitment Termination Date. f) Interest on Revolving Loans. Each Revolving Loan made or maintained by the Lender shall bear interest computed on the basis of a year of 360 days and actual days elapsed, on Packet Pg. 659 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 21-
the unpaid principal amount thereof at a rate per annum equal to the Tax-Exempt Rate or Taxable Loan Rate, as applicable. Interest shall be payable in arrears on the first Business Day of each calendar month (each such date, an “ Interest Payment Date”), commencing on the first such date following the date of the relevant Advance. Interest paid on each Interest Payment Date shall equal interest accrued during the preceding calendar month. The Tax-Exempt Rate and Taxable Loan Rate shall be determined as provided in Section 2.07 hereof. g) Prepayment of Revolving Loans. Subject to Section 2.12 hereof, the Authority may prepay any Revolving Loan, in whole or in part, on an Interest Payment Date, provided at least three ( 3) days’ written notice is provided by the Authority to the Lender. All prepayments of principal shall include accrued interest to the date of prepayment and all other amounts due pursuant to this Agreement.
h) Default Interest. Subject to subsection ( i) below, from and after the Maturity Date, or such earlier date as all principal owing hereunder becomes due and payable by acceleration or otherwise, or at Lender’ s option upon the occurrence, and during the continuance of an Event of Default, the outstanding principal balance of the Loans under this Agreement shall bear interest at an increased rate per annum ( computed on the basis of a 360-day year, actual days elapsed) equal to the Default Rate.
i) Advance of Term Loan. If (i) no Default or Event of Default has occurred and is continuing, and ( ii) all representations and warranties set forth in Article IV are true and correct, in each case as of the Maturity Date, which representations and warranties ( other than as provided in Section 4.02(j) hereof) shall be deemed remade as of the Maturity Date, then any principal amount of Revolving Loans remaining unpaid on the Maturity Date shall convert to a term loan the “ Term Loan”) and the proceeds thereof shall be used to pay in full the Revolving Loans, which Term Loan shall become payable upon the earlier to occur of (x) the third anniversary of the Maturity Date and ( y) the date on which any Senior Lien Obligation or Parity Obligation is issued ( the “ Term Loan Maturity Date”). Any Revolving Loans not converted to a Term Loan shall be payable on the Maturity Date and shall bear interest at the Default Rate. Subject to the condition set forth in the immediately preceding sentence, the Term Loan shall be payable in twelve (12) equal, quarterly principal installments on the first Business Day of each January, April, July and October ( each an “ Installment Date”), beginning on the first of such dates to occur following the Maturity Date. The Term Loan shall be evidenced by a promissory note of the Authority to the Lender in substantially the form set forth in Exhibit C hereto ( as amended or supplemented from time to time, the “ Term Loan Note”), which Term Loan Note shall be issued on the Closing Date, payable to the Lender in a principal amount up to the Commitment on the Term Loan Maturity Date and otherwise duly completed, so long as the conditions set forth in this Section 2.01(i) are satisfied. As long as no Event of Default has occurred or is continuing, the Term Loan shall accrue interest at the Term Loan Rate and shall be payable monthly in arrears on the first Business Day of each month, beginning on the first of such dates to occur following the Maturity Date. Subject to Section 2.12 hereof, any amount of principal outstanding under the Term Loan may be prepaid at any time without penalty.
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Section 2.02. Reserved.
Section 2.03. Increased Costs.
a) Increased Costs Generally. If any Change of Law shall:
i) impose, modify or deem applicable any reserve, liquidity ratio, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or advances, loans or other credit extended or participated in by, the Lender or any Participant;
ii) subject to the Lender or any Participant to any Taxes of any kind whatsoever with respect to this Agreement, or change the basis of taxation of payments to the Lender or such Participant in respect thereof ( except for Indemnified Taxes covered by Section 2.04 hereof and the imposition of, or any change in the rate of any Excluded Tax payable by the Lender or any Participant); or
iii) impose on the Lender or any Participant any other condition, cost or expense affecting this Agreement;
and the result of any of the foregoing shall be to increase the cost to the Lender or such Participant related to issuing or maintaining this Agreement, or to reduce the amount of any sum received or receivable by the Lender or such Participant hereunder ( whether of principal, interest or any other amount) then, upon written request of the Lender or such Participant, the Authority shall promptly pay to the Lender or such Participant, as the case may be, such additional amount or amounts as will compensate the Lender or such Participant, as the case may be, for such additional costs incurred or reduction suffered.
b) Capital Requirements. If the Lender or any Participant determines that any Change of Law affecting the Lender or such Participant or the Lender’ s or such Participant’ s parent or holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducing the rate of return on the Lender’ s or such Participant’ s capital or liquidity or the capital or liquidity of such Lender’ s or such Participant’ s parent or holding company holding, if any, as a consequence of this Agreement, or for maintaining this Agreement, to a level below that which the Lender or such Participant or the Lender’ s or such Participant’ s parent or holding company could have achieved but for such Change of Law (taking into consideration the Lender’ s or such Participant’ s policies and the policies of the Lender’ s or such Participant’ s parent or holding company with respect to capital adequacy or liquidity), then from time to time upon written request of the Lender or such Participant the Authority shall promptly pay to the Lender or such Participant, as the case may be, such additional amount or amounts as will compensate the Lender or such Participant or the Lender’ s or such Participant’ s parent or holding company for any such reduction suffered.
c) Certificates for Reimbursement. A certificate of the Lender or a Participant setting forth the amount or amounts necessary to compensate the Lender or any such Participant or the Lender’ s or any such Participant’ s parent or holding company, as the case may be, as specified in Packet Pg. 661 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 23-
paragraph ( a) or ( b) of this Section and delivered to the Authority, shall be conclusive absent manifest error. The Authority shall pay the Lender or any such Participant, as the case may be, the amount shown as due on any such certificate within ten (10) days after receipt thereof. d) Delay in Requests. Failure or delay on the part of the Lender or any such Participant to demand compensation pursuant to this Section shall not constitute a waiver of the Lender’ s or any such Participant’ s right to demand such compensation; provided, however, the Authority shall not be required to compensate the Bank and/or any Participant pursuant to this Section 2.03, (i) in an amount greater than that which it would have been required to pay if the Bank had not granted any participation in the Loans, or (ii) for any increased costs incurred or reductions suffered more than six (6) months prior to the date that the Bank or any Participant, as the case may be, notifies the Authority of the Change in Law giving rise to such increased costs or reductions, and the Bank’ s or any Participant’ s intention to claim compensation therefor ( except that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six (6) month period referred to above shall be extended to include the period of retroactive effect thereof). e) Survival. Without prejudice to the survival of any other agreement of the Authority hereunder, the agreements and obligations of the Authority contained in this Section shall survive the termination of this Agreement and the payment in full of the Obligations of the Authority thereunder and hereunder.
Section 2.04. Net of Taxes, Etc. ( a) Any and all payments to the Lender by the Authority hereunder shall be made free and clear of and without withholding or deduction for any and all Indemnified Taxes. If the Authority shall be required by law to withhold or deduct any Indemnified Taxes imposed by the United States or any political subdivision thereof from or in respect of any sum payable hereunder to the Lender, then (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.04), the Lender receives an amount equal to the sum it would have received had no such deductions been made, ( ii) the Authority shall make such deductions and ( iii) the Authority shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law. If the Authority shall make any payment under this Section 2.04 to or for the benefit of the Lender with respect to Indemnified Taxes and if the Lender shall claim any credit or deduction for such Indemnified Taxes against any other taxes payable by the Lender to any taxing jurisdiction in the United States then the Lender shall pay to the Authority an amount equal to the amount by which such other taxes are actually reduced; provided, that the aggregate amount payable by the Lender pursuant to this sentence shall not exceed the aggregate amount previously paid by the Authority with respect to such Indemnified Taxes. In addition, the Authority agrees to pay any present or future stamp, recording or documentary taxes and any other excise or property taxes, charges or similar levies that arise under the laws of the United States of America or any state of the United States from any payment made hereunder or otherwise with respect to this Agreement ( hereinafter referred to as Other Taxes”). The Lender shall provide to the Authority within a reasonable time a copy of any written notification it receives with respect to Indemnified Taxes or Other Taxes owing by the Authority to the Lender hereunder; provided, that the Lender’ s failure to send such notice shall not relieve the Authority of its obligation to pay such amounts hereunder.
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b) The Authority shall, to the fullest extent permitted by law and subject to the provisions hereof, pay the Lender for the full amount of Indemnified Taxes and Other Taxes including any Indemnified Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 2.04 paid by the Lender or any liability ( including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally asserted; provided that the Authority shall not be obligated to pay the Lender for any penalties, interest or expenses relating to Indemnified Taxes or Other Taxes arising from the Lender’ s gross negligence or willful misconduct. The Lender agrees to give notice to the Authority of the assertion of any claim against the Lender relating to such Indemnified Taxes or Other Taxes as promptly as is practicable after being notified of such assertion; provided, that the Lender’ s failure to notify the Authority promptly of such assertion shall not relieve the Authority of its obligation under this Section 2.04. Payments by the Authority pursuant to this subsection ( b) shall be made within thirty (30) days from the date the Lender makes written demand therefor, which demand shall be accompanied by a certificate describing in reasonable detail the basis thereof. The Lender agrees to repay to the Authority any refund including that portion of any interest that was included as part of such refund) with respect to Taxes or Other Taxes paid by the Authority pursuant to this Section 2.04 received by the Lender for Indemnified Taxes or Other Taxes that were paid by the Authority pursuant to this Section 2.04 and to contest, with the cooperation and at the expense of the Authority, any such Indemnified Taxes or Other Taxes which the Lender or the Authority reasonably believes not to have been properly assessed.
c) Within thirty ( 30) days after the date of any payment of Indemnified Taxes by the Authority, the Authority shall furnish to the Lender the original or a certified copy of a receipt evidencing payment thereof.
d) Without prejudice to the survival of any other agreement of the Authority hereunder, the agreements and obligations of the Authority contained in this Section shall survive the termination of this Agreement and the payment in full of the Obligations of the Authority thereunder and hereunder.
Section 2.05. Excess Interest. ( i) If the amount of interest payable for any period in accordance with the terms hereof exceeds the amount of interest that would be payable for such period had interest for such period been calculated at the maximum interest rate permitted by Applicable Law, then interest for such period shall be payable in an amount calculated at the maximum interest rate permitted by Applicable Law.
ii) Any interest that would have been due and payable for any period but for the operation of the immediately preceding subclause (i) shall accrue and be payable as provided in this subclause (ii) and shall, less interest actually paid to the applicable Lender for such period, constitute the “ Excess Interest Amount.” If there is any accrued and unpaid Excess Interest Amount as of any date, then the principal amount with respect to which interest is payable shall bear interest at the maximum interest rate permitted by Applicable Law until payment to the Lender of the entire Excess Interest Amount.
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iii) Notwithstanding the foregoing, on the date on which no principal amount hereunder remains unpaid, to the extent possible without violating Applicable Laws, the Authority shall pay to the Lender a fee equal to any accrued and unpaid Excess Interest Amount.
Section 2.06. Taxable Date. ( i) In the event a Taxable Date occurs, the Authority hereby agrees to pay to the Lender or any Participant within 30 days of receipt of notice from a Lender 1) an amount equal to the difference between ( A) the amount of interest that would have been paid to the Lender, or such Participant, as applicable, on any Tax-Exempt Loans during the period for which interest on such Tax-Exempt Loans is includable in the gross income of the Lender or such Participant, as applicable, if such Tax-Exempt Loans had borne interest at the Taxable Grossup Rate, beginning on the Taxable Date ( the “ Taxable Period”), and ( B) the amount of interest actually paid to the Lender or such Participant, as applicable, during the Taxable Period, and (2) an amount equal to any interest, penalties or charges owed by the Lender, or any Participant, as applicable, as a result of interest on the Tax-Exempt Loans becoming includable in the gross income of the Lender or such Participant, as applicable, together with any and all reasonable attorneys’ fees, court costs, or other out-of-pocket costs incurred by the Lender or such Participant, as applicable, in connection therewith.
ii) Subject to the provisions of clauses ( iii) and ( iv) below, the Lender shall afford the Authority the opportunity, at the Authority’ s sole cost and expense, to contest ( 1) the validity of any amendment to the Code which causes the interest on such Tax-Exempt Loans to be includable in the gross income of the Lender or any Participant or (2) any challenge to the validity of the tax exemption with respect to the interest on the Tax-Exempt Loans, including the right to direct the necessary litigation contesting such challenge ( including administrative audit appeals). To the extent any such contest results in a determination that no Taxable Date occurred with respect to a Tax-Exempt Loan or any portion thereof, or that the relevant Taxable Date occurred later than previously assumed for purposes hereof, the Lender shall refund to Authority any amount paid to the Lender by the Authority pursuant to the provisions of clause (i) above in excess of the amount that would have been payable, if any, if no Taxable Date had occurred or the relevant Taxable Date occurred later than previously assumed, as applicable.
iii) As a condition precedent to the exercise by the Authority of its right to contest set forth in clause (ii) above, the Authority shall, on demand, immediately reimburse the Lender or such Participant, as applicable, for any and all expenses (including reasonable attorneys’ fees for services that may be required or desirable) that may be incurred by the Lender or such Participant, as applicable, in connection with any such contest, and shall, on demand, immediately reimburse the Lender or such Participant, as applicable, for any and all penalties or other charges payable by the Lender or such Participant, as applicable, for failure to include such interest in its gross income. iv) Upon the occurrence of a Taxable Date, subject to Section 2.12 hereof, the Authority may choose to repay the outstanding principal amount of Tax-Exempt Loans with the proceeds of a Taxable Loan.
v) The obligations of the Authority and the Lender under this Section 2.06 shall survive the termination of this Agreement.
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Section 2.07. Determination of Tax-Exempt Rates and Taxable Loan Rates. a) Tax-Exempt Loans shall bear interest at the Tax-Exempt Rate. The Lender shall determine the Tax-Exempt Rate on each Computation Date, to become effective on the next LIBOR Index Reset Date.
b) Taxable Loans shall bear interest at the Taxable Loan Rate. The Lender shall determine the Taxable Loan Rate on each Computation Date, to become effective on the next LIBOR Index Reset Date.
Section 2.08. Pledge of Authority Revenues and Obligations Absolute. ( a) The Authority hereby pledges the Authority Revenues to secure the payment of the principal of, premium, if any and interest on the Revolving Notes and the payment of all other amounts payable by the Authority under this Agreement. This pledge shall constitute a lien on and security interest in such assets and shall attach, be perfected and be valid and binding from and after delivery of the Revolving Notes, without any physical delivery thereof or further act. b) In addition, the Authority hereby grants a security interest in and assigns to the Lender all of the right, title and interest of the Authority in the Installment Sale Agreement as security for the repayment of all amounts payable under the Revolving Notes and under this Agreement. The Lender shall be entitled to and shall collect and receive all of the Authority Revenues, and any Authority Revenues collected or received by the Authority shall be deemed to be held, and to have been collected or received, by the Authority as the agent of the Lender and shall forthwith be paid by the Authority to the Lender. The Lender shall also be entitled to take all steps, actions and proceedings reasonably necessary in its judgment to enforce all of the rights of the Authority and all of the obligations of the City under the Installment Sale Agreement. c) The City hereby acknowledges the foregoing pledge of the Authority Revenues and all of the rights, title and interest of the Authority in the Installment Sale Agreement.
The City agrees to pay the Authority Revenues to the Lender to the extent amounts are owed hereunder and/or under the Revolving Notes. None of the obligations of the Authority hereunder or under the Revolving Notes shall be a debt of the City within the meaning of any constitutional, statutory or charter limitation upon the creation of general obligation indebtedness of the City, and the Authority shall not be liable for the payment of any amounts hereunder or under the Revolving Notes out of any money of the Authority other than the Authority Revenues. d) The payment obligations of the Authority under this Agreement shall be unconditional and irrevocable obligations of the Authority, payable solely from Authority Revenues and paid strictly in accordance with the terms of this Agreement under all circumstances, including without limitation the following: (i) any lack of validity or enforceability of the Related Documents or any provision thereof; (ii) any amendment or waiver of or any consent to departure from all or any of the Related Documents; (iii) the existence of any claim, set off, defense or other right which the Authority may have at any time against the Lender, or any other Person, whether in connection with the Related Documents, the transactions contemplated herein or therein or any unrelated transaction; or (iv) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
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Section 2.09. Fees.
a) Undrawn Commitment Fee. The Authority shall pay to the Lender a per annum fee equal to the Undrawn Commitment Fee ( computed on the basis of a 360-day year, actual days elapsed) on the average daily Available Commitment, which fee shall be due and payable by the Authority quarterly in arrears on the first Business Day of each April, July, October and January of each calendar year (beginning on the first such date to occur after the Closing Date) and on the Commitment Termination Date, or such earlier date on which the Commitment may be terminated in accordance with the terms of this Agreement.
b) Reserved.
c) Termination or Reduction Fee. The Authority shall pay to the Lender a Termination Fee in connection with a termination or reduction of the Commitment prior to the first anniversary of the Closing Date, in an amount equal to the applicable Termination Fee, payable on the date of such termination or reduction; provided that, anything herein to the contrary notwithstanding, no Termination Fee shall be payable by the Authority if (i) the Commitment is terminated following a request by the Lender for increased costs pursuant to Section 2.03. hereof, or (ii) such termination is the result of the interest rate on Revolving Loans being converted to the Alternate Rate pursuant to Section 2.14 or 2.15 hereof.
d) Amendment, Consent or Waiver Fee. Upon each amendment hereof, consent or waiver hereunder or under any Loan Document, the Authority shall pay or cause to be paid attorneys’ fees and expenses, if any, incurred by the Lender in processing such amendment, consent or waiver and a fee to the Lender in a minimum amount of $2,500. e) Costs, Expenses and Taxes. The Authority will promptly pay on demand ( i) the reasonable fees, costs and expenses of the Lender incurred in connection with the preparation, negotiation, execution and delivery of this Agreement, the Revolving Notes and the other Loan Documents, (ii) the fees (in an amount not to exceed $45,000) and disbursements of Chapman and Cutler LLP, counsel to the Lender, incurred in connection with the preparation, execution, filing and administration and delivery of this Agreement and the other Loan Documents, ( iii) the reasonable fees and disbursements of counsel or other reasonably required consultants to the Lender with respect to advising the Lender as to the rights and responsibilities under this Agreement and the other Loan Documents after the occurrence of any Default or alleged Default hereunder, or an Event of Default, (iv) all reasonable costs and expenses, if any, in connection with any waiver or amendment of, or the giving of any approval or consent under, or any response thereto or the enforcement of this Agreement, the other Loan Documents and any other documents which may be delivered in connection herewith or therewith, including in each case the reasonable fees and disbursements of counsel to the Lender or other reasonably required consultants and v) any amounts advanced by or on behalf of the Lender to the extent required to cure any Default, Event of Default or event of nonperformance hereunder or any Loan Document, together with interest at the Default Rate. In addition, the Authority shall pay any and all stamp taxes, transfer taxes, documentary taxes, and other taxes and fees payable or determined to be payable in connection with the execution and delivery of this Agreement (other than taxes based on the net income of the Lender) and agrees, to extent permitted by applicable law and public policy, to Packet Pg. 666 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 28-
indemnify and hold the Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying, or omission to pay, such taxes and fees, including interest and penalties thereon. In addition, the Authority agrees to pay, after the occurrence of a Default, alleged Default or an Event of Default, all reasonable costs and expenses ( including attorneys’ fees and costs of settlement) incurred by the Lender in enforcing any obligations or in collecting any payments due from the Authority hereunder by reason of such Default, alleged Default or Event of Default or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a “ workout” or of any collection, insolvency, bankruptcy proceedings or other enforcement proceedings resulting therefrom.
Section 2.10. Extension of Maturity Date. The Authority may request an extension of the Maturity Date in writing in the form of Exhibit E hereto not more than one hundred twenty ( 120) days prior to the then current Maturity Date. The Lender will make reasonable efforts to respond to such request within sixty ( 60) days after receipt of all information necessary, in the Lender’ s judgment, to permit the Lender to make an informed credit decision. If the Lender fails to definitively respond to such request within such sixty (60) day period, the Lender shall be deemed to have refused to grant the extension requested. The Lender may, in its sole and absolute discretion, decide to accept or reject any such proposed extension and no extension shall become effective unless the Lender shall have consented thereto in writing in the form of Exhibit F hereto or otherwise. The Lender’ s consent, if granted, shall be conditioned upon the preparation, execution and delivery of documentation in form and substance satisfactory to the Lender (which may include, but shall not be limited to the delivery of a “ no adverse effect opinion” of Bond Counsel to the Lender with respect to the tax-exempt status of the Revolving Notes).
Section 2.11. Payments Due on Non-Business Days. In any case where the date of any payment due shall not be a Business Day, then payment need not be made on such date but shall be made on the next succeeding Business Day, with the same force and effect as if made on the date due, with interest to accrue to the date of such payment.
Section 2.12. Breakage Expenses. In the event the Lender shall incur any loss, cost, or expense ( including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired or contracted to be acquired by the Lender or the relending or reinvesting of such deposits or other funds or amounts paid or prepaid to the Lender) as a result of any prepayment of the Revolving Loans, including any loss, cost, or expense resulting from prepayment on a day other than an Interest Payment Date (the Breakage Expenses”), for any reason, whether before or after a Default, and whether or not such payment is required by any provision of this Agreement or the Related Documents, then upon the demand of the Lender, the Authority shall pay to the Lender a prepayment, redemption or conversion premium, as applicable, in such amount as will reimburse the Lender for such Breakage Expenses. If the Lender requests such Breakage Expenses it shall provide to the Authority a certificate setting forth the computation of the Breakage Expenses in reasonable detail and such certificate shall be conclusive if reasonably determined.
Section 2.13. Reduction and Termination. (a) Subject to the provisions of Section 2.09(c) hereof, the Available Commitment shall be reduced from time to time as requested by the Authority within ten ( 10) days of the Authority’ s written notice to the Lender requesting such Packet Pg. 667 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 29-
reduction in the form of Exhibit G hereto; provided, that (i) each such reduction amount shall be in an amount equal to $1,000,000 or an integral multiple thereof, and ( ii) any reduction in the Available Commitment shall not be effective until the Lender delivers to the Authority a notice in the form attached hereto as Exhibit H reflecting such reduction. b) Subject to the provisions of Section 2.09(c) hereof, the Authority may at any time and at its sole option terminate the Commitment upon ten ( 10) Business Days’ prior written notice to the Lender in the form of Exhibit G hereto. As a condition to any such termination, the Authority shall pay or cause to be paid all Obligations due and owing to the Lender at such time.
Section 2.14. Illegality. If the Lender determines that any law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for the Lender to make, maintain or fund Revolving Loans whose interest is determined by reference to LIBOR, or to determine or charge interest rates based upon LIBOR, or any Governmental Authority has imposed material restrictions on the authority of the Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by the Lender to the Authority, any obligation of the Lender to make Revolving Loans with reference to LIBOR shall be suspended until the Lender notifies the Authority that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the Authority shall, upon demand from the Lender convert the interest on all Revolving Loans to Revolving Loans that bear interest at the Alternate Rate, either on the LIBOR Index Reset Date relating to such Revolving Loans, if the Lender may lawfully continue to maintain such Advances until such day, and if the Lender may not lawfully continue to maintain Revolving Loans through the LIBOR Index Reset Date therefor, then immediately upon demand. Upon any such conversion, the Authority shall also pay accrued interest on the amount so converted on the date of such conversion.
Section 2.15. Adequacy of Interest Rate.
a) Notwithstanding anything to the contrary in this Agreement or any other Related Document, but in any event subject to Sections 2.05 and 2.07 hereof, if the Lender determines ( which determination shall be conclusive absent manifest error) that:
i) deposits of a type and maturity appropriate to match fund Revolving Loans bearing interest at the Taxable Loan Rate or Tax- Exempt Rate are not available to the Lender in the relevant market, or
ii) the Taxable Loan Rate or Tax-Exempt Rate applicable to Revolving Loans is not ascertainable or available ( including, without limitation, because the applicable Reuters Screen ( or on any successor or substitute page on such screen) is unavailable) or does not adequately and fairly reflect the cost of making Revolving Loans at the Taxable Loan Rate or Tax- Exempt Rate, then the Lender shall suspend the availability of the Taxable Loan Rate or Tax- Exempt Rate and require any affected Revolving Loans be repaid or converted to bearing interest at the Alternate Rate.
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b) Notwithstanding the foregoing or anything to the contrary in this Agreement or any other Related Document, but in any event subject to Sections 2.05 and 2.07 hereof to the extent applicable, if the Lender determines (which determination shall be conclusive absent manifest error) that any one or more of the following ( each, a “ Benchmark Transition Event”) has occurred:
i) the circumstances set forth in Section 2.15(a)(ii) hereof have arisen including, without limitation, a public statement or publication of information by the regulatory supervisor for the administrator of LIBOR described in clause (ii) of this Section 2.15 (b) announcing that LIBOR is no longer representative) and such circumstances are unlikely to be temporary;
ii) ICE Benchmark Administration (or any Person that has taken over the administration of LIBOR for deposits in Dollars that is acceptable to the Lender) discontinues its administration and publication of LIBOR for deposits in Dollars; iii) a public statement or publication of information by or on behalf of the administrator of LIBOR described in clause ( ii) of this Section 2.15(b) announcing that such administrator has ceased or will cease as of a specific date to provide LIBOR (permanently or indefinitely); and provided that, at the time of such statement, there is no successor administrator that is acceptable to the Lender that will continue to provide LIBOR after such specified date; iv) a public statement by the supervisor for the administrator of LIBOR described in clause (ii) of this Section 2.15(b), the U.S. Federal Reserve System, an insolvency official with jurisdiction over such administrator for LIBOR, a resolution authority with jurisdiction over such administrator for LIBOR; or a court or an entity with similar insolvency or resolution authority over such administrator for LIBOR, which states that such administrator of LIBOR has ceased or will cease as of a specific date to provide LIBOR ( permanently or indefinitely); and provided that, at the time of such statement or publication, there is no successor administrator that is acceptable to the Lender that will continue to provide LIBOR after such specified date; or
v) syndicated or bilateral credit facilities are being executed or amended, as the case may be, to incorporate or adopt a new benchmark interest rate to replace LIBOR for deposits in Dollars,
then the Lender may amend this Agreement to replace LIBOR with a Benchmark Replacement. Notwithstanding anything to the contrary in Section 8.03, any such amendment with respect to a Benchmark Transition Event will become effective without any further action or consent of the Authority or the City at 5:00 p.m. ( New York City time) on the fifth ( 5th) Business Day after the Lender has provided such proposed amendment to the Authority and the City. No replacement of LIBOR with a Benchmark Replacement pursuant to this Section 2.15(b) will occur prior to the date set forth in the applicable amendment.
Packet Pg. 669 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 31-
In connection with the implementation of a Benchmark Replacement, the Lender will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Related Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of the Authority and the City.
The Lender will promptly notify the Authority and the City of (i) any occurrence of a Benchmark Transition Event (other than pursuant to clause (v) of this Section 2.15(b)), ii) the implementation of any Benchmark Replacement. and (iii) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Lender pursuant to this Section 2.15(b), including any determination with respect to a tenor, rate or adjustment or of the occurrence or nonoccurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in the Lender’ s sole discretion and without consent from the Authority or the Corporation, except, in each case, as expressly required pursuant to this Section 2.15(b).
Upon notice to the Authority and the City by the Lender in accordance with Section
8.04 hereof of the commencement of a Benchmark Unavailability Period and until a Benchmark Replacement is determined in accordance with this Section 2.15(b), if any Request for Advance requests an Advance by the Lender bearing interest at the Taxable Loan Rate or Tax-Exempt Rate, such request may be revoked by the Authority and if not revoked any Advance made by the Lender pursuant to such Request for Advance shall bear interest at the Alternate Rate.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.01. Documentary Requirements for Agreement to Extend Credit. The obligation of the Lender to extend credit as contemplated by this Agreement is subject to the conditions precedent that the Lender shall have received, on or before the Closing Date, the items listed below in this Section, each dated and in form and substance as is satisfactory to the Lender and its counsel. a) A true and correct copy of the resolution approving the execution, delivery and performance of this Agreement and the Related Documents, certified by a duly authorized officer of the Authority and/or the City, as applicable, on the Closing Date, which certificate shall state that such resolution has not been amended, repealed or rescinded, and is in full force and effect on the Closing Date; b) Executed copies of each of the Related Documents;
c) A certificate by an officer of each of the Authority and the City certifying the names and signatures of the persons authorized to sign, on behalf of the City and the Packet Pg. 670 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 32-
Authority, the Loan Documents to which it is a party and the other documents to be delivered by it hereunder or thereunder;
d) An opinion of counsel to the City and the Authority; e) An opinion of Bond Counsel;
f) Written confirmation of the Obligor Ratings as of the Closing Date; g) A certificate signed by the Authority and the City, stating that on and as of the Closing Date (i) the Authority and the City are each in compliance with all of the terms and provisions of the Related Documents; ( ii) each representation and warranty on the part of each of the City and the Authority contained in the Related Documents is true and correct as though made on and as of the Closing Date; ( iii) no Default or Event of Default has occurred and is continuing or would result from the execution or performance of the Related Documents to which the City or the Authority is a party; and (iv) no petition by or against the City or the Authority has at any time been filed under the United States Bankruptcy Code or under any similar Law;
h) Payment of the reasonable fees and expenses of the Lender and counsel to the Lender incurred in connection with the transactions contemplated by the Loan Documents, subject to the limitations otherwise provided herein; and i) Such other instruments, documents and opinions as the Lender shall reasonably require to comply with the provisions of the Related Documents and the requirements of any Governmental Authority to which the Lender, the City or the Authority is subject.
Section 3.02. Credit Requirements. Prior to the Closing Date, the Lender shall have determined, in its sole discretion, based in part upon the information and reports submitted by the City or the Authority, that the City and the Authority has met the Lender’ s credit requirements.
Section 3.03. Conditions Precedent to Each Advance Hereunder. The obligation of the Lender to make an Advance hereunder shall be subject to (a) receipt by the Lender, at least two 2) Business Days prior to the date the Advance is to be funded, of a duly completed Request for Advance, which shall include the following certifications: (i) each representation and warranty on the part of the City and the Authority contained in the Loan Documents is true and correct as though made on and as of the date of the Advance; provided, that with respect to Section 4.01(e),
4.02(e) and 4.02(i), such representations and warranties shall be true and correct as of the Closing Date; provided, further, that with respect to Section 4.02(j), such representation and warranty shall be deemed to refer to the most recent financial statements delivered pursuant to Section 5.02(a)(i) hereof; and (ii) no Default or Event of Default has occurred and is continuing or would result from funding the Advance, and (b) if the Advance is in respect of a Tax-Exempt Loan, (i) satisfaction of the condition that none of the City, the Authority or the Lender shall have received written notice from Bond Counsel to the effect that the tax opinion delivered pursuant to Section 3.04 hereof may no longer be relied upon, and ( ii) receipt by the Lender of a copy of a completed Packet Pg. 671 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 33-
Form 8038-G to be filed by the City and the Authority, but only in the event that a new Form 8038- G is required by Bond Counsel.
Section 3.04. Conditions Precedent to the Initial Tax-Exempt Loan. The obligation of the Lender to make an Advance hereunder relating to the making of the initial Tax-Exempt Loan hereunder shall be subject to receipt by the Lender, at least two (2) Business Days prior to the date such Advance is to be funded, of (a) a duly completed Request for Advance in the form required by Section 3.03 hereof, ( b) a tax opinion of Bond Counsel with regard to interest on each TaxExempt Loan made or to be made hereunder, in form and substance satisfactory to the Lender, and c) a copy of a completed Form 8038-G to be filed by the City and the Authority.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Authority. The Authority represents and warrants that:
a) Organization and Powers. The Authority (a) is a joint exercise of powers authority duly formed and existing under the Joint Powers Agreement and the Act, (b) has all powers and all material governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted, (c) has all required power and authority to execute, deliver and perform its obligations under this Agreement and the Loan Documents to which it is a party and ( d) is licensed or qualified to do business in each jurisdiction where the ownership of property or the conduct of its business requires such qualifications.
b) Authorization; Contravention. The adoption, execution, delivery and performance by the Authority of the Loan Documents to which it is a party and the making of the borrowings hereunder are within the Authority’ s power and authority, have been duly authorized by all necessary action by the Authority and do not contravene, or result in the violation of or constitute a default under, any provision of the Constitution of the State of California or any applicable law or regulation, or any order, rule or regulation of any court, governmental agency or instrumentality or any agreement, resolution or instrument to which the Authority is a party or by which it or any of its property is bound. c) Governmental Consent or Approval. No authorization, consent, approval, permit, license, exemption of or filing or registration with, any court or governmental department, commission, board, bureau, agency or instrumentality is or will be necessary for the valid execution, delivery or performance by the Authority of the Loan Documents to which it is a party except such consents, authorizations, orders and approvals ( copies of which have been furnished to the Lender) as have been obtained, were validly issued and are in full force and effect.
d) Binding Effect. This Agreement and each Revolving Note each have been or will be duly executed by the Authority and delivered in accordance with this Agreement Packet Pg. 672 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 34-
and the Loan Documents. Each of the Loan Documents to which the Authority is a party has been duly executed and delivered by or on behalf of the Authority. Each of the Loan Documents to which the Authority is a party constitute valid and binding obligations of the Authority enforceable in accordance with their respective terms against the Authority, except as such enforceability may be limited to (i) bankruptcy, insolvency, reorganization, or similar laws affecting creditors’ rights generally, ( ii) general principles of equity, iii) the exercise of judicial discretion in appropriate cases, and (iv) the limitations on legal remedies against joint powers authorities in the State of California. e) Litigation. As of the Closing Date, except as disclosed in writing by the Authority to the Lender prior to the Closing Date, there are no actions, suits or proceedings pending with service of process accomplished or, to the best of the knowledge of the Authority, threatened in writing, against or affecting the Authority or relating to the Loan Documents, in any court or before or by any governmental department, agency or instrumentality in which there is a reasonable possibility of any adverse decision which could have a Material Adverse Effect ( together with the litigation described in Section 4.02(e), “ Material Litigation”).
f) Compliance; No Default. No “event of default” specified in any of the Loan Documents to which the Authority is a party and no event which, with the giving of notice or lapse of time or both would become such an event of default, has occurred and is continuing.
g) Immunity. The Authority is not entitled to claim immunity on the grounds of sovereignty or other similar grounds ( including, without limitation, governmental immunity) with respect to itself or its revenues ( irrespective of their use or intended use) from (i) any action, suit or other proceeding arising under or relating to this Agreement or any other Related Document, ( ii) relief by way of injunction, order for specific performance or writ of mandamus or for recovery of property or ( iii) execution or enforcement of any judgment to which it or its revenues might otherwise be made subject in any action, suit or proceeding relating to this Agreement or any other Related Document, and no such immunity ( whether or not claimed) may be attributed to the Authority or its revenues.
h) Security for the Obligations. To secure the obligations of the Authority hereunder, the Authority has assigned and granted a first priority, perfected security interest in all of its rights, title and interest in the Installment Sale Agreement, together with the Installment Payments thereunder, to the Lender.
i) Information. All information supplied and statements and representations made to the Lender by an authorized Person on behalf of the Authority in any financial, credit or accounting statement, application for credit or other statement or document furnished to the Lender in connection with this Agreement, whether prior to, contemporaneously with or subsequent to the execution hereof, and any certificate, document, schedule or other writing furnished to the Lender pursuant to this Agreement or in response to a request made by the Lender pursuant to this Agreement, are and will be, Packet Pg. 673 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 35-
when furnished in all material respects true, complete, correct, valid, genuine and what they purport or are represented to be.
j) Incorporation of Representations and Warranties by Reference. The Authority hereby makes to the Lender the same representations and warranties made by the Authority in each Related Document to which it is a party, which representations and warranties, as well as the related defined terms contained therein, are hereby incorporated by reference for the benefit of the Lender with the same effect as if each and every such representation and warranty and defined term were set forth herein in its entirety. No amendment to such representations and warranties or defined terms made pursuant to any Related Document shall be effective to amend such representations and warranties and defined terms as incorporated by reference herein without the prior written consent of the Lender.
k) Regulation U. The Authority is not entering into this Agreement and the transactions contemplated hereby for the purpose of purchasing or carrying Margin Stock as defined in Regulation U of the Board of Governors of the Federal Reserve System. l) Usury. Assuming that the Lender is an exempted class of persons within the meaning of Article 15 of the California Constitution, the terms of this Agreement and the Loan Documents regarding the calculation and payment of interest and fees do not violate any applicable usury laws of the State of California. m) No Proposed Legal Changes. As of the Closing Date, except as previously disclosed in writing to the Lender, to the knowledge of the Authority’ s Treasurer since the Closing Date no amendment to the Constitution of the State of California or any published administrative interpretation of the Constitution of the State of California and no law has been enacted and no final and non- appealable judicial decision interpreting any of the foregoing, the effect of which could reasonably be expected to have a Material Adverse Effect.
n) Anti-Terrorism Representations.
i) The Authority is not in violation of any laws relating to terrorism or money laundering (“ Anti-Terrorism Laws”), including Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001 ( the “ Executive Order”), and the Patriot Act;
ii) The Authority is not any of the following:
A) a Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;
B) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;
Packet Pg. 674 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 36-
C) a Person with which the Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law; D) a Person that commits, threatens or conspires to commit or supports “ terrorism” as defined in the Executive Order; or E) a Person that is named as a “ specially designated national and blocked person” on the most current list published by the Office of Foreign Asset Control (“ OFAC”) or any list of Persons issued by OFAC pursuant to the Executive Order at its official website or any replacement website or other replacement official publication of such list; o) Compliance with Applicable Law. The Authority is incompliance in all material respects with the requirements of all applicable law, including all governmental approvals, except in such instances in which (i) such requirement of applicable law is being contested in good faith by appropriate proceedings diligently conducted by or on behalf of the Authority or (ii) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.
p) Employee Benefit Plans. The Authority does not maintain or contribute to, and has not maintained or contributed to, an employee pension benefit plan that is subject to Title IV of ERISA.
Section 4.02. Representations and Warranties of the City. The City represents and warrants that:
a) Organization and Powers. The City ( a) is a municipal corporation duly organized and existing under the Constitution and laws of the State of California, ( b) has all powers and all material governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted, ( c) has all required power and authority to execute, deliver and perform its obligations under this Agreement and the Related Documents to which it is a party and ( d) is licensed or qualified to do business in each jurisdiction where the ownership of property or the conduct of its business requires such qualifications.
b) Authorization, Contravention. The adoption, execution, delivery and performance by the City of the Related Documents to which it is a party are within the City’ s power and authority, have been duly authorized by all necessary action by the City and do not contravene, or result in the violation of or constitute a default under, any provision of the Constitution of the State of California or any applicable law or regulation, or any order, rule or regulation of any court, governmental agency or instrumentality or any agreement, resolution or instrument to which the City is a party or by which it or any of its property is bound.
c) Governmental Consent or Approval. No authorization, consent, approval, permit, license, exemption of or filing or registration with, any court or governmental Packet Pg. 675 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 37-
department, commission, board, bureau, agency or instrumentality is or will be necessary for the valid execution, delivery or performance by the City of the Related Documents to which it is a party except such consents, authorizations, orders and approvals (copies of which have been furnished to the Lender) as have been obtained, were validly issued and are in full force and effect.
d) Binding Effect. Each of the Loan Documents to which the City is a party has been duly executed and delivered by or on behalf of the City. Each of the Related Documents to which the City is a party constitute valid and binding obligations of the City enforceable in accordance with their respective terms, except as such enforceability may be limited by ( i) bankruptcy, insolvency, reorganization, or similar laws affecting creditors’ rights generally, ( ii) general principles of equity, (iii) the exercise of judicial discretion in appropriate cases, and (iv) the limitations on legal remedies against cities in the State of California.
e) Litigation. On the Closing Date, except as disclosed in writing to the Lender prior to the Closing Date, there are no actions, suits or proceedings pending with service of process accomplished or, to the best of the knowledge of the City, threatened in writing, against or affecting the City or relating to the Related Documents, in any court or before or by any governmental department, agency or instrumentality in which there is a reasonable possibility of any adverse decision which could have a Material Adverse Effect together with the litigation described in Section 4.01(e), “ Material Litigation”). f) Compliance; No Default. No “ event of default” specified in any of the Related Documents to which the City is a party and no event which, with the giving of notice or lapse of time or both would become such an event of default, has occurred and is continuing.
g) Immunity. The City is not entitled to claim immunity on the grounds of sovereignty or other similar grounds ( including, without limitation, governmental immunity) with respect to itself or the Net Revenues ( irrespective of their use or intended use) from (i) any action, suit or other proceeding arising under or relating to this Agreement or any other Related Document, ( ii) relief by way of injunction, order for specific performance or writ of mandamus or for recovery of property or ( iii) execution or enforcement of any judgment to which it or its revenues might otherwise be made subject in any action, suit or proceeding relating to this Agreement or any other Related Document, and no such immunity ( whether or not claimed) may be attributed to the City. h) Security for the Obligations. The Installment Sale Agreement and the Installment Payments owing thereunder are secured by a pledge of and Lien on Net Revenues, subject only to the Lien on Net Revenues securing amounts owed under the Senior Lien Obligations.
i) Environmental Laws. As of the Closing Date, except as disclosed in writing to the Lender prior to the Closing Date, the City has not received notice to the effect that its operations are not in compliance with any of the requirements of applicable Environmental Laws, or are the subject of any governmental investigation evaluating Packet Pg. 676 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 38-
whether any remedial action is needed to respond to a release of any Hazardous Materials into the environment, which noncompliance or remedial action would have a Material Adverse Effect.
j) Financial Information. The balance sheet of the City as at June 30, 2020, and the related statement of revenues, expenses and changes in net assets and statement of cash flows for the Fiscal Year then ended, copies of all of which have been delivered to the Lender, fairly present the financial position of the City at such date and the results of its operations and changes in financial position for the Fiscal Year then ended, in conformity with generally accepted accounting principles consistently applied ( except as stated therein). As of the Closing Date, since the date of such financial statements, except as disclosed to the Lender prior to the Closing Date, there has been no Material Adverse Change.
k) Information. All information supplied and statements and representations made to the Lender by an authorized Person on behalf of the City in any financial, credit or accounting statement, application for credit or other statement or document furnished to the Lender in connection with this Agreement, whether prior to, contemporaneously with or subsequent to the execution hereof, and any certificate, document, schedule or other writing furnished to the Lender pursuant to this Agreement or in response to a request made by the Lender pursuant to this Agreement, are and will be, when furnished in all material respects true, complete, correct, valid, genuine and what they purport or are represented to be.
l) Incorporation of Representations and Warranties by Reference. The City hereby makes to the Lender the same representations and warranties made by the City in each Related Document to which it is a party, which representations and warranties, as well as the related defined terms contained therein, are hereby incorporated by reference for the benefit of the Lender with the same effect as if each and every such representation and warranty and defined term were set forth herein in its entirety. No amendment to such representations and warranties or defined terms made pursuant to any Related Document shall be effective to amend such representations and warranties and defined terms as incorporated by reference herein without the prior written consent of the Lender. m) Regulation U. The City is not entering into this Agreement and the transactions contemplated hereby for the purpose of purchasing or carrying margin stock as defined in Regulation U of the Board of Governors of the Federal Reserve System. n) Usury. Assuming that the Lender is an exempted class of persons within the meaning of Article 15 of the California Constitution, the terms of this Agreement and the Loan Documents regarding the calculation and payment of interest and fees do not violate any applicable usury laws of the State of California. o) No Proposed Legal Changes. As of the Closing Date, except as previously disclosed in writing to the Lender, to the knowledge of the City’ s Finance Director since the Closing Date no amendment to the Constitution of the State of California or any published administrative interpretation of the Constitution of the State of California and no Packet Pg. 677 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 39-
law has been enacted and no final and non-appealable judicial decision interpreting any of the foregoing, the effect of which could reasonably be expected to have a Material Adverse Effect.
p) Anti-Terrorism Representations.
i) The City is not in violation of any Anti-Terrorism Laws; ii) The City is not any of the following:
A) a Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;
B) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;
C) a Person with which the Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law; D) a Person that commits, threatens or conspires to commit or supports “ terrorism” as defined in the Executive Order; or E) a Person that is named as a “ specially designated national and blocked person” on the most current list published by the OFAC or any list of Persons issued by OF AC pursuant to the Executive Order at its official website or any replacement website or other replacement official publication of such list;
q) Compliance with Applicable Law. The City in compliance in all material respects with the requirements of all applicable law, including all governmental approvals, except in such instances in which ( i) such requirement of applicable law is being contested in good faith by appropriate proceedings diligently conducted by or on behalf of the City or (ii) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.
r) Insurance. The City currently maintains insurance with respect to the Electric System of such type and in such amounts or in excess of such amounts as are customarily carried by, and insures against such risks as are customarily insured against by, Persons and projects of like type, size and character. s) Employee Benefit Plans. The City does not maintain or contribute to, and has not maintained or contributed to, an employee pension benefit plan that is subject to Title IV or ERISA.
Packet Pg. 678 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 40-
ARTICLE V
COVENANTS OF THE AUTHORITY
Section 5.01. Covenants of the Authority. The Authority covenants and agrees with the Lender that it will do the following so long as any amounts may be drawn hereunder and for so long as any amounts are owing to the Lender hereunder or under the Revolving Notes, unless the Lender shall otherwise consent in writing:
a) Information. The Authority covenants and agrees that, at all times from and after the Closing Date until the Maturity Date and until payment in full of all amounts due and owing to the Lender hereunder, the Authority will deliver to the Lender:
i) Amendments. Promptly after the adoption thereof, copies of any amendments of or supplements to any of the Loan Documents. ii) Other Information. Such other information regarding the Authority as the Lender may reasonably request.
b) Notices.
i) Notice of Default. The Authority shall provide to the Lender prompt notice by telephone, promptly confirmed in writing, of any Default or Event of Default.
ii) Notice of Material Adverse Change, Material Adverse Effect and Taxable Date. The Authority shall provide to the Lender in writing, promptly upon learning thereof, notice of any event that could reasonably be expected to result in a Material Adverse Change, any Taxable Date and any event which could reasonably be expected to have a Material Adverse Effect or could reasonably be expected to cause a Taxable Date to occur.
iii) Litigation and other Notices. The Authority shall provide to the Lender in writing, promptly upon learning thereof, notice of any criminal investigation or proceeding by a Governmental Authority involving the criminal conduct of the Authority or the criminal conduct of any officer or managerial employee of the Authority related to the official duties of such officer or managerial employee.
c) No Amendment of Loan Documents. The Authority will not permit or consent to any amendment to or modification, waiver, or termination of any of the Loan Documents without the prior written consent of the Bank. d) Related Obligations and Incorporation of Covenants. The covenants of the Authority set forth in the Loan Documents to which it is a party, as well as related defined terms contained therein, are hereby incorporated by reference herein with the same effect as if each and every such provision were set forth herein in its entirety for the benefit of Packet Pg. 679 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 41-
the Lender and shall be enforceable by the Lender against the Authority. All such incorporated covenants shall be in addition to the express covenants contained herein and shall not be limited by the express covenants contained herein nor shall such incorporated covenants be a limitation on the express covenants contained herein. To the extent that any such incorporated provision permits any Person to waive compliance with or consent to such provision or requires that a document, opinion, report or other instrument or any event or condition be acceptable or satisfactory to any Person, for purposes of this Agreement, such compliance shall be waived, or such provision shall be consented to, only if it is waived or consented to, as the case may be, by the Lender and such document, opinion, report or other instrument shall be acceptable or satisfactory only if acceptable or satisfactory to the Lender. No amendment to such covenants (or the defined terms relating thereto) made pursuant to the Loan Documents shall be effective to amend such incorporated covenants without the written consent of the Lender. Notwithstanding the termination or expiration of any Related Document, the Authority shall, unless such Related Document has terminated or expired in accordance with its terms and has been replaced by a new Related Document, continue to observe the covenants therein contained for the benefit of the Lender until the termination of this Agreement. e) Taxes and Liabilities. The Authority will pay or cause to be paid and discharged (a) all its indebtedness and obligations promptly and in accordance with their terms to the extent that such failure to pay or discharge would adversely affect the rights of the Lender hereunder or under the Loan Documents or the ability of the Authority to perform its obligations under the Revolving Notes or this Agreement and (b) promptly all taxes, assessments and governmental charges or levies imposed upon it or upon its income and profits, or upon any of its property, real, personal or mixed, or upon any part thereof, in each case before the same shall become in default which, if not paid, would likely have a Material Adverse Effect.
f) Further Assurances. The Authority will at any and all times, insofar as it may be authorized so to do by law, pass, make, do, execute, acknowledge and deliver all and every such further resolutions, acts, deeds, conveyances, assignments, recordings, filings, transfers and assurances as may be necessary or, in the reasonable judgment of the Lender, desirable for the better assuring, conveying, granting, assigning, and confirming all and singular the rights, revenues, and other funds hereby pledged or assigned to the payment of the Note, or intended so to be, of which the Authority may become bound to pledge or assign. From time to time hereafter, the Authority will execute and deliver such additional instruments, certificates or documents, and will take all such actions as the Lender may reasonably request for the purposes of implementing or effectuating the provisions of this Agreement and each of the other Loan Documents or for the purpose of more fully perfecting or renewing the Lender’ s rights with respect to any rights, properties or assets subject to such documents pursuant hereto or thereto. g) Most Favored Lender. In the event that the City or the Authority shall hereafter enter into or otherwise consent to any agreement or instrument relating to the issuance of Debt payable from or secured by Net Revenues on a parity with the Loans (or any amendment, supplement or modification thereto) (each a “ Relevant Agreement”) under which any Person undertakes to make loans, to refinance or restructure existing Debt Packet Pg. 680 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 42-
payable from or secured by Net Revenues on a parity with the Loans or to extend credit or liquidity to the City or the Authority or pursuant to which the City or Authority and a Person agree to an Interest Rate Swap Agreement payable from or secured by Net Revenues on a parity with the Loans or other similar arrangement, which Relevant Agreement (i) provides such Person with a covenant, provision or agreement which is more restrictive, as to the City or the Authority, (ii) provides for additional events of default, or iii) gives or grants greater rights or remedies to such Person ( each, a “ Favored Covenant”) than, in the case of (i), are undertaken by the City or the Authority herein or, in the case of ii) and ( iii), are given or granted to the Lender herein, then each such Favored Covenant shall automatically be deemed to be incorporated into this Agreement and the Lender shall have the benefits of each such Favored Covenant as if specifically set forth in this Agreement for the duration of such Relevant Agreement. The Authority shall give the Lender notice and a copy of any Relevant Agreement prior to entering into such Relevant Agreement. If necessary, the City and the Authority shall promptly enter into an amendment to this Agreement to include the Favored Covenant; provided that the Lender shall maintain the benefit of such Favored Covenant even if the City and the Authority fail to provide such amendment. The Authority hereby represents and warrants that on the Closing Date it is not party to a Relevant Agreement that contains more restrictive covenants than those contained in this Agreement.
h) Maintenance of Books and Records. The Authority shall keep proper books of record and account in which full, true and correct entries will be made of all dealings or transactions in relation to its business and activities related to the Installment Sale Agreement.
i) Exempt Status. The Authority shall not take any action or omit to take any action that, if taken or omitted, would adversely affect the excludability of interest on the Tax- Exempt Note from the gross income of the Lender thereof for purposes of federal income taxation under the Code.
j) Licenses, Permits, Etc. All authorizations, approvals, licenses, permits, consents and orders of any governmental authority, board, agency or commission having jurisdiction in the matter which are required for the due authorization of, which would constitute a condition precedent to or the absence of which would adversely affect the due performance by the Authority of its obligations hereunder and under the other Loan Documents to which it is a party have been and shall at all times in all material respects be duly maintained and complied with by the Authority.
k) Laws and Contracts. The Authority shall do all things necessary to maintain and comply with all necessary authorizations, approvals, consents and rights material for the conduct of its business as it is presently being conducted and the ownership and operations of its facilities as they are presently being operated and comply in all material respects with all present and future laws ( including Environmental Laws), statutes, rules, regulations, codes, ordinances, orders, writs, judgments, decrees, awards, injunctions, restrictive covenants and requirements binding upon or applicable to it, its assets or its operations to the extent that a failure to so maintain or comply would materially and adversely affect (in the reasonable opinion of the Lender) the rights of the Lender hereunder Packet Pg. 681 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 43-
or the ability of the Authority to perform its obligations under the Revolving Notes or this Agreement. The Authority shall comply in all material respects with any credit agreement, indenture, mortgage, agreement or other instrument to which it is a party or otherwise subject to the extent that a failure to comply would materially and adversely affect (in the reasonable opinion of the Lender) the rights of the Lender hereunder or the ability of the Authority to perform its obligations under the Revolving Notes or this Agreement. The Authority will promptly furnish copies of all default notices under any such laws and any outstanding contracts or agreements, a default under which would likely have a Material Adverse Effect.
l) Existence. The Authority shall maintain its existence. m) Liens. The Authority shall not cause or permit there to be any Lien on its rights under the Installment Sale Agreement except for the Lien in favor of the Lender.
The Authority shall not assign or transfer any of its rights under the Installment Sale Agreement except to the Lender.
n) Filing of Agreement. In the event that the Authority delivers this Agreement to the Municipal Securities Rulemaking Board, for filing with EMMA, the filed copy of this Agreement shall be redacted in a manner satisfactory to the Lender. o) Immunity. The Authority irrevocably agrees that it will not assert or claim any immunity on the grounds of sovereignty or other similar grounds (including, without limitation, governmental immunity) from (i) any action, suit or other proceeding arising under or relating to this Agreement or any other Related Document, (ii) relief by way of injunction, order for specific performance or writ of mandamus or ( iii) execution or enforcement of any judgment to which it might otherwise be entitled in any such action, suit or other proceeding, and the Authority hereby irrevocably waives, to the fullest extent permitted by applicable law all such immunity.
p) Interest Rate Swap Agreements. The Authority shall at all times require that any termination fees payable in connection with any Interest Rate Swap Agreement entered into by the Authority and payable from and secured by payment of Authority Revenues, shall be subordinate to the payment of the Revolving Notes and the Obligations hereunder.
The Authority shall not provide any collateral to support the obligations of the Authority under any Interest Rate Swap Agreement entered into by the Authority and payable solely from Authority Revenues, other than a Lien on Authority Revenues. Except as set forth in the first sentence of this Section, the Authority shall at all times require that any Lien on Authority Revenues securing any Interest Rate Swap Agreement entered into by the Authority and payable from and secured by Authority Revenues, be on a parity with the Lien securing the Debt to which such Interest Rate Swap Agreement relates.
Section 5.02. Covenants of the City. The City covenants and agrees with the Lender that it will do the following so long as any amounts may be drawn hereunder and for so long as any Packet Pg. 682 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 44-
amounts are owing to the Lender hereunder or under the Revolving Notes, unless the Lender shall otherwise consent in writing:
a) Information. The City covenants and agrees that, at all times from and after the Closing Date until the Maturity Date and until payment in full of all amounts due and owing to the Lender hereunder, the City will deliver to the Lender:
i) as soon as available and in any event within 270 days after the end of each Fiscal Year of the City, (A) a copy of the annual audit report of the City, certified to the City as having been prepared in accordance with generally accepted accounting principles consistently applied by independent certified public accountants of recognized standing, including a balance sheet of the City as of the end of such Fiscal Year and related statement of revenues, expenses and changes in net assets and statement of cash flows for the Fiscal Year ended and (B) a letter from a City Representative addressed to the Lender in the form of Exhibit I stating that no Default or Event of Default has come to his or her attention which was continuing at the end of such Fiscal Year or on the date of such letter, or, if such Default or Event of Default has come to such officer’ s attention and was continuing at the end of such Fiscal Year or on the date of such letter, indicating the nature of such Default or Event of Default and the action which the City proposes to take with respect thereto.
ii) as soon as practicable and in any event within 60 days after the end of the first three quarters of the Electric System for each Fiscal Year, the unaudited financial report of the Electric System as of the end of such fiscal quarter, which includes information as to actual financial results compared to results contemplated by an annual budget, prepared from the books and records of the Electric System on a consistent basis;
iii) in connection with the delivery of the financial statements set forth in paragraph (i) of this Section 5.02(a), a certificate of a City Representative (i) to the effect that as of the date of such certificate no Default or Event of Default has occurred, or (ii) if a Default or Event of Default has occurred specifying the nature of such Default or Event of Default, the period of its existence, and the action which the City is taking or proposes to take with respect thereto unless such Default or Event of Default has previously been reported pursuant to Section 5.02(b)(i) below, and no change in the status of such Default or Event of Default has occurred; iv) Budget. As soon as available, the annual capital and operating budgets of the Electric System for such upcoming Fiscal Year. Additionally, promptly after the adoption thereof, any amendments to the annual operating budget that could reasonably be expected to result in a Material Adverse Change. v) Amendments. Promptly after the adoption thereof, copies of any amendments of or supplements to any of the Related Documents.
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vi) Material Event Notices. Immediately following any dissemination, distribution or provision thereof to any Person, a copy of any Material Event Notice related to Parity Obligations disseminated, distributed or provided by the City in satisfaction of or as may be required by the provisions of Rule 15c2-12 promulgated pursuant to the Securities Exchange Act of 1934, as amended ( 17 C.F.R. Sec. 240 15c2-12), or any successor or similar legal requirement. vii) EMMA Filings. Copies of all filings related to Parity Obligations required to be made by the City with EMMA promptly after such filings are made. b) Notices.
i) Notice of Default. The City shall provide to the Lender prompt notice by telephone, promptly confirmed in writing, of any Default or Event of Default.
ii) Notice of Material Adverse Change, Material Adverse Effect and Taxable Date. The City shall provide to the Lender in writing, promptly upon learning thereof, notice of any event that could reasonably be expected to result in a Material Adverse Change, any Taxable Date and any event which could reasonably be expected to have a Material Adverse Effect or could reasonably be expected to cause a Taxable Date to occur.
iii) Litigation and other Notices. The City shall provide to the Lender in writing, promptly upon learning thereof, notice of:
c) No Amendment of Related Documents. The City will not permit or consent to any amendment to or modification, waiver, or termination of any of the Loan Documents without the prior written consent of the Bank, nor the City permit or consent to any such amendment, modification, waiver or termination of any of the other Related Documents which would be expected to have a Material Adverse Effect or which adversely affects the rights, interest, security or remedies of the Bank, in each case without the prior written consent of the Bank.
d) Related Obligations and Incorporation of Covenants. The covenants of the City set forth in the Related Documents to which it is a party, as well as related defined terms contained therein, are hereby incorporated by reference herein with the same effect as if each and every such provision were set forth herein in its entirety for the benefit of the Lender and shall be enforceable by the Lender against the City. All such incorporated covenants shall be in addition to the express covenants contained herein and shall not be limited by the express covenants contained herein nor shall such incorporated covenants be a limitation on the express covenants contained herein. To the extent that any such incorporated provision permits any Person to waive compliance with or consent to such provision or requires that a document, opinion, report or other instrument or any event or condition be acceptable or satisfactory to any Person, for purposes of this Agreement, such compliance shall be waived, or such provision shall be consented to, only if it is waived or Packet Pg. 684 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 46-
consented to, as the case may be, by the Lender and such document, opinion, report or other instrument shall be acceptable or satisfactory only if acceptable or satisfactory to the Lender. No amendment to such covenants ( or the defined terms relating thereto) made pursuant to the Related Documents shall be effective to amend such incorporated covenants without the written consent of the Lender. Notwithstanding the termination or expiration of any Related Document, the City shall, unless such Related Document has terminated or expired in accordance with its terms and has been replaced by a new Related Document, continue to observe the covenants therein contained for the benefit of the Lender until the termination of this Agreement.
e) Taxes and Liabilities. The City will pay or cause to be paid and discharged a) all its indebtedness and obligations promptly and in accordance with their terms to the extent that such failure to pay or discharge would adversely affect the rights of the Lender hereunder or under the Related Documents or the ability of the City to perform its obligations under this Agreement or the Related Documents to which it is a party and b) promptly all taxes, assessments and governmental charges or levies imposed upon it or upon its income and profits, or upon any of its property, real, personal or mixed, or upon any part thereof, in each case before the same shall become in default which, if not paid, would likely result in a Material Adverse Effect.
f) Further Assurances. The City will at any and all times, insofar as it may be authorized so to do by law, pass, make, do, execute, acknowledge and deliver all and every such further resolutions, acts, deeds, conveyances, assignments, recordings, filings, transfers and assurances as may be necessary or, in the reasonable judgment of the Lender, desirable for the better assuring, conveying, granting, assigning, and confirming all and singular the rights, revenues, and other fonds hereby pledged or assigned to the payment of the Revolving Notes, or intended so to be, of which the City may become bound to pledge or assign. From time to time hereafter, the City will execute and deliver such additional instruments, certificates or documents, and will take all such actions as the Lender may reasonably request for the purposes of implementing or effectuating the provisions of this Agreement and each of the other Related Documents or for the purpose of more fully perfecting or renewing the Lender’ s rights with respect to any rights, properties or assets subject to such documents pursuant hereto or thereto. g) Most Favored Lender. In the event that the City or the Authority shall hereafter enter into or otherwise consent to any agreement or instrument relating to the issuance of Debt payable from or secured by Net Revenues on a parity with the Loans (or any amendment, supplement or modification thereto) (each a “ Relevant Agreement”) under which any Person undertakes to make loans, to refinance or restructure existing Debt payable from or secured by Net Revenues on a parity with the Loans or to extend credit or liquidity to the City or the Authority or pursuant to which the City or Authority and a Person agree to an Interest Rate Swap Agreement payable from or secured by Net Revenues on a Parity with the Loans or other similar arrangement, which Relevant Agreement (i) provides such Person with a covenant, provision or agreement which is more restrictive, as to the City or the Authority, (ii) provides for additional events of default, or iii) gives or grants greater rights or remedies to such Person (each, a “ Favored Covenant”) Packet Pg. 685 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 47-
than, in the case of (i), are undertaken by the City or the Authority herein or, in the case of ii) and ( iii), are given or granted to the Lender herein, then each such Favored Covenant shall automatically be deemed to be incorporated into this Agreement and the Lender shall have the benefits of each such Favored Covenant as if specifically set forth in this Agreement for the duration of such Relevant Agreement. The City shall give the Lender notice and a copy of any Relevant Agreement prior to entering into such Relevant Agreement. If necessary, the City and the Authority shall promptly enter into an amendment to this Agreement to include the Favored Covenant; provided that the Lender shall maintain the benefit of such Favored Covenant even if the City and the Authority fail to provide such amendment. The City hereby represents and warrants that on the Closing Date it is not party to a Relevant Agreement that contains more restrictive covenants than those contained in this Agreement.
h) Maintenance of Books and Records. The City shall keep proper books of record and account in which full, true and correct entries will be made of all dealings or transactions in relation to its business and activities related to the Electric System and the Net Revenues.
i) Reserved.
j) Exempt Status. The City shall not take any action or omit to take any action that, if taken or omitted, would adversely affect the excludability of interest on the TaxExempt Notes from the gross income of the Lender thereof for purposes of federal income taxation under the Code.
k) Licenses, Permits, Etc. All authorizations, approvals, licenses, permits, consents and orders of any governmental authority, board, agency or commission having jurisdiction in the matter which are required for the due authorization of, which would constitute a condition precedent to or the absence of which would adversely affect the due performance by the City of its obligations hereunder and under the other Related Documents to which it is a party have been and shall at all times in all material respects be duly maintained and complied with by the City.
l) Laws and Contracts. The City shall do all things necessary to maintain and comply with all necessary authorizations, approvals, consents and rights material for the conduct of its business as it is presently being conducted and the ownership and operations of its facilities as they are presently being operated and comply in all material respects with all present and future laws (including Environmental Laws), statutes, rules, regulations, codes, ordinances, orders, writs, judgments, decrees, awards, injunctions, restrictive covenants and requirements binding upon or applicable to it, its assets or its operations to the extent that a failure to so maintain or comply would materially and adversely affect (in the reasonable opinion of the Lender) the rights of the Lender hereunder or the ability of the City to perform its obligations under this Agreement. The City shall comply in all material respects with any credit agreement, indenture, mortgage, agreement or other instrument to which it is a party or otherwise subject to the extent that a failure to comply would materially and adversely affect (in the reasonable opinion of the Lender) the rights Packet Pg. 686 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 48-
of the Lender hereunder or the ability of the City to perform its obligations under this Agreement. The City will promptly furnish copies of all default notices under any such laws and any outstanding contracts or agreements, a default under which would likely result in a Material Adverse Effect.
m) Existence. The City shall maintain its existence.
n) Liens. The City shall not cause or permit there to be any Lien on the Net Revenues except for the Liens that secure the payment of Senior Lien Obligations and/or Parity Obligations.
o) Restrictions on Use of Note Proceeds. The Advances will be applied by the Authority to the purposes of financing or refinancing the eligible costs of Projects. p) Reserved.
q) Reserved.
r) Filing of Agreement. In the event that the City delivers this Agreement to the Municipal Securities Rulemaking Board, for filing with EMMA, the filed copy of this Agreement shall be redacted in a manner satisfactory to the Lender. s) Insurance. The City will at all times maintain insurance with respect to the Electric System of such type, and in such amounts or in excess of such amounts as are customarily carried by, and insuring against such risks as are customarily insured against by, Persons and projects of like type, size and character. t) Rating Maintenance. The City shall cause at least one Rating Agency to assign the Obligor Rating until such time as all indebtedness secured by a lien on or payable from Net Revenues that has previously been assigned a rating by a Rating Agency is no longer outstanding.
u) Rates. The City will at all times maintain rates and charges for the services furnished, provided and supplied by the Electric System which shall produce Revenues in each Fiscal Year from the Electric System sufficient:
i) to pay the Maintenance and Operation Costs;
ii) to produce Net Revenues of the Electric System, sufficient ( x) to pay an amount equal to 110% of the principal of and interest on all Senior Lien Obligations for each Fiscal Year, and ( y) to pay the amounts required to be deposited in any reserve or contingency fund created for the payment and security of any and all Senior Lien Obligations;
iii) to produce Net Revenues of the Electric System (after satisfaction of the amounts required to be paid in clause (ii) above), equal to at least 100% of Packet Pg. 687 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 49-
the maximum annual debt service for all Parity Obligations payable in any such Fiscal Year; and
iv) to pay any other legal debt or obligation of the Electric System as and when the same shall become due.
For purposes of this Section 5.02(u), the foregoing clause ( iii), the following assumptions shall apply: the Parity Obligations represented by the Loans shall be deemed to be ( i) outstanding in an aggregate principal amount of $25,000,000 and amortized over a twenty 20) year period on the basis of level debt service, and ( ii) bear interest at an assumed interest rate of 5% per annum.
v) Additional Debt. The City may at any time incur or issue additional Senior Lien Obligations or Parity Obligations, but only if (i) no Default or Event of Default has occurred and is continuing hereunder and ( ii) the City shall have delivered to the Lender written evidence demonstrating that, upon the occurrence of such Debt based upon the Net Revenues for the prior Fiscal Year and without any modification of its then current rates and charges, the City will be in compliance with Section 5.02(u) hereof. w) Immunity. The City irrevocably agrees that it will not assert or claim any immunity on the grounds of sovereignty or other similar grounds ( including, without limitation, governmental immunity) from (i) any action, suit or other proceeding arising under or relating to this Agreement or any other Related Document, ( ii) relief by way of injunction, order for specific performance or writ of mandamus or ( iii) execution or enforcement of any judgment to which it might otherwise be entitled in any such action, suit or other proceeding, and the City hereby irrevocably waives, to the fullest extent permitted by applicable law, all such immunity.
x) Capacity. The City shall at all times maintain the legal ability to issue Senior Lien Obligations in an amount equal to the sum of (i) the aggregate principal amount of all Loans outstanding plus (ii) the aggregate amount of accrued interest to maturity on all Revolving Notes plus (iii) any Obligations payable to the Bank hereunder or under any Related Document. Upon written request of the Bank, the City shall deliver a certificate demonstrating the ability of the City to satisfy the requirements of Section 5.02(v) hereof.
Packet Pg. 688 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 50-
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. Events of Default. The occurrence of any of the following events ( whatever the reason for such event and whether voluntary, involuntary, or effected by operation of Law) shall be an “ Event of Default” hereunder, unless waived in writing by the Lender:
a) ( i) The Authority shall fail to pay when due any principal or interest on or with respect to any Revolving Note or any Loan or (ii) the Authority or the City shall fail to pay any fees or other amounts payable under any of the Related Documents; b) The Authority shall fail to perform any term, covenant, condition or provision of Section 5.01(c), (d), (g), (i), (l), (m), (o), or (p) or the City shall fail to perform any term, covenant, condition or provision of 5.02(c), (d), (g), (j), (m), (n), (o), (u), (v) or w);
c) Failure of the Authority or the City to observe or perform any of the other covenants, conditions or provisions of any Related Document ( other than as specified in subparagraphs ( a) and (b) above) and to remedy such default within twenty (20) days after the Authority or the City, as applicable, receives notice of such failure or has actual knowledge of such failure;
d) Any representation or warranty made or deemed made by or on behalf of the Authority or the City herein, in any Related Document, or in any certificate, financial or other statement furnished by or on behalf of the Authority or the City to the Lender shall prove to have been inaccurate, misleading or incomplete in any material respect when made or deemed to have been made;
e) Default by the Authority or the City in the payment of any amount when due in respect of any Debt payable from or secured by payment from Net Revenues; or default under any Contract under or pursuant to which Debt payable from or secured by a Lien on Net Revenues on a parity with or senior to the Installment Payments is incurred or issued, and continuance of such default beyond the period of grace, if any, allowed with respect thereto; or default under any Contract under or pursuant to which Debt payable from or secured by a Lien on Net Revenues on a priority that is subordinate to the Installment Payments is incurred or issued, and continuance of such default beyond the period of grace, if any, allowed with respect thereto, which default results in such Debt becoming, or being capable of becoming, immediately due and payable; or the occurrence of any act or omission by the Authority or the City under any Contract under or pursuant to which Debt is incurred or issued which results in such Debt becoming, or being capable of becoming, immediately due and payable ( or, with respect to any Interest Rate Swap Agreement payable from or secured by payment from Net Revenues, which results in such Interest Rate Swap Agreement being terminated early or being subject to early termination).
Packet Pg. 689 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 51-
f) An Event of Insolvency shall occur with respect to the Authority or the City; g) ( i) Any of the Loan Documents or any material provision of any of the Loan Documents shall at any time, for any reason, cease to be the legal, valid and binding obligation of the City or the Authority, as applicable, or shall cease to be in full force and effect, or shall be declared to be unenforceable, invalid or void, or the validity or enforceability thereof shall be contested by the City or the Authority, or the City or the Authority shall renounce the same or deny that it has any further liability hereunder or thereunder; or
ii) any provision of the Loan Documents related to (A) the payment of principal of or interest on the Revolving Loans or any Parity Obligation or (B) the validity or enforceability of the pledge of Net Revenues or Authority Revenues shall at any time, for any reason, cease to be the legal, valid and binding obligation of the City or the Authority, as applicable, or shall cease to be in full force and effect, or shall be declared to be unenforceable, invalid or void, or the validity or enforceability thereof shall be contested by the City or the Authority, or the City or the Authority shall renounce the same or deny that it has any further liability hereunder or thereunder
h) Any party to any of the Related Documents ( other than the Lender) breaches an obligation thereunder ( beyond any applicable notice and cure period) and such failure is likely to have, in the Lender’ s reasonable judgment, a Material Adverse Effect; i) The entry or filing of one or more final, non-appealable judgments or orders or of any similar decrees or decisions for the payment of money ( each, a “ Judgment”) which, individually or in the aggregate exceed $10,000,000, shall be rendered against the City or the Authority that is not substantially covered by insurance and enforcement proceedings shall have been initiated by any creditor upon such Judgment, which proceedings are not stayed, vacated, discharged or bonded within sixty (60) calendar days of being initiated;
j) the City or Authority shall fail to pay when due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) any principal amount of any Debt in an aggregate principal amount of $5,000,000 or greater or any interest or premium thereon, and such failure shall continue beyond any applicable period of grace specified in any underlying indenture, contract or instrument providing for the creation of or concerning such Debt;
k) The Obligor Rating assigned by any of Moody’ s, S& P, or Fitch, if such Rating Agency is providing an Obligor Rating, is reduced for any reason below “Baa1” ( or its equivalent) by Moody’ s, “ BBB+” ( or its equivalent) by S& P or “ BBB+”(or its equivalent), respectively, by Fitch, or suspended or withdrawn by any such Rating Agency for any credit related reason.
l) Reserved;
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m) Any “ event of default” shall have occurred and be continuing under any Related Document; or
n) Any Lien created by this Agreement or any of the Loan Documents in favor of the Lender or the Authority, at any time and for any reason ( except as expressly permitted to be released by the terms of such governing document) shall not constitute a valid and perfected Lien or shall fail to have the priority required by this Agreement and the other Loan Documents, or the Authority or the City shall so assert in writing.
Section 6.02. Consequences of an Event of Default. If an Event of Default specified in Section 6.01 shall occur, then in addition to any other rights or remedies available to the Lender under any of the other Loan Documents or under Applicable Law, the Lender may exercise any one or more of the following rights and remedies:
a) ( i) accelerate all of the Obligations hereunder whereupon such Obligations shall become immediately due and payable without presentment, demand for payment, protest or notice of nonpayment or dishonor, or other notice of any kind or character, all of which are hereby expressly waived, and an action therefor shall immediately accrue; ii) terminate its commitment to extend further credit under this Agreement;
iii) to the extent permitted by law, (i) apply to any court of competent jurisdiction for, and obtain appointment of, a receiver for the property of the City or the Authority, (ii) either personally or by attorney or agent and without bringing any action or proceeding, or by such a receiver, take whatever action at law or in equity may appear necessary or desirable to collect the amounts due and payable under the Loan Documents or to enforce performance or observance of any of the Obligations, whether for specific performance of any agreement or covenant of the City of the Authority or in aid of the execution of any power granted to the Lender in the Loan Documents or as otherwise available at law or in equity; iv) exercise, or cause to be exercised, any and all remedies as it may have under the Loan Documents and as otherwise available at law and at equity; and
v) increase the interest rate for all Obligations to the Default Rate. b) Notwithstanding the provisions of Section 6.02(a)(i), (x) the Lender shall not cause an acceleration of the Obligations as described in Section 6.02(a)(i) until seven 7) days after the occurrence of an Event of Default specified in Section 6.01(a), 6.01(e),
6.01(f), 6.01(g)(ii), 6.01(i), 6.01(j) or 6.01(k)(i) and (y) the Lender shall notify the City or Authority, as applicable, of an acceleration at least one hundred eighty (180) days prior thereto in the case of any Event of Default not specified in the immediately preceding clause ( x). Notwithstanding the foregoing sentence of this Section 6.02(b), if (i) (x) an Event of Default under Section 6.01(f) hereof occurs or ( y) any other holder or credit Packet Pg. 691 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 53-
enhancer of Debt or any counterparty under any Interest Rate Swap Agreement related thereto causes any such Debt or other obligations of the City or Authority, as applicable, to become immediately due and payable ( whether by repurchase, mandatory tender, mandatory redemption, acceleration or otherwise), the Lender may immediately, without notice, avail itself of the remedies set forth in Section 6.02(a)(i) hereof and/or declare or cause to be declared the unpaid principal amount of all outstanding Obligations, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder to be immediately due and payable, and ( ii) any other holder or credit enhancer of Debt or any counterparty under any Interest Rate Swap Agreement related thereto has the right to cause such Debt to be immediately due and payable ( whether by repurchase, mandatory tender, mandatory redemption, acceleration or otherwise) on a date earlier than, or pursuant to a notice period which is shorter than what is set forth in the first sentence of this Section
6.02(b) in connection with a default related to such Debt, then the Lender shall automatically have such right or shorter notice period, as applicable.
Section 6.03. Remedies Cumulative; Solely for the Benefit of Lender. To the extent permitted by, and subject to the mandatory requirements of, Applicable Law, each and every right, power and remedy specifically given to the Lender in the Loan Documents shall be cumulative, concurrent and nonexclusive and shall be in addition to every other right, power and remedy specifically given or now or hereafter existing at law or in equity, and each and every right, power and remedy (whether specifically given or otherwise existing) may be exercised from time to time and as often and in such order as may be deemed expedient by the Lender, and the exercise or the beginning of the exercise of any right, power or remedy shall not be construed to be a waiver of the right to exercise at the same time or thereafter any other right, power or remedy.
The rights and remedies of the Lender are for the sole and exclusive benefit, use and protection of the Lender, and the Lender is entitled, but shall have no duty or obligation to the City or the Authority or any other Person or otherwise, to exercise or to refrain from exercising any right or remedy reserved to the Lender under any of the Loan Documents.
Section 6.04. Waivers or Omissions. No course of dealing and no delay or failure by the Lender in the exercise of any right, remedy or power or in the pursuit of any remedy shall impair any such right, remedy or power or be construed to be a waiver of any default or to be acquiescence therein on the part of the Lender. No express or implied waiver by the Lender of any Event of Default shall in any way be a waiver of any future or subsequent Event of Default.
Section 6.05. Discontinuance of Proceedings. In case the Lender shall proceed to invoke any right, remedy or recourse permitted under the Loan Documents and shall thereafter elect to discontinue or abandon the same for any reason, the Lender shall have the unqualified right so to do and, in such event, the City, the Authority and the Lender shall be restored to their former positions with respect to the Obligations, the Loan Documents and otherwise, and the rights, remedies, recourse and powers of the Lender hereunder shall continue as if the same had never been invoked.
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ARTICLE VII
INDEMNIFICATION
Section 7.01. Indemnification. In addition to any and all rights of reimbursement, indemnification, subrogation or any other rights pursuant hereto or under law or equity, but solely to the extent permitted by Applicable Law, the City and Authority hereby agree to indemnify and hold harmless the Lender and its officers, directors and agents ( each, an “ Indemnitee”) from and against any and all claims, damages, losses, liabilities, reasonable costs or expenses whatsoever including reasonable attorneys’ fees) which may incur or which may be claimed against an Indemnitee by any Person or entity whatsoever ( collectively, the “ Liabilities”) by reason of or in connection with the execution and delivery or transfer of, or payment or failure to pay under, any Loan Document; provided that neither the City nor Authority shall be required to indemnify an Indemnitee for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent, caused by the willful misconduct, bad faith or gross negligence of such Indemnitee. If any proceeding shall be brought or threatened against an Indemnitee as a condition of indemnity hereunder each Indemnitee shall promptly notify the City or the Authority in writing and the City or the Authority shall assume the defense thereof, including the employment of counsel satisfactory to such Indemnitee and the payment of all reasonable costs of litigation.
Notwithstanding the preceding sentence, each Indemnitee shall have the right to employ its own counsel and to determine its own defense of such action in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnitee unless ( i) the employment of such counsel shall have been authorized in writing by the Authority, or ( ii) neither the City nor Authority, after due notice of the action, shall have employed counsel satisfactory to such Indemnitee to have charge of such defense, in either of which events the reasonable fees and expenses of counsel for such Indemnitee shall be borne by the City or the Authority. The City or the Authority shall not be liable for any settlement of any such action effected without its consent.
Section 7.02. Survival. The obligations of the City and the Authority under this Article VIII shall survive the termination of this Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Patriot Act Notice. The Lender hereby notifies the City and the Authority that pursuant to the requirements of the Patriot Act it is required to obtain, verify and record information that identifies the City and the Authority, which information includes the name and address of the City and the Authority and other information that will allow the Lender to identify the City and the Authority in accordance with the Patriot Act. The City and Authority each hereby agree that it shall promptly provide such information upon request by the Lender.
Section 8.02. Further Assurances. From time to time upon the request of the Lender, the City and Authority shall promptly and duly execute, acknowledge and deliver any and all such further instruments and documents as the Lender may in its reasonable discretion deem necessary Packet Pg. 693 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 55-
or desirable to carry out the purpose and intent hereof or to enable the Lender to enforce any of their rights hereunder. At any time, and from time to time, upon reasonable request by the Lender, the City and the Authority will, at the City and the Authority’ s expense, correct any defect, error or omission which may be discovered in the form or content of any of the Loan Documents.
Section 8.03. Amendments and Waivers. The Lender, the City and the Authority may from time to time enter into agreements amending, modifying or supplementing the Loan Documents or changing the rights of the Lender or the City or the Authority hereunder or thereunder, and the Lender may from time to time grant waivers or consents to a departure from the due performance of the Obligations of the City and the Authority hereunder or thereunder. Any such agreement, waiver or consent must be in writing and shall be effective only to the extent specifically set forth in such writing.
Section 8.04. Notices. All notices, requests, demands, directions and other communications ( collectively “ notices”) under the provisions of this Agreement shall be in writing (including facsimile communication), unless otherwise expressly permitted hereunder, and shall be properly addressed and sent by registered or certified mail or by express courier for next Business Day delivery and shall be deemed received as follows: ( a) if by registered or certified mail, five (5) days after mailing; (b) if by express courier, on the next Business Day; and (c) if by facsimile, when confirmation of transmission is obtained if prior to 5:00 p.m. local time on a Business Day, and otherwise, on the next Business Day; provided that service of a notice prescribed by any Applicable Law shall be considered complete when the requirements of that Law are met. Notices by electronic mail (e-mail) shall not constitute notice under this Agreement and are only to be used in addition to notice given as prescribed under ( a), ( b) or (c) of this this this Section 8.04. All notices shall be sent to the applicable party at the following address or in accordance with the last unrevoked written direction from such party to the other party hereto:
If to Authority:
Redding Joint Powers Financing Authority
777 Cypress Avenue
Redding, CA 96001
Attention: Allyn Feci Clark, Treasurer of the Authority Telephone: (530) 225-4368
E-mail: [email protected]
If to the Lender:
U.S. Bank National Association
3 Bryant Park
1095 Avenue of the Americas, 13th Floor
New York, NY 10036
Attention: Bhalachandra Mehendale
Facsimile: ( 917) 256-2830
Telephone: ( 917) 326-3970
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With a copy to:
U.S. Bank National Association
3 Bryant Park
1095 Avenue of the Americas, 13th Floor
New York, NY 10036
Attention: Jane Park
Facsimile: ( 917) 256-2830
Telephone: ( 646) 935-4518
If to the Lender for Advances:
U.S. Bank National Association
Shelbyville Main
100 North Side Square
CN-TN-1732
Shelbyville, TN 37160
Attention: Christy Tobish
Telephone: ( 931) 680-0535
With a copy to:
U.S. Bank National Association
3 Bryant Park
1095 Avenue of the Americas, 13th Floor
New York, NY 10036
Attention: Jane Park
Facsimile: ( 917) 256-2830
Telephone: ( 646) 935-4518
If to the City:
City of Redding
777 Cypress Avenue
Redding, CA 96001
Attention: Allyn Feci Clark, Director of Finance of the City Telephone: (530) 225-4368
E-mail: [email protected]
The Lender may in its sole discretion rely on any notice ( including telephone communication or e-mail communication) purportedly made by or on behalf of the City or Authority, but it shall have no duty to accept any notice not given as prescribed in this Section and shall have no duty to verify the identity or authority of the Person giving such notice, unless such actions or omissions would amount to gross negligence or intentional misconduct.
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Section 8.05. No Third-Party Rights. Nothing in this Agreement, whether express or implied, shall be construed to give to any Person other than the City, Authority and the Lender any legal or equitable right, remedy or claim under or in respect of this Agreement, which is intended for the sole and exclusive benefit of the parties hereto.
Section 8.06. Severability. The provisions of this Agreement are intended to be severable.
If any provision of this Agreement shall be held invalid or unenforceable in whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the remaining provisions hereof in any jurisdiction.
Section 8.07. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. a) Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT UNDER, AND
TOGETHER WITH ANY DISPUTES OR CONTROVERSIES ARISING OUT OF OR RELATING TO THIS
AGREEMENT, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF CALIFORNIA AND APPLICABLE FEDERAL LAW, WITHOUT REGARD TO CHOICE OF LAW RULES; PROVIDED THAT THE OBLIGATIONS OF THE LENDER HEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCRODANCE WITH THE, THE LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS PROVISIONS ( OTHER THAN NEW YORK GENERAL OBLIGATIONS LAWS 5-1401 AND 5-1402).
b) Consent to Jurisdiction. EACH PARTY HERETO CONSENTS TO AND SUBMITS TO IN
PERSONAM JURISDICTION AND VENUE IN THE STATE OF CALIFORNIA AND IN THE FEDERAL DISTRICT COURTS WHICH ARE LOCATED IN THE STATE OF CALIFORNIA. EACH PARTY ASSERTS THAT IT HAS
PURPOSEFULLY AVAILED ITSELF OF THE BENEFITS OF THE LAWS OF THE STATE OF CALIFORNIA AND
WAIVES ANY OBJECTION TO IN PERSONAM JURISDICTION ON THE GROUNDS OF MINIMUM CONTACTS, WAIVES ANY OBJECTION TO VENUE, AND WAIVES ANY PLEA OF FORUM NON CONVENIENS. THIS
CONSENT TO AND SUBMISSION TO JURISDICTION IS WITH REGARD TO ANY ACTION RELATED TO THIS AGREEMENT.
c) Waiver of Jury Trial. EACH PARTY HERETO WAIVES ITS RIGHT TO A JURY TRIAL OF ANY
AND ALL CLAIMS OR CAUSES OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS. IT IS HEREBY ACKNOWLEDGED THAT THE WAIVER OF A JURY TRIAL IS A
MATERIAL INDUCEMENT FOR THE LENDER TO EXTEND CREDIT HEREUNDER AND THAT THE
EXECUTION AND DELIVERY OF THIS AGREEMENT BY THE CITY, AUTHORITY AND THE LENDER IS MADE IN RELIANCE UPON SUCH WAIVER. EACH PARTY HERETO FURTHER WARRANTS AND
REPRESENTS THAT SUCH WAIVER HAS BEEN KNOWINGLY AND VOLUNTARILY MADE FOLLOWING CONSULTATION WITH ITS RESPECTIVE LEGAL COUNSEL. IF AND TO THE EXTENT THAT THE
FOREGOING WAIVER OF THE RIGHT TO A JURY TRIAL IS UNENFORCEABLE FOR ANY REASON IN SUCH
FORUM, EACH OF THE PARTIES HERETO HEREBY CONSENTS TO THE ADJUDICATION OF ALL CLAIMS
PURSUANT TO JUDICIAL REFERENCE AS PROVIDED IN CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 638, AND THE JUDICIAL REFEREE SHALL BE EMPOWERED TO HEAR AND DETERMINE ALL ISSUES IN SUCH REFERENCE, WHETHER FACT OR LAW. EACH OF THE PARTIES HERETO REPRESENTS
THAT EACH HAS REVIEWED THIS WAIVER AND CONSENT AND EACH KNOWINGLY AND VOLUNTARILY
WAIVES ITS JURY TRIAL RIGHTS AND CONSENTS TO JUDICIAL REFERENCE FOLLOWING CONSULTATION Packet Pg. 696 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 58-
WITH LEGAL COUNSEL ON SUCH MATTERS. IN THE EVENT OF LITIGATION, A COPY OF THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT OR TO JUDICIAL REFERENCE UNDER CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 638 AS PROVIDED HEREIN.
Section 8.08. No Advisory or Fiduciary Responsibility. In connection with all aspects of the Transactions ( including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), each of the City and the Authority acknowledges and agrees that: ( a)( i) any arranging, structuring and other services regarding the Loan Documents provided by the Lender are arm’ s-length commercial transactions between the City and the Authority and its Affiliates on the one hand, and the Lender on the other hand, (ii) the City and the Authority have each consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (iii) the City and the Authority are each capable of evaluating, and understands and accepts, the terms, risks and conditions of the Transactions; ( b)(i) the Lender is and has been acting solely as a principal and has not been, is not, and will not be acting as an advisor, agent or fiduciary for the City, the Authority or any other Person and (ii) the Lender does not have any obligation to the City or the Authority with respect to the Transactions, except those obligations expressly set forth herein; and ( c) the Lender may be engaged in a broad range of transactions that involve interests that differ from those of the City and the Authority, and Lender does not have any obligation to disclose any of such interests to the City or the Authority. To the fullest extent permitted by Applicable Law, each of the City and the Authority hereby waives and releases any claims that it may have against the Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of the Transactions.
Section 8.09. Entire Agreement. The Loan Documents constitute the entire understanding and agreement between the City, the Authority and the Lender with respect to the Transactions, and fully supersede all prior or contemporaneous written or oral understandings, courses of dealing and agreements between the City, the Authority and the Lender with respect to the matters addressed in the Loan Documents. In particular, and without limitation, the Loan Documents supersede any commitment by the Lender to extend credit to the City and the Authority and all such agreements or commitments are merged into the Loan Documents. Except as incorporated in writing into the Loan Documents, there are no representations, understandings, stipulations, agreements or promises, oral or written, with respect to the matters addressed in the Loan Documents.
Section 8.10. Duration. All representations and warranties of the City and the Authority contained herein or made in connection herewith shall survive the making of and shall not be waived by the execution and delivery of the Loan Documents, or any investigation by any party hereto or the approval of any Advances. All covenants and agreements of the City and the Authority contained herein shall continue in full force and effect from and after the Closing Date until all Obligations payable to the Lender have been indefeasibly paid in full and fully discharged at which time this Agreement shall terminate; provided, however, that the obligations of the City and/or the Authority, respectively, under Sections 2.03, 2.04, 2.05, 2.06 and 8.01 and under each other provision of any Loan Document granting a right of indemnity or reimbursement in favor of the Lender shall survive the termination of this Agreement.
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Section 8.11. Counterparts. This Agreement may be executed in any number of counterparts by the parties hereto each of which, when so executed, shall be deemed an original, but all such counterparts shall constitute but one and the same instrument.
Section 8.12. Successors, Assigns and Participations.
a) Successors and Assigns Generally. This Agreement is a continuing obligation and shall be binding upon each of the City and the Authority and their respective successors, transferees and assigns and shall inure to the benefit of the holders of the Revolving Notes and their respective permitted successors, transferees and assigns. Neither the City nor the Authority may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Lender. The Lender reserves the right to sell, assign, transfer, negotiate or grant participations in all or any part of, or any interest in, Lender’ s rights and benefits under each of the Loan Documents. In connection therewith, the Lender may disclose all documents and information which the Lender now has or may hereafter acquire relating to any credit subject hereto, the Authority or its business, any guarantor hereunder or the business of such guarantor, if any, or any collateral required hereunder. The Lender may at any time and from time to time enter into participation agreements in accordance with the provisions of paragraph ( b) of this Section. The Lender may at any time pledge or assign a security interest subject to the restrictions of paragraph ( c) of this Section.
b) Participations. The Lender shall have the right to grant participations in all or a portion of the Lender’ s interest in the Revolving Notes, this Agreement and the other Loan Documents to one or more other banking institutions; provided, however, that ( i) no such participation by any such participant shall in any way affect the obligations of the Lender hereunder, ( ii) the City and the Authority shall be required to deal only with the Lender, with respect to any matters under this Agreement, the Revolving Notes and the other Loan Documents and no such participant shall be entitled to enforce any provision hereunder against the City and the Authority, and ( iii) the Lender provides notice of the grant of any participation hereunder, provided that failure of the Lender to provide such notice shall not constitute a default hereunder and shall not affect the validity of such participation. c) Certain Pledges. The Lender may at any time pledge or grant a security interest in all or any portion of its rights under the Revolving Notes, this Agreement and the other Loan Documents to secure obligations of the Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release the Lender from any of its obligations hereunder or substitute any such pledgee or assignee for the Lender as a party hereto.
Section 8.13. No Right of Setoff. Lender shall have no right of setoff against any funds of the Authority or the City.
Section 8.14. Electronic Signatures. The parties agree that the electronic signature of a party to this Agreement shall be as valid as an original signature of such party and shall be effective to bind such party to this Agreement. The parties agree that any electronically signed document including this Agreement) shall be deemed ( a) to be “ written” or “in writing,” ( b) to have been Packet Pg. 698 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 60-
signed and (c) to constitute a record established and maintained in the ordinary course of business and an original written record when printed from electronic files. Such paper copies or “printouts,” if introduced as evidence in any judicial, arbitral, mediation or administrative proceeding, will be admissible as between the parties to the same extent and under the same conditions as other original business records created and maintained in documentary form. No party shall contest the admissibility of true and accurate copies of electronically signed documents on the basis of the best evidence rule or as not satisfying the business records exception to the hearsay rule. For purposes hereof, “ electronic signature” means a manually signed original signature that is then transmitted by electronic means; “ transmitted by electronic means” means sent in the form of a facsimile or sent via the internet as a “ pdf” ( portable document format) or other replicating image attached to an e-mail message; and “ electronically signed document” means a document transmitted by electronic means and containing, or to which there is affixed, an electronic signature.
SIGNATURES APPEAR ON THE FOLLOWING PAGE.]
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EXHIBIT A
FORM OF TAX-EXEMPT NOTE]
Dated: October 29, 2020
FOR VALUE RECEIVED, Redding Joint Powers Authority (the “ Authority”), promises to pay to the order of U.S. Bank National Association and its successors and assigns ( the “ Lender”), the lesser of ( a) twenty-five million dollars ($ 25,000,000), and ( b) the aggregate unpaid principal amount of all Tax-Exempt Loans made by the Lender from time to time pursuant to the Revolving Credit Agreement, dated as of October 29, 2020 (together with any amendments or supplements thereto, the “ Agreement”), among the Authority, City of Redding ( the “ City”) and the Lender, on the dates and in the amounts provided for in the Agreement.
Interest. The Authority also promises to pay interest on the unpaid principal amount of this Tax-Exempt Note. This Tax-Exempt Note shall bear interest as set forth in the Agreement.
All determinations of the interest rate borne by this Tax-Exempt Note by the Lender shall be presumed correct, if reasonably determined absent manifest error, by the Authority.
Maturity. This Tax-Exempt Note shall mature on the Maturity Date as set forth in the Agreement.
Advances. Advances hereunder, to the total amount of the principal sum stated above, may be made by the Lender at the written request of (i) the Authority Representative, or such other person as shall be identified to the Lender as so authorized, any one acting alone, who are authorized to request advances and direct the disposition of any advances until written notice of the revocation of such authority is received by the Lender, or (ii) any person, with respect to advances deposited to the credit of any deposit account of the Authority, which advances, when so deposited, shall be conclusively presumed to have been made to or for the benefit of the Authority of the fact that persons other than those authorized to request advances may have authority to draw against such account. The Lender shall have no obligation to determine whether any person requesting an advance is or has been authorized by the Authority.
Payments. All such payments of principal and interest shall be made in lawful money of the United States in immediately available funds to the Lender as indicated in writing by the Lender. Each payment made on this Tax-Exempt Note shall be credited first, to any interest then due and second, to the outstanding principal balance hereof.
Borrowing and Repayment. All Advances made by the Lender and all repayments of the principal thereof shall be recorded by the Lender; provided, however, that the failure of the Lender to make any such recordation shall not affect the obligations of the Authority hereunder or under the Agreement.
Security; Events of Default. This Tax-Exempt Note constitutes a Revolving Note as described in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. Upon the occurrence and continuation Packet Pg. 702 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 2-
of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Tax-Exempt Note shall become, or may be declared to be, immediately due and payable, and shall bear interest at the Default Rate all as provided in the Agreement.
ALL OBLIGATIONS OF THE AUTHORITY HEREUNDER SHALL BE SECURED BY A LIEN ON AND PLEDGE OF AUTHORITY REVENUES. NONE OF THE OBLIGATIONS OF THE AUTHORITY HEREUNDER
SHALL BE A DEBT OF THE AUTHORITY WITHIN THE MEANING OF ANY CONSTITUTIONAL, STATUTORY
OR CHARTER LIMITATION UPON THE CREATION OF GENERAL OBLIGATION INDEBTEDNESS OF THE
AUTHORITY, AND THE AUTHORITY SHALL NOT BE LIABLE FOR THE PAYMENT OF ANY AMOUNTS HEREUNDER OUT OF ANY MONEY OF THE AUTHORITY OTHER THAN THE AUTHORITY REVENUES.
Presentment. Presentment for payment, demand, protest and notice of demand, notice of dishonor, notice of non-payment and all other notices are hereby waived by the Authority, except to the extent expressly provided in the Agreement. No failure to exercise, and no delay in exercising, any rights hereunder on the part of the holder hereof shall operate as a waiver of such rights.
Miscellaneous. The Authority, subject to Applicable Law and the limitations set forth herein and in the Agreement, hereby agrees to pay on demand all reasonable costs and expenses incurred in collecting amounts due hereunder or in enforcing or attempting to enforce any of the Lender’ s rights hereunder, including, but not limited to, reasonable attorneys’ fees and expenses actually incurred if collected by or through an attorney, whether or not suit is filed.
Governing Law. This Note shall be governed by and construed in accordance with the laws of the State of California.
Business Purpose. The Authority represents and warrants that the Advances evidenced by this Tax-Exempt Note will be used for valid corporate purposes of Authority.
IN WITNESS WHEREOF, the undersigned has caused this Tax-Exempt Note to be executed under seal as of the day and year first written above.
REDDING JOINT POWERS FINANCING AUTHORITY
By: ___________________________________
Name: _____________________________
Title: ______________________________
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TAX-EXEMPT NOTE TRANSACTIONS
DATE
ADVANCE
AMOUNT
INTEREST
RATE
AMOUNT OF
PRINCIPAL
REPAID
DATE TO
WHICH
INTEREST
PAID
NOTATION
MADE BY
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto Please insert Social Security or
Taxpayer Identification Number
of Transferee
Please print or typewrite name and address, including zip code, of Transferee) the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints attorney to register the transfer of the within Note on the books kept for registration thereof, with full power of substitution in the premises.
Dated: _____________________________
Signature Guaranteed: ________________
NOTICE: Signature(s) must be guaranteed by
a member or participant of a signature
guarantee program
NOTICE: The signature above must
correspond with the name of the Owner as it
appears upon the front of this Note in every
particular, without alteration or enlargement
or change whatsoever.
Packet Pg. 705 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement)
EXHIBIT B
FORM OF TAXABLE NOTE]
Dated: October 29, 2020
FOR VALUE RECEIVED, Redding Joint Powers Authority (the “ Authority”), promises to pay to the order of U.S. Bank National Association and its successors and assigns ( the “ Lender”), the lesser of ( a) twenty-five million dollars ($ 25,000,000), and ( b) the aggregate unpaid principal amount of all Taxable Loans made by the Lender from time to time pursuant to the Revolving Credit Agreement, dated as of October 29, 2020 (together with any amendments or supplements thereto, the “ Agreement”), among the Authority, City of Redding ( the “ City”) and the Lender, on the dates and in the amounts provided for in the Agreement.
Interest. The Authority also promises to pay interest on the unpaid principal amount of this Taxable Note. This Taxable Note shall bear interest as set forth in the Agreement. All determinations of the interest rate borne by this Taxable Note by the Lender shall be presumed correct, if reasonably determined absent manifest error, by the Authority.
Maturity. This Taxable Note shall mature on the Maturity Date as set forth in the Agreement.
Advances. Advances hereunder, to the total amount of the principal sum stated above, may be made by the Lender at the written request of (i) the Authority Representative, or such other person as shall be identified to the Lender as so authorized, any one acting alone, who are authorized to request advances and direct the disposition of any advances until written notice of the revocation of such authority is received by the Lender, or (ii) any person, with respect to advances deposited to the credit of any deposit account of the Authority, which advances, when so deposited, shall be conclusively presumed to have been made to or for the benefit of the Authority of the fact that persons other than those authorized to request advances may have authority to draw against such account. The Lender shall have no obligation to determine whether any person requesting an advance is or has been authorized by the Authority.
Payments. All such payments of principal and interest shall be made in lawful money of the United States in immediately available funds to the Lender as indicated in writing by the Lender. Each payment made on this Taxable Note shall be credited first, to any interest then due and second, to the outstanding principal balance hereof.
Borrowing and Repayment. All Advances made by the Lender and all repayments of the principal thereof shall be recorded by the Lender; provided, however, that the failure of the Lender to make any such recordation shall not affect the obligations of the Authority hereunder or under the Agreement.
Security; Events of Default. This Taxable Note constitutes a Revolving Note as described in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. Upon the occurrence and continuation of one or Packet Pg. 706 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 2-
more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Taxable Note shall become, or may be declared to be, immediately due and payable, and shall bear interest at the Default Rate all as provided in the Agreement.
ALL OBLIGATIONS OF THE AUTHORITY HEREUNDER SHALL BE SECURED BY A LIEN ON AND PLEDGE OF AUTHORITY REVENUES. NONE OF THE OBLIGATIONS OF THE AUTHORITY HEREUNDER
SHALL BE A DEBT OF THE AUTHORITY WITHIN THE MEANING OF ANY CONSTITUTIONAL, STATUTORY
OR CHARTER LIMITATION UPON THE CREATION OF GENERAL OBLIGATION INDEBTEDNESS OF THE
AUTHORITY, AND THE AUTHORITY SHALL NOT BE LIABLE FOR THE PAYMENT OF ANY AMOUNTS HEREUNDER OUT OF ANY MONEY OF THE AUTHORITY OTHER THAN THE AUTHORITY REVENUES.
Presentment. Presentment for payment, demand, protest and notice of demand, notice of dishonor, notice of non-payment and all other notices are hereby waived by the Authority, except to the extent expressly provided in the Agreement. No failure to exercise, and no delay in exercising, any rights hereunder on the part of the holder hereof shall operate as a waiver of such rights.
Miscellaneous. The Authority, subject to Applicable Law and the limitations set forth herein and in the Agreement, hereby agrees to pay on demand all reasonable costs and expenses incurred in collecting amounts due hereunder or in enforcing or attempting to enforce any of the Lender’ s rights hereunder, including, but not limited to, reasonable attorneys’ fees and expenses actually incurred if collected by or through an attorney, whether or not suit is filed.
Governing Law. This Note shall be governed by and construed in accordance with the laws of the State of California.
Business Purpose. The Authority represents and warrants that the Advances evidenced by this Taxable Note will be used for valid corporate purposes of Authority.
IN WITNESS WHEREOF, the undersigned has caused this Taxable Note to be executed under seal as of the day and year first written above.
REDDING JOINT POWERS FINANCING AUTHORITY
By: ___________________________________
Name: _____________________________
Title: ______________________________
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TAXABLE NOTE TRANSACTIONS
DATE
ADVANCE
AMOUNT
INTEREST
RATE
AMOUNT OF
PRINCIPAL
REPAID
DATE TO
WHICH
INTEREST
PAID
NOTATION
MADE BY
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto Please insert Social Security or
Taxpayer Identification Number
of Transferee
Please print or typewrite name and address, including zip code, of Transferee) the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints attorney to register the transfer of the within Note on the books kept for registration thereof, with full power of substitution in the premises.
Dated: _____________________________
Signature Guaranteed: ________________
NOTICE: Signature(s) must be guaranteed by
a member or participant of a signature
guarantee program.
NOTICE: The signature above must
correspond with the name of the Owner as it
appears upon the front of this Note in every
particular, without alteration or enlargement
or change whatsoever.
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EXHIBIT C
FORM OF TERM LOAN NOTE]
Dated: October 29, 2020
FOR VALUE RECEIVED, Redding Joint Powers Authority (the “ Authority”), promises to pay to the order of U.S. Bank National Association and its successors and assigns ( the “ Lender”), the lesser of ( a) twenty-five million dollars ($ 25,000,000), and ( b) the aggregate unpaid principal amount of the Term Loan made by the Lender to the Authority pursuant to Section 2.01(i) of the Revolving Credit Agreement, dated as of October 29, 2020 ( together with any amendments or supplements thereto, the “ Agreement”), among the Authority, City of Redding ( the “ City”) and the Lender, on the dates and in the amounts provided for in the Agreement.
Interest. The Authority also promises to pay interest on the unpaid principal amount of this Term Loan Note. This Term Loan Note shall bear interest as set forth in the Agreement. All determinations of the interest rate borne by this Term Loan Note by the Lender shall be presumed correct, if reasonably determined absent manifest error, by the Authority.
Maturity. This Term Loan Note shall mature on the Term Loan Maturity Date as set forth in the Agreement.
Payments. All such payments of principal and interest shall be made in lawful money of the United States in immediately available funds to the Lender as indicated in writing by the Lender. Each payment made on this Term Loan Note shall be credited first, to any interest then due and second, to the outstanding principal balance hereof.
Borrowing and Repayment. Any Term Loan made by the Lender and all repayments of the principal thereof shall be recorded by the Lender; provided, however, that the failure of the Lender to make any such recordation shall not affect the obligations of the Authority hereunder or under the Agreement.
Security; Events of Default. This Term Loan Note constitutes a Term Loan Note as described in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Term Loan Note shall become, or may be declared to be, immediately due and payable, and shall bear interest at the Default Rate all as provided in the Agreement.
ALL OBLIGATIONS OF THE AUTHORITY HEREUNDER SHALL BE SECURED BY A LIEN ON AND PLEDGE OF AUTHORITY REVENUES. NONE OF THE OBLIGATIONS OF THE AUTHORITY HEREUNDER
SHALL BE A DEBT OF THE AUTHORITY WITHIN THE MEANING OF ANY CONSTITUTIONAL, STATUTORY
OR CHARTER LIMITATION UPON THE CREATION OF GENERAL OBLIGATION INDEBTEDNESS OF THE Packet Pg. 710 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 2-
AUTHORITY, AND THE AUTHORITY SHALL NOT BE LIABLE FOR THE PAYMENT OF ANY AMOUNTS HEREUNDER OUT OF ANY MONEY OF THE AUTHORITY OTHER THAN THE AUTHORITY REVENUES.
Presentment. Presentment for payment, demand, protest and notice of demand, notice of dishonor, notice of non-payment and all other notices are hereby waived by the Authority, except to the extent expressly provided in the Agreement. No failure to exercise, and no delay in exercising, any rights hereunder on the part of the holder hereof shall operate as a waiver of such rights.
Miscellaneous. The Authority, subject to Applicable Law and the limitations set forth herein and in the Agreement, hereby agrees to pay on demand all reasonable costs and expenses incurred in collecting amounts due hereunder or in enforcing or attempting to enforce any of the Lender’ s rights hereunder, including, but not limited to, reasonable attorneys’ fees and expenses actually incurred if collected by or through an attorney, whether or not suit is filed.
Governing Law. This Term Loan Note shall be governed by and construed in accordance with the laws of the State of California.
Business Purpose. The Authority represents and warrants that the Advances evidenced by this Term Loan Note will be used for valid corporate purposes of Authority.
IN WITNESS WHEREOF, the undersigned has caused this Term Loan Note to be executed under seal as of the day and year first written above.
REDDING JOINT POWERS FINANCING AUTHORITY
By: ___________________________________
Name: _____________________________
Title: ______________________________
Packet Pg. 711 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 3-
TERM LOAN NOTE TRANSACTIONS
DATE
ADVANCE
AMOUNT
INTEREST
RATE
AMOUNT OF
PRINCIPAL
REPAID
DATE TO
WHICH
INTEREST
PAID
NOTATION
MADE BY
Packet Pg. 712 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 4-
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto Please insert Social Security or
Taxpayer Identification Number
of Transferee
Please print or typewrite name and address, including zip code, of Transferee) the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints attorney to register the transfer of the within Note on the books kept for registration thereof, with full power of substitution in the premises.
Dated: _____________________________
Signature Guaranteed: ________________
NOTICE: Signature(s) must be guaranteed by
a member or participant of a signature
guarantee program
NOTICE: The signature above must
correspond with the name of the Owner as it
appears upon the front of this Note in every
particular, without alteration or enlargement
or change whatsoever.
Packet Pg. 713 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement)
EXHIBIT D
FORM OF REQUEST FOR ADVANCE]
REQUEST FOR ADVANCE AND REVOLVING LOAN
U.S. Bank National Association
Shelbyville Main
100 North Side Square
CN-TN-1732
Shelbyville, TN 37160
Attention: Christy Tobish
Telephone: ( 931) 680-0535
With a copy to:
U.S. Bank National Association
3 Bryant Park
1095 Avenue of the Americas, 13th Floor
New York, NY 10036
Attention: Jane Park
Facsimile: ( 917) 256-2830
Telephone: ( 646) 935-4518
Ladies and Gentlemen:
The undersigned refers to the Revolving Credit Agreement, dated as of October 29, 2020 together with any amendments or supplements thereto, the “ Agreement”), among The City of Redding (the “ City”), Redding Joint Powers Financing Authority (the “ Authority”) and U.S. Bank National Association ( the “ Lender”) ( the terms defined therein being used herein as therein defined) and hereby requests, pursuant to Section 2.01 of the Agreement, that the Lender makes an Advance under the Agreement, and in that connection sets forth below the following information relating to such Advance (the “ Proposed Advance”):
1. The Business Day of the Proposed Advance is ___________, 20__ ( the Advance Date”), which is at least two (2) Business Days after the date hereof.
2. The principal amount of the Proposed Advance is $___________, which, when added to all outstanding Advances, is not greater than the Commitment as of the Advance Date set forth in 1 above.
3. The Proposed Advance will be evidenced by the [ Tax-Exempt/Taxable Note] (as defined in the Agreement).
Packet Pg. 714 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 2-
4. The interest rate with respect to the Proposed Advance shall be [ the Tax-Exempt Rate] [ the Taxable Loan Rate].
The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the Advance Date, before and after giving effect thereto:
a) the undersigned is authorized to sign this Request for Advance on behalf of the Authority;
b) the representations and warranties of the Authority set forth in Section 4.01 of the Agreement and in each other Loan Document shall be true and correct in all material respects on the date hereof and on such Advance Date as though made on the date hereof and on the date of Advance Date; and
c) no Default or Event of Default shall have occurred and be continuing on such Advance Date.
The Proposed Advance shall be made by the Lender by wire transfer of immediately available funds to the undersigned in accordance with the instructions set forth below:
Insert wire instructions]
Very truly yours,
REDDING JOINT POWERS FINANCING AUTHORITY
By: ___________________________________
Name: _____________________________
Title: ______________________________
Packet Pg. 715 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement)
EXHIBIT E
FORM OF REQUEST FOR EXTENSION]
REQUEST FOR EXTENSION
Date]
U.S. Bank National Association
3 Bryant Park
1095 Avenue of the Americas, 13th Floor
New York, NY 10036
Attention: Bhalachandra Mehendale
Facsimile: ( 917) 256-2830
Telephone: ( 917) 326-3970
With a copy to:
U.S. Bank National Association
3 Bryant Park
1095 Avenue of the Americas, 13th Floor
New York, NY 10036
Attention: Jane Park
Facsimile: ( 917) 256-2830
Telephone: ( 646) 935-4518
Ladies and Gentlemen:
Reference is made to the Revolving Credit Agreement dated as of October 29, 2020 together with any amendments or supplements thereto, the “ Agreement”) by and among the undersigned, the City of Redding ( the “ City”), Redding Joint Powers Financing Authority (the Authority ”) and U.S. Bank National Association ( the “ Lender”). All terms defined in the Agreement are used herein as defined therein.
The Authority hereby requests, pursuant to Section 2.10 of the Agreement, that the Maturity Date with respect to the Available Commitment as of the date hereof be extended by to _____________, ______. Pursuant to such Section 2.10, we have enclosed with this request the following information:
1. a reasonably detailed description of any and all Defaults that have occurred and are continuing;
2. confirmation that all representations and warranties of the Authority and the City as set forth in Article IV of the Agreement and each Loan Document are true and Packet Pg. 716 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 2-
correct as though made on the date hereof and that no Default or Event of Default has occurred and is continuing on the date hereof; and
3. any other pertinent information previously requested by the Lender.
The Lender is asked to notify the Authority of its decision with respect to this request within 60 days of the date of receipt hereof. If the Lender fails to notify the Authority of the Lender’ s decision within such 60-day period, the Lender shall be deemed to have rejected such request.
Very truly yours,
CITY OF REDDING
By: ___________________________________
Name: _____________________________
Title: ______________________________
REDDING JOINT POWERS FINANCING AUTHORITY
By: __________________________________
Name: ____________________________
Title: ____________________________
Packet Pg. 717 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement)
EXHIBIT F
FORM OF NOTICE OF EXTENSION]
NOTICE OF EXTENSION
Date]
Redding Joint Powers Financing Authority
777 Cypress Avenue
Redding, California 96001
Attention: Allyn Feci Clark, Treasurer of the Authority Telephone: ( 530) 225-4368
E-mail: aclark@cityofredding. org
City of Redding
777 Cypress Avenue
Redding, California 96001
Attention: Allyn Feci Clark, Director of Finance of the City Telephone: ( 530) 225-4368
E-mail: aclark@cityofredding. org
Ladies and Gentlemen:
We hereby notify you that pursuant to Section 2.10 of the Revolving Credit Agreement dated as of October 29, 2020, by and among the City of Redding, Redding Joint Powers Financing Authority, and U.S. Bank National Association (the “ Lender”), the Maturity Date with respect to the Commitment as of the date hereof shall be extended _____ to __________, ______. Your acknowledgment hereof shall be deemed to be your representation and warranty that all your representations and warranties contained in Article IV of the Agreement and each other Related Document are true and correct and will be true and correct as of the date hereof and that no Default or Event of Default has occurred and is continuing.
Packet Pg. 718 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 2-
Very truly yours,
U.S. BANK NATIONAL ASSOCIATION
By: ___________________________________
Name: _____________________________
Title: ______________________________
Packet Pg. 719 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement)
EXHIBIT G
FORM OF NOTICE OF TERMINATION OR REDUCTION]
NOTICE OF TERMINATION OR REDUCTION
Date]
U.S. Bank National Association
3 Bryant Park
1095 Avenue of the Americas, 13th Floor
New York, NY 10036
Attention: Bhalachandra Mehendale
Facsimile: ( 917) 256-2830
Telephone: ( 917) 326-3970
With a copy to:
U.S. Bank National Association
3 Bryant Park
1095 Avenue of the Americas, 13th Floor
New York, NY 10036
Attention: Jane Park
Facsimile: ( 917) 256-2830
Telephone: ( 646) 935-4518
Ladies and Gentlemen:
Re: Revolving Credit Agreement dated as of October 29, 2020 The Redding Joint Powers Financing Authority (the “ Authority”), through its undersigned, an Authority Representative, hereby certifies to U.S. Bank National Association (the “ Lender”), with reference to the Revolving Credit Agreement dated as of October 29, 2020 (together with any amendments or supplements thereto, the “ Agreement”), by and among the Authority, City of Redding, and the Lender (the terms defined therein and not otherwise defined herein being used herein as therein defined):
1) The Authority hereby informs you that the Commitment is terminated in accordance with the Agreement.]
OR
Packet Pg. 720 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 2-
1) The Authority hereby informs you that the Available Commitment is reduced from [ insert amount as of the date of Certificate] to [ insert new amount], such reduction to be effective on __________.]
Packet Pg. 721 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 3-
IN WITNESS WHEREOF, the Authority has executed and delivered this Notice this ______ day of __________, ______.
REDDING JOINT POWERS FINANCING AUTHORITY
By: ___________________________________
Name: _____________________________
Title: ______________________________
CITY OF REDDING
By: ___________________________________
Name: _____________________________
Title: ______________________________
Packet Pg. 722 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement)
EXHIBIT H
FORM OF NOTICE OF REDUCTION]
NOTICE OF REDUCTION
Date]
Redding Joint Powers Financing Authority
777 Cypress Avenue
Redding, California 96001
Attention: Allyn Feci Clark, Treasurer of the Authority Telephone: ( 530) 225-4368
E-mail: aclark@cityofredding. org
City of Redding
777 Cypress Avenue
Redding, California 96001
Attention: Allyn Feci Clark, Director of Finance of the City Telephone: ( 530) 225-4368
E-mail: aclark@cityofredding. org
Ladies and Gentlemen:
We hereby notify you that pursuant to Section 2.13 of the Revolving Credit Agreement dated as of October 29, 2020, by and between the Redding Joint Powers Financing Authority (the Authority”), the City of Redding, and U.S. Bank National Association ( the “ Lender”), the Available Commitment is reduced from [insert amount as of the date of Certificate] to [insert new amount], such reduction to be effective on ______________.
Packet Pg. 723 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 2-
Very truly yours,
U.S. BANK NATIONAL ASSOCIATION
By: ___________________________________
Name: _____________________________
Title: ______________________________
Packet Pg. 724 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement)
EXHIBIT I
FORM OF LETTER OF CITY REPRESENTATIVE
This Compliance Certificate ( this “ Certificate”) is furnished to U.S. Bank National Association ( the “ Lender”) pursuant to that certain Revolving Credit Agreement dated as of October 29, 2020 (the “ Agreement”), among City of Redding ( the “ City”), Redding Joint Powers Financing Authority (the “ Authority”), and the Lender. Unless otherwise defined herein, the terms used in this Certificate shall have the meanings assigned thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected [ title of City Representative] of the City;
2. I have reviewed the terms of the Agreement and I have made, or have caused to be made under my supervision, a detailed review of the transactions and conditions of the City during the accounting period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I have no knowledge of, the existence of any condition or the occurrence of any event which constitutes a Default or Event of Default during or at the end of the accounting period covered by the attached financial statements or as of the date of this Certificate, except as set forth below; and
4. The financial statements required by Section 5.02 of the Agreement and being furnished to you concurrently with this certificate fairly represent the consolidated financial condition of the City in accordance with GAAP (subject to year end adjustments) as of the dates and for the periods covered thereby.
Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the nature of the condition or event, the period during which it has existed and the action which the Obligated Group has taken, is taking, or proposes to take with respect to each such condition or event:
Signature Page to Immediately Follow]
Packet Pg. 725 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 2-
The foregoing certifications and the financial statements delivered with this Certificate in support hereof, are made and delivered this _________ day of _______________, 20__.
CITY OF REDDING
By: ___________________________________
Name: _____________________________
Title: ______________________________
Packet Pg. 726 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 4133- 9573- 8662.4
SUBORDINATE INSTALLMENT SALE AGREEMENT
between the
CITY OF REDDING
and the
REDDING JOINT POWERS FINANCING AUTHORITY
RELATING TO A CERTAIN
ELECTRIC SYSTEM PROJECT
Dated as of October 1, 2020
Packet Pg. 727 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement)
TABLE OF CONTENTS
Page
i
4133- 9573- 8662.4
ARTICLE I DEFINITIONS ........................................................................................................... 2 SECTION 1.01. DEFINITIONS ..................................................................................... 2
ARTICLE II ACQUISITION, CONSTRUCTION, SALE AND PURCHASE OF THE PROJECT ............................................................................................................ 4 SECTION 2.01. ACQUISITION, CONSTRUCTION, SALE AND
PURCHASE OF THE PROJECT ....................................................... 4 SECTION 2.02. TITLE TO THE PROJECT ................................................................. 4 ARTICLE III INSTALLMENT PAYMENTS .............................................................................. 5 SECTION 3.01. PURCHASE PRICE ............................................................................ 5 SECTION 3.02. PAYMENT OF THE INSTALLMENT PAYMENTS ........................ 5 SECTION 3.03. PREPAYMENT OF THE INSTALLMENT PAYMENTS ................ 5 SECTION 3.04. PLEDGE OF NET REVENUES ......................................................... 5 ARTICLE IV COVENANTS OF THE CITY ............................................................................... 6 SECTION 4.01. COMPLIANCE WITH INSTALLMENT SALE
AGREEMENT ..................................................................................... 6 SECTION 4.02. TAX COVENANTS ............................................................................ 6 SECTION 4.03. PROTECTION OF SECURITY AND RIGHTS OF
AUTHORITY ...................................................................................... 6 SECTION 4.04. FURTHER ASSURANCES ................................................................ 6 ARTICLE V EVENTS OF DEFAULT AND REMEDIES OF THE AUTHORITY ................... 6 SECTION 5.01. EVENTS OF DEFAULT ..................................................................... 6 SECTION 5.02. OTHER REMEDIES OF THE AUTHORITY .................................... 7 SECTION 5.03. NON-WAIVER.................................................................................... 8 SECTION 5.04. REMEDIES NOT EXCLUSIVE ......................................................... 8 SECTION 5.05. APPLICATION OF MONEYS COLLECTED ................................... 8 ARTICLE VI DISCHARGE OF OBLIGATIONS ........................................................................ 8 SECTION 6.01. DISCHARGE OF OBLIGATIONS ..................................................... 8 ARTICLE VII MISCELLANEOUS .............................................................................................. 9 SECTION 7.01. LIABILITY OF CITY LIMITED TO NET REVENUES ................... 9 SECTION 7.02. BENEFITS OF INSTALLMENT SALE AGREEMENT
LIMITED TO PARTIES AND BENEFICIARY ................................ 9 SECTION 7.03. ASSIGNMENT .................................................................................... 9 Packet Pg. 728 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) ii
4133- 9573- 8662
SECTION 7.04. SUCCESSOR IS DEEMED INCLUDED IN ALL
REFERENCES TO PREDECESSOR ................................................. 9 SECTION 7.05. WAIVER OF PERSONAL LIABILITY ........................................... 10 SECTION 7.06. ARTICLE AND SECTION HEADINGS, GENDER AND
REFERENCES .................................................................................. 10 SECTION 7.07. PARTIAL INVALIDITY .................................................................. 10 SECTION 7.08. NET CONTRACT ............................................................................. 10 SECTION 7.09. CALIFORNIA LAW ......................................................................... 10 SECTION 7.10. NOTICES ........................................................................................... 10 SECTION 7.11. EFFECTIVE DATE ........................................................................... 11 SECTION 7.12. AMENDMENTS ............................................................................... 11 SECTION 7.13. EXECUTION IN COUNTERPARTS ............................................... 11 Packet Pg. 729 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 4133- 9573- 8662.4
SUBORDINATE INSTALLMENT SALE AGREEMENT
This Subordinate Installment Sale Agreement, dated as of October 1, 2020 ( this Installment Sale Agreement”), between the CITY OF REDDING, a municipal corporation duly organized and existing under and by virtue of the laws of the State of California (the “ City”), and the REDDING JOINT POWERS FINANCING AUTHORITY (the “ Authority”), a public entity and agency, duly organized and existing pursuant to an agreement entitled “ Joint Exercise of Powers Agreement by and between the City and the Housing Authority of the City of Redding,” W I T N E S S E T H:
WHEREAS, the City is authorized by law to acquire facilities for the generation, transmission and distribution of electricity; and
WHEREAS, pursuant to such authority, the City owns and operates an Electric System as defined herein); and
WHEREAS, the City has further determined that the design, acquisition and construction in the manner described herein of certain facilities for the benefit of the Electric System ( the Project”) is necessary and proper for City purposes and uses under the terms of applicable law; and
WHEREAS, the Authority has determined to acquire and construct the Electric System Project for, and sell the Electric System Project to, the City; and WHEREAS, the Authority and the City have entered into a Credit Agreement (as defined herein) pursuant to which the Authority will issue Notes ( as defined herein) in one or more series to evidence Loans made by the Bank from time to time under the terms and conditions of the Credit Agreement to finance or refinance the Project; and WHEREAS, the City has determined to make installment sale payments as hereinafter described to the Authority for the payment of the costs of the design, acquisition and construction of the Project and the incidental costs and expenses related thereto paid by the Authority, including, without limitation, to enable the Authority to pay the principal of and interest on the Loans and to satisfy its other obligations under the Credit Agreement; and WHEREAS, all acts, conditions and things required by law to exist, to have happened and to have been performed precedent to and in connection with the execution and delivery of this Installment Sale Agreement do exist, have happened and have been performed in regular and due time, form and manner as required by law, and the parties hereto are now duly authorized to execute and enter into this Installment Sale Agreement;
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND OF THE
MUTUAL AGREEMENTS AND COVENANTS CONTAINED HEREIN AND FOR OTHER
VALUABLE CONSIDERATION, THE PARTIES HERETO DO HEREBY AGREE AS FOLLOWS:
Packet Pg. 730 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 2 4133- 9573- 8662
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Unless the context otherwise requires, the terms defined in this section shall for all purposes hereof and of any amendment hereof and of any report or other document mentioned herein or therein have the meanings defined herein, the following definitions to be equally applicable to both the singular and plural forms of any of the terms defined herein.
Authority
Authority” means the Redding Joint Powers Financing Authority, a joint exercise of powers entity duly organized and existing under and by virtue of the laws of the State of California.
Bank
Bank” means U.S. Bank National Association, and its successor and assigns.
City
City” means the City of Redding, a municipal corporation, duly organized and existing under and by virtue of the laws of the State of California.
Code
Code” means the Internal Revenue Code of 1986 and the regulations of the United States Department of the Treasury issued thereunder, and in this regard reference to any particular section of the Code shall include reference to all successor sections of the Code.
Credit Agreement
Credit Agreement” means the Revolving Credit Agreement, dated as of October 29, 2020, among the Authority, the City and the Bank, as originally executed and as it may from time to time be amended.
Electric System
Electric System” means the electric utility system of the City, comprising all electric generation, transmission and distribution facilities and all general plant facilities related thereto now owned by the City and all other properties, structures or works for the generation, transmission and distribution of electricity hereafter acquired by the City and determined by the City to be a part of the Electric System, including all contractual rights for electricity and capacity; together with all additions, betterments, extensions or improvements to such facilities, properties, structures or works or any part thereof hereafter acquired.
Packet Pg. 731 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 3 4133- 9573- 8662
Event of Default
Event of Default” means an event defined as such in Section 5.01 hereof.
Installment Payments
Installment Payments” means the payments to be made by the City to the Authority for the purchase of the Project, which shall in any event be in an amount sufficient to satisfy the payment obligations of the Authority under the Credit Agreement as and when due thereunder, as further set forth in Section 3.02 hereof.
Installment Sale Agreement
Installment Sale Agreement” means this Subordinate Installment Sale Agreement, dated as of October 1, 2020, between the City and the Authority, as originally executed and as it may from time to time be amended.
Loans
Loans” shall have the meaning ascribed thereto in the Credit Agreement.
Net Revenues
Net Revenues” shall have the meaning set forth in the Senior Lien Documents.
Project
Project” means the means the improvements, additions, and betterments to, and extensions and replacements of, the Electric System financed or refinanced with the proceeds of the Notes.
Senior Lien Documents
Senior Lien Documents” means the 2008 Installment Sale Agreement, dated as of April 1, 2008, between the City and the Authority, the 2015 Installment Sale Agreement, dated as of December 1, 2015, between the City and the Authority, the Indenture, dated as of March 1, 2017, between the City and U.S. Bank National Association, as Trustee, the Indenture, dated as of March 1, 2018, between the City and U.S. Bank National Association and any other agreements or indentures providing for the payment of installment payments or principal and interest on bonds payable from Net Revenues on a parity with the Senior Lien Obligations.
Senior Lien Obligations
Senior Lien Obligations” means the installment payments and the principal and interest payment on bonds required to be paid pursuant the Senior Lien Documents.
Packet Pg. 732 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 4 4133- 9573- 8662
Tax Certificate
Tax Certificate” means each Tax Certificate executed by the Authority and the City at the time of issuance of any Tax-Exempt Notes relating to, among other things, the requirements of Section 148 of the Code, as each is originally executed and as each may from time to time be amended or supplemented.
Tax-Exempt Note
Tax-Exempt Note” shall have the meaning given such term in the Credit Agreement.
ARTICLE II
ACQUISITION, CONSTRUCTION, SALE AND PURCHASE OF THE PROJECT SECTION 2.01. Acquisition, Construction, Sale and Purchase of the Project. The Authority agrees to acquire and construct the Project and to sell the Project to the City, and the City agrees to purchase the Project from the Authority, all as provided herein. In order to implement this provision, the Authority hereby appoints the City as its agent for the purpose of such acquisition and construction, and the City hereby agrees to enter into such engineering, design and construction contracts and to execute such purchase orders as may be necessary, as agent for the Authority, to provide for the complete acquisition and construction of the Project, and the City hereby agrees that as such agent it will cause the acquisition and construction of the Project to be diligently completed.
In the event the Authority fails to observe or perform any agreement, condition, covenant or term contained herein required to be observed or performed by it, the City may institute such action or proceeding against the Authority as the City may deem necessary or convenient to compel the observance or performance of such agreement, condition, covenant or term, or to recover damages for the nonobservance or nonperformance thereof. The City may, at its own cost and expense and in its own name or in the name of the Authority, prosecute or defend any action or proceeding or take any other action involving third persons which the City deems reasonably necessary in order to protect or secure its rights hereunder, and in such event the Authority agrees to cooperate fully with the City and to take all action necessary to effect the substitution of the City for the Authority in any action or proceeding if the City shall so request.
SECTION 2.02. Title to the Project. Upon the acquisition or construction of each component of the Project by the City, as agent for the Authority, all right, title and interest therein shall automatically vest in the City, which automatic vesting shall occur without further action by the Authority; provided, that the Authority shall, if requested by the City or if necessary to assure such automatic vesting of such right, title or interest, execute and deliver any and all documents required to assure such vesting.
Packet Pg. 733 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 5 4133- 9573- 8662
ARTICLE III
INSTALLMENT PAYMENTS
SECTION 3.01. Purchase Price. The purchase price to be paid by the City hereunder to the Authority for the purchase of the Project is equal to the aggregate amount of the principal installments of the Installment Payments, which Purchase Price shall be payable in installments of principal together with interest thereon, on the dates and in the amounts sufficient for the Authority to pay the principal of and interest on the Loans, together with any other amounts payable by the Authority under the Credit Agreement, as and when due, all as provided in Section 3.02 hereof (subject to any right of prepayment provided in Section 3.03 hereof).
SECTION 3.02. Payment of the Installment Payments. The City shall, subject to any right of prepayment provided in Section 3.03 hereof, pay the Authority the purchase price of the Project by paying, without any offset or deduction of any kind, the following amounts on the following dates: ( i) the principal installments of the Installment Payments, which principal installments shall be paid in the amounts and on the dates that principal of the Loans becomes due and payable under the Credit Agreement ( whether due to maturity, prepayment or otherwise); ( ii) the interest installments of the Installment Payments, which interest installments shall be paid in the amounts and on the dates that interest on the Loans becomes due and payable under the Credit Agreement; and (iii) the additional installments of the Installment Payments, which additional installments shall be paid in the amounts and on the dates that any amounts ( other than principal of or interest on the Loans) become due and payable by the Authority under the Credit Agreement.
SECTION 3.03. Prepayment of the Installment Payments. The City may prepay the principal installments of the Installment Payments at the same times, in the same amounts and upon the same terms and conditions as the principal of the Loans may be prepaid under the Credit Agreement, and upon such prepayment the Authority shall prepay the Loans in the same such amount.
Notwithstanding any such prepayment, the City shall not be relieved of its obligations hereunder until all Installment Payments shall have been fully paid.
SECTION 3.04. Pledge of Net Revenues. Subject to the application thereof of the terms and conditions herein provided, all Net Revenues of the Electric System are hereby irrevocably pledged to the payment of the Installment Payments, which pledge shall be subordinate to the pledge of Net Revenues securing the Senior Lien Obligations. This pledge shall constitute a pledge of and charge and second lien upon the Net Revenues of the Electric System for the payment of amounts due with respect to this Installment Sale Agreement in accordance with the terms hereof.
Packet Pg. 734 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 6 4133- 9573- 8662
ARTICLE IV
COVENANTS OF THE CITY
SECTION 4.01. Compliance with Installment Sale Agreement. The City will punctually pay the Installment Payments in strict conformity with the terms hereof, and will faithfully observe and perform all the agreements, conditions, covenants and terms contained herein required to be observed and performed by it, and will not terminate this Installment Sale Agreement for any cause whatsoever, including, without limiting the generality of the foregoing, any acts or circumstances that may constitute failure of consideration, destruction of or damage to the Electric System or the Project, commercial frustration of purpose, any change in the tax or other laws of the United States of America or of the State of California or any political subdivision of either or any failure of the Authority to observe or perform any agreement, condition, covenant or term contained herein required to be observed and performed by it, whether express or implied. The City will, so long as any Installment Payments remain unpaid, apply the Net Revenues as provided in the Senior Lien Documents and herein.
SECTION 4.02. Tax Covenants. The City will at all times do and perform all acts and things permitted by law which are necessary or desirable in order to assure that the interest on the Tax-Exempt Notes will not be included in the gross income of the owners of the Tax-Exempt Notes for federal income tax purposes under the Code and will be exempt from State of California personal income taxes, and will take no action that would result in such interest being so included or not being so exempt. Without limiting the foregoing, the City and the Authority will at all times comply with the requirements of each Tax Certificate executed in connection with the delivery of Tax-Exempt Notes. This covenant shall survive any defeasance or discharge of the Installment Payments pursuant to Article VI or any prepayment of principal installments of the Installment Payments pursuant to Article III.
SECTION 4.03. Protection of Security and Rights of Authority. The City will preserve and protect the security hereof and the rights of the Authority to the Installment Payments hereunder and will warrant and defend such rights against all claims and demands of all persons.
SECTION 4.04. Further Assurances. The City will adopt, deliver, execute and make any and all further assurances, instruments and resolutions as may be reasonably necessary or proper to carry out the intention or to facilitate the performance hereof and for the better assuring and confirming unto the Authority of the rights and benefits provided to it herein.
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES OF THE AUTHORITY
SECTION 5.01. Events of Default. If one or more of the following Events of Default shall happen, that is to say --
a) if default shall be made in the due and punctual payment of any Installment Payment when the same shall become due and payable; Packet Pg. 735 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 7 4133- 9573- 8662
b) if default shall be made by the City in the performance of any of the other agreements or covenants contained herein required to be performed by it, and such default shall have continued for a period of thirty (30) days after the City shall have been given notice in writing of such default by the Authority;
c) if the City shall file a petition or answer seeking arrangement or reorganization under the federal bankruptcy laws or any other applicable law of the United States of America or any state therein, or if a court of competent jurisdiction shall approve a petition filed with or without the consent of the City seeking arrangement or reorganization under the federal bankruptcy laws or any other applicable law of the United States of America or any state therein, or if under the provisions of any other law for the relief or aid of debtors any court of competent jurisdiction shall assume custody or control of the City or of the whole or any substantial part of its property; or
d) if an event of default ( as defined in the Credit Agreement) shall have occurred;
then and in each and every such case during the continuance of such Event of Default the Authority may, by notice in writing to the City, declare the principal amount of the unpaid Installment Payments and the accrued interest thereon to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable, anything contained herein to the contrary notwithstanding; provided that, subject to the provisions of the Credit Agreement and the rights of the Bank thereunder, if at any time after the principal amount of the unpaid Installment Payments and the accrued interest thereon shall have been so declared due and payable and before any judgment or decree for the payment of the money thereby due shall have been obtained or entered the City shall deposit with the Authority a sum sufficient to pay the unpaid principal amount of the Installment Payments due prior to such declaration and the accrued interest thereon, and the reasonable expenses of the Authority, and any and all other defaults known to the Authority (other than in the payment of the principal amount of the unpaid Installment Payments and the interest thereon due and payable solely by reason of such declaration) shall have been made good or cured to the satisfaction of the Authority or provision deemed by the Authority to be adequate shall have been made therefor then and in every case the Authority, by written notice to the City, may rescind and annul such declaration and its consequences, except that no such rescission and annulment shall extend to or shall affect any subsequent default or shall impair or exhaust any right or power consequent thereon.
SECTION 5.02. Other Remedies of the Authority. The Authority shall have the right --
a) by mandamus or other action or proceeding or suit at law or in equity to enforce its rights against the City or any councilmember, officer or employee thereof, and to compel the City or any such councilmember, officer or employee to perform and carry out its duties under agreements and covenants required to be performed by it or him or her contained herein;
b) by suit in equity to enjoin any acts or things which are unlawful or violate the rights of the Authority; or
Packet Pg. 736 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 8 4133- 9573- 8662
c) by suit in equity upon the happening of an Event of Default to require the City and its councilmembers, officers and employees to account as the trustee of an express trust.
SECTION 5.03. Non-Waiver. Nothing in this article or in any other provision hereof shall affect or impair the obligation of the City, which is absolute and unconditional, to pay the Installment Payments to the Authority at their respective due dates or upon prepayment as provided herein, or shall affect or impair the right of the Authority, which is also absolute and unconditional, to institute suit to enforce such payment by virtue of the contract embodied herein.
A waiver of any default or breach of duty or contract by the Authority shall not affect any subsequent default or breach of duty or contract or impair any rights or remedies on any such subsequent default or breach of duty or contract, and no delay or omission by the Authority to exercise any right or remedy accruing upon any default or breach of duty or contract shall impair any such right or remedy or shall be construed to be a waiver of any such default or breach of duty or contract or an acquiescence therein, and every right or remedy conferred upon the Authority by applicable law or by this article may be enforced and exercised from time to time and as often as shall be deemed expedient by the Authority.
If any action, proceeding or suit to enforce any right or exercise any remedy is abandoned or determined adversely to the Authority, the City and the Authority shall be restored to their former positions, rights and remedies as if such action, proceeding or suit had not been brought or taken.
SECTION 5.04. Remedies Not Exclusive. No remedy herein conferred upon or reserved to the Authority is intended to be exclusive of any other remedy, and each such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing in law or in equity or by statute or otherwise and may be exercised without exhausting and without regard to any other remedy conferred by applicable law.
SECTION 5.05. Application of Moneys Collected. Any amounts collected pursuant to action taken under this Article V shall be applied in accordance with the provisions of the Credit Agreement, and to the extent applied to the payment of amounts due on the Notes or other amounts payable by the Authority under the Credit Agreement shall be credited against the Installment Payments.
ARTICLE VI
DISCHARGE OF OBLIGATIONS
SECTION 6.01. Discharge of Obligations.
a) If the City shall pay or cause to be paid all the Installment Payments at the times and in the manner provided herein resulting in the repayment of all amounts payable with respect to the Loans and the Credit Agreement and the termination of the obligation of the Bank to make advances thereunder, then the right, title and interest of the Authority herein and the obligations of the City hereunder shall thereupon cease, terminate, become void and be completely discharged and satisfied, except as provided in Section 4.02.
Packet Pg. 737 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 9 4133- 9573- 8662
b) All or any portion of any unpaid principal installment of the Installment Payments, together with the accrued interest thereon, shall on the date of prepayment therefor be deemed to have been paid within the meaning of and with the effect expressed in subsection (a) of this section if the Bank receives payment of such unpaid principal installment and the interest and prepayment premium, if any, thereon in the manner provided herein and in the Credit Agreement.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Liability of City Limited to Net Revenues. Notwithstanding anything contained herein, the City shall not be required to advance any money derived from any source of income other than the Net Revenues for the payment of the Installment Payments or for the performance of any agreements or covenants required to be performed by it contained herein; provided, that the City may advance money for any such purpose so long as such money is derived from a source legally available for such purpose and may be legally used by the City for such purpose.
The obligation of the City to make the Installment Payments is a special obligation of the City and is payable solely from the Net Revenues as provided herein and does not constitute a debt of the City or the State of California or of any political subdivision thereof within the meaning of any constitutional or statutory debt limitation or restriction. The general fund of the City is not liable, and neither the faith and credit nor the taxing power of the City is pledged, for the payment of the Installment Payments or the performance or satisfaction of any other obligations of the City hereunder.
SECTION 7.02. Benefits of Installment Sale Agreement Limited to Parties and Beneficiary. Except as provided in Sections 7.03 and 7.04, nothing contained herein, expressed or implied, is intended to give to any person other than the City, the Authority and their assigns any right, remedy or claim under or pursuant hereto, and any agreement or covenant required herein to be performed by or on behalf of the City or the Authority shall be for the sole and exclusive benefit of the City, the Authority and their assigns. Anything herein to the contrary notwithstanding, the parties agree that U.S. Bank National Association, as lender under the Credit Agreement, shall be a third party beneficiary hereunder.
SECTION 7.03. Assignment. This Installment Purchase Contract and any rights hereunder may be assigned by the Authority, as a whole or in part, without the necessity of obtaining the prior consent of the City. The City acknowledges the assignment of this Installment Purchase Contract and the Installment Payments by the Authority to U.S. Bank National Association under the Credit Agreement and agrees to perform its obligations herein and therein.
SECTION 7.04. Successor is Deemed Included in all References to Predecessor. Whenever either the City or the Authority is named or referred to herein, such reference shall be deemed to include the successor to the powers, duties and functions that are presently vested in the City or the Authority, and all agreements and covenants required hereby Packet Pg. 738 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 10 4133- 9573- 8662
to be performed by or on behalf of the City or the Authority shall bind and inure to the benefit of the respective successors thereof whether so expressed or not.
SECTION 7.05. Waiver of Personal Liability. No councilmember, officer or employee of the City shall be individually or personally liable for the payment of the Installment Payments, but nothing contained herein shall relieve any councilmember, officer or employee of the City from the performance of any official duty provided by any applicable provisions of law or hereby.
SECTION 7.06. Article and Section Headings, Gender and References. The headings or titles of the several articles and sections hereof and the table of contents appended hereto shall be solely for convenience of reference and shall not affect the meaning, convenience or effect hereof, and words of any gender shall be deemed and construed to include all genders.
All references herein to “ Articles,” “ Sections” and other subdivisions or clauses are to the corresponding articles, sections, subdivisions or clauses hereof; and the words “ hereby,” herein,” “ hereto,” “ herewith,” “ hereunder” and other words of similar import refer to this Installment Purchase Contract as a whole and not to any particular article, section, subdivision or clause hereof.
SECTION 7.07. Partial Invalidity. If any one or more of the agreements or covenants or portions thereof required hereby to be performed by or on the part of the City or the Authority shall be contrary to law, then such agreement or agreements, such covenant or covenants or such portions thereof shall be null and void and shall be deemed separable from the remaining agreements and covenants or portions thereof and shall in no way affect the validity hereof, and the City and the Authority hereby declare that they would have executed this Installment Sale Agreement and each and every other article, section, paragraph, subdivision, sentence, clause and phrase hereof irrespective of the fact that any one or more articles, sections, paragraphs, subdivisions, sentences, clauses or phrases hereof or the application thereof to any person or circumstance may be held to be unconstitutional, unenforceable or invalid.
SECTION 7.08. Net Contract. This Installment Sale Agreement shall be deemed and construed to be a net contract, and the City shall pay absolutely net during the term hereof the Installment Payments and all other payments required hereunder, free of any deductions and without abatement, diminution or set- off whatsoever.
SECTION 7.09. California Law. This Installment Sale Agreement shall be construed and governed in accordance with the laws of the State of California.
SECTION 7.10. Notices. All written notices to be given hereunder shall be given by mail to the party entitled thereto at its address set forth below, or at such other address as such party may provide to the other party in writing from time to time, namely:
If to the City:
City of Redding
777 Cypress Avenue
Redding, CA 96001
Attention: City Attorney
Packet Pg. 739 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 11 4133- 9573- 8662
If to the Authority:
Redding Joint Powers Financing Authority
777 Cypress Avenue
Redding, CA 96001
Attention: City Attorney
SECTION 7.11. Effective Date. This Installment Sale Agreement shall become effective upon its execution and delivery.
SECTION 7.12. Amendments. Subject to the terms of the Credit Agreement, this Installment Sale Agreement may be amended, changed or modified by a written instrument signed on behalf of the Authority and the City by a duly authorized representative of the Authority and the City, respectively.
SECTION 7.13. Execution in Counterparts. This Installment Sale Agreement may be executed in several counterparts, each of which shall be deemed an original, and all of which shall constitute but one and the same instrument.
Packet Pg. 740 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 741 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 4133- 3739- 1912.2
TAXABLE NOTE
Dated: October 29, 2020
FOR VALUE RECEIVED, Redding Joint Powers Authority (the “ Authority”), promises to pay to the order of U.S. Bank National Association and its successors and assigns ( the Lender”), the lesser of (a) twenty-five million dollars ($25,000,000), and (b) the aggregate unpaid principal amount of all Taxable Loans made by the Lender from time to time pursuant to the Revolving Credit Agreement, dated as of October 29, 2020 (together with any amendments or supplements thereto, the “ Agreement”), among the Authority, City of Redding (the “ City”) and the Lender, on the dates and in the amounts provided for in the Agreement.
Interest. The Authority also promises to pay interest on the unpaid principal amount of this Taxable Note. This Taxable Note shall bear interest as set forth in the Agreement. All determinations of the interest rate borne by this Taxable Note by the Lender shall be presumed correct, if reasonably determined absent manifest error, by the Authority.
Maturity. This Taxable Note shall mature on the Maturity Date as set forth in the Agreement.
Advances. Advances hereunder, to the total amount of the principal sum stated above, may be made by the Lender at the written request of (i) the Authority Representative, or such other person as shall be identified to the Lender as so authorized, any one acting alone, who are authorized to request advances and direct the disposition of any advances until written notice of the revocation of such authority is received by the Lender, or (ii) any person, with respect to advances deposited to the credit of any deposit account of the Authority, which advances, when so deposited, shall be conclusively presumed to have been made to or for the benefit of the Authority of the fact that persons other than those authorized to request advances may have authority to draw against such account. The Lender shall have no obligation to determine whether any person requesting an advance is or has been authorized by the Authority.
Payments. All such payments of principal and interest shall be made in lawful money of the United States in immediately available funds to the Lender as indicated in writing by the Lender. Each payment made on this Taxable Note shall be credited first, to any interest then due and second, to the outstanding principal balance hereof.
Borrowing and Repayment. All Advances made by the Lender and all repayments of the principal thereof shall be recorded by the Lender; provided, however, that the failure of the Lender to make any such recordation shall not affect the obligations of the Authority hereunder or under the Agreement.
Security; Events of Default. This Taxable Note constitutes a Revolving Note as described in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Taxable Note shall become, or may be declared to be, immediately due and payable, and shall bear interest at the Default Rate all as provided in the Agreement.
Packet Pg. 742 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 743 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 4133- 3739- 1912.2
TAXABLE NOTE TRANSACTIONS
Date
Advance
Amount Interest Rate
Amount of
Principal
Repaid
Date to
Which
Interest Paid
Notation
Made By
Packet Pg. 744 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 4133- 3739- 1912.2
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto Please insert Social Security or
Taxpayer Identification Number
of Transferee
Please print or typewrite name and address, including zip code, of Transferee) the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints attorney to register the transfer of the within Note on the books kept for registration thereof, with full power of substitution in the premises.
Dated:
Signature Guaranteed:
NOTICE: Signature(s) must be guaranteed by
a member or participant of a signature
guarantee program
NOTICE: The signature above must
correspond with the name of the Owner as it
appears upon the front of this Note in every
particular, without alteration or enlargement
or change whatsoever.
Packet Pg. 745 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 4144- 9370- 9096.2
TAX-EXEMPT NOTE
Dated: October 29, 2020
FOR VALUE RECEIVED, Redding Joint Powers Authority (the “ Authority”), promises to pay to the order of U.S. Bank National Association and its successors and assigns ( the Lender”), the lesser of (a) twenty-five million dollars ($25,000,000), and (b) the aggregate unpaid principal amount of all Tax-Exempt Loans made by the Lender from time to time pursuant to the Revolving Credit Agreement, dated as of October 29, 2020 (together with any amendments or supplements thereto, the “ Agreement”), among the Authority, the City of Redding (the “ City”) and the Lender, on the dates and in the amounts provided for in the Agreement.
Interest. The Authority also promises to pay interest on the unpaid principal amount of this Tax-Exempt Note. This Tax-Exempt Note shall bear interest as set forth in the Agreement.
All determinations of the interest rate borne by this Tax-Exempt Note by the Lender shall be presumed correct, if reasonably determined absent manifest error, by the Authority.
Maturity. This Tax-Exempt Note shall mature on the Maturity Date as set forth in the Agreement.
Advances. Advances hereunder, to the total amount of the principal sum stated above, may be made by the Lender at the written request of (i) the Authority Representative, or such other person as shall be identified to the Lender as so authorized, any one acting alone, who are authorized to request advances and direct the disposition of any advances until written notice of the revocation of such authority is received by the Lender, or (ii) any person, with respect to advances deposited to the credit of any deposit account of the Authority, which advances, when so deposited, shall be conclusively presumed to have been made to or for the benefit of the Authority of the fact that persons other than those authorized to request advances may have authority to draw against such account. The Lender shall have no obligation to determine whether any person requesting an advance is or has been authorized by the Authority.
Payments. All such payments of principal and interest shall be made in lawful money of the United States in immediately available funds to the Lender as indicated in writing by the Lender. Each payment made on this Tax-Exempt Note shall be credited first, to any interest then due and second, to the outstanding principal balance hereof.
Borrowing and Repayment. All Advances made by the Lender and all repayments of the principal thereof shall be recorded by the Lender; provided, however, that the failure of the Lender to make any such recordation shall not affect the obligations of the Authority hereunder or under the Agreement.
Security; Events of Default. This Tax-Exempt Note constitutes a Revolving Note as described in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining Packet Pg. 746 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 747 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 4144- 9370- 9096.2
TAX-EXEMPT NOTE TRANSACTIONS
Date
Advance
Amount Interest Rate
Amount of
Principal
Repaid
Date to
Which
Interest Paid
Notation
Made By
Packet Pg. 748 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 4144- 9370- 9096.2
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto Please insert Social Security or
Taxpayer Identification Number
of Transferee
Please print or typewrite name and address, including zip code, of Transferee) the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints attorney to register the transfer of the within Note on the books kept for registration thereof, with full power of substitution in the premises.
Dated:
Signature Guaranteed:
NOTICE: Signature(s) must be guaranteed by
a member or participant of a signature
guarantee program
NOTICE: The signature above must
correspond with the name of the Owner as it
appears upon the front of this Note in every
particular, without alteration or enlargement
or change whatsoever.
Packet Pg. 749 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 4163- 0336- 3368.2
TERM LOAN NOTE
Dated: October 29, 2020
FOR VALUE RECEIVED, Redding Joint Powers Authority (the “ Authority”), promises to pay to the order of U.S. Bank National Association and its successors and assigns ( the Lender”), the lesser of (a) twenty-five million dollars ($25,000,000), and (b) the aggregate unpaid principal amount of the Term Loan made by the Lender to the Authority pursuant to Section 2.01(i) of the Revolving Credit Agreement, dated as of October 29, 2020 (together with any amendments or supplements thereto, the “Agreement”), among the Authority, City of Redding (the “City”) and the Lender, on the dates and in the amounts provided for in the Agreement.
Interest. The Authority also promises to pay interest on the unpaid principal amount of this Term Loan Note. This Term Loan Note shall bear interest as set forth in the Agreement. All determinations of the interest rate borne by this Term Loan Note by the Lender shall be presumed correct, if reasonably determined absent manifest error, by the Authority.
Maturity. This Term Loan Note shall mature on the Term Loan Maturity Date as set forth in the Agreement.
Payments. All such payments of principal and interest shall be made in lawful money of the United States in immediately available funds to the Lender as indicated in writing by the Lender. Each payment made on this Term Loan Note shall be credited first, to any interest then due and second, to the outstanding principal balance hereof.
Borrowing and Repayment. Any Term Loan made by the Lender and all repayments of the principal thereof shall be recorded by the Lender; provided, however, that the failure of the Lender to make any such recordation shall not affect the obligations of the Authority hereunder or under the Agreement.
Security; Events of Default. This Term Loan Note constitutes a Term Loan Note as described in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Term Loan Note shall become, or may be declared to be, immediately due and payable, and shall bear interest at the Default Rate all as provided in the Agreement.
ALL OBLIGATIONS OF THE AUTHORITY HEREUNDER SHALL BE SECURED BY A LIEN ON AND PLEDGE OF AUTHORITY REVENUES. NONE OF THE OBLIGATIONS
OF THE AUTHORITY HEREUNDER SHALL BE A DEBT OF THE AUTHORITY WITHIN
THE MEANING OF ANY CONSTITUTIONAL, STATUTORY OR CHARTER LIMITATION
UPON THE CREATION OF GENERAL OBLIGATION INDEBTEDNESS OF THE
AUTHORITY, AND THE AUTHORITY SHALL NOT BE LIABLE FOR THE PAYMENT OF
ANY AMOUNTS HEREUNDER OUT OF ANY MONEY OF THE AUTHORITY OTHER THAN THE AUTHORITY REVENUES.
Presentment. Presentment for payment, demand, protest and notice of demand, notice of dishonor, notice of nonpayment and all other notices are hereby waived by the Authority, except Packet Pg. 750 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 751 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 4163- 0336- 3368.2
Term Loan Note Transactions
Date
Advance
Amount Interest Rate
Amount of
Principal
Repaid
Date to
Which
Interest Paid
Notation
Made By
Packet Pg. 752 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 4163- 0336- 3368.2
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto Please insert Social Security or
Taxpayer Identification Number
of Transferee
Please print or typewrite name and address, including zip code, of Transferee) the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints attorney to register the transfer of the within Note on the books kept for registration thereof, with full power of substitution in the premises.
Dated:
Signature Guaranteed:
NOTICE: Signature(s) must be guaranteed
by a member or participant of a signature
guarantee program
NOTICE: The signature above must
correspond with the name of the Owner as it
appears upon the front of this Note in every
particular, without alteration or enlargement
or change whatsoever.
Packet Pg. 753 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 754 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 755 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 756 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 757 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 758 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 759 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 760 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 761 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 762 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 763 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 764 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 765 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 766 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 767 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 768 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 769 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 770 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 771 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 772 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 773 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 774 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 775 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 776 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 777 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 778 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 779 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 780 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 781 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) RESOLUTION NO. 2020- 01
RESOLUTION ESTABLISHING A REGULAR MEETING CALENDAR
WHEREAS, the City of Redding ( the " City") and the Housing Authority of the City of Redding ( the " Housing Authority") have heretofore executed a joint exercise of powers agreement, dated December 6, 1988, and thereafter amended ( the " Joint Powers Agreement"), by and between the City and the Housing Authority, which Joint Powers Agreement creates and establishes the Redding Joint Powers Financing Authority ( the " Authority"); and WHEREAS, pursuant to Article 4 of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California, the Authority is authorized to issue bonds and notes for financing or refinancing public capital improvements whenever there are significant public benefits; and
WHEREAS, California Government Code Section 6592. 1 requires that bonds and notes issued by a joint exercise of powers authority approved at a regular meeting of the governing board of said authority; and
WHEREAS to facilitate the issuance of bonds and notes, this Board has determined to establish a regular meeting calendar;
NOW THEREFORE, the Governing Board of the Redding Joint Powers Financing Authority hereby finds, determines, declares and resolves, as follows:
Section 1. The foregoing recitals are true and correct and the Authority hereby so finds and determines.
Section 2. A regular meeting of this Governing Board shall occur on October 20, 2020, and November 3, 2020, at 6: 00 p.m., at Civic Center Council Chambers, 777 Cypress Avenue, Redding, California. In the event that the Chair of the Authority determines that there will be no business to transact at such meeting, such meeting of the Authority may be canceled. Regular meeting shall be deemed cancelled without further action or notice by the Chair if an agenda of the meeting is not posted 72 hours prior to the meeting, in accordance with the Ralph M. Brown Act.
Section 3. This Resolution shall take effect from and after its adoption. 4144- 6679- 3510. 3
Packet Pg. 782 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) I HEREBY CERTIFY that the foregoing resolution was duly passed and adopted by the Redding Joint Powers Financing Authority at a special meeting thereof held on the 6th day of October, 2020, by the following vote of the members thereof:
AYES: BOARD MEMBERS: Dacquisto, Resner, Schreder, Winter, and McElvain NOES: BOARD MEMBERS: None
ABSENT: BOARD MEMBERS: None
ABSTAIN: BOARD MEMBERS: None
ATTEST:
Mt VOW
PAMELA MIZE, Se etary
2-
4144- 6679- 3510. 3
ADAM MCELVAIN, Chairperson
APPROVED AS TO FORM:
BARRY E. De ALT, General Counsel
Packet Pg. 783 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement)
CERTIFICATE OF THE SECRETARY OF THE
REDDING JOINT POWERS FINANCING AUTHORITY
I, Pamela Mize, Secretary of the City of Redding Joint Powers Financing Authority ( the Authority"), hereby certify that the foregoing Resolution No. 2020- 01, is a full, true, and correct copy of a resolution duly adopted at a special meeting of the Authority duly held in Redding, California, on October 6, 2020, of which meeting all of the members of said Authority had due notice.
I further certify that I have carefully compared the foregoing copy with the original minutes of said meeting on file and of record in my office; that said copy is a full, true, and correct copy of the original resolution adopted at said meeting and entered into said minutes, and that said resolution has not been amended, modified, rescinded, or revoked in any manner since the date of its adoption, and the same is now in full force and effect.
An agenda of said meeting was posted at least 72 hours before the meeting at 777 Cypress Street, Redding, California 96001- 3396, a location freely accessible to members of the public, and a brief general description of said resolution appeared on said agenda.
Dated: October , 2020.
Secretary of the Re ng Joint
Powers Financing Authority
4144- 6679- 3510. 3
Packet Pg. 784 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 785 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) RESOLUTION NO. 2020- 02
RESOLUTION AUTHORIZING THE ISSUANCE OF NOTES; THE
EXECUTION AND DELIVERY OF A REVOLVING CREDIT
AGREEMENT AND AN INSTALLMENT SALE AGREEMENT; AND
AUTHORIZING THE EXECUTION OF DOCUMENTS AND THE
TAKING OF ALL NECESSARY ACTIONS RELATING THERETO
WHEREAS, the City of Redding ( the " City") and the Housing Authority of the City of Redding ( the " Housing Authority") have heretofore executed a joint exercise of powers agreement, dated December 6, 1988, and thereafter amended ( the " Joint Powers Agreement"), by and between the City and the Housing Authority, which Joint Powers Agreement creates and establishes the Redding Joint Powers Financing Authority ( the " Authority"); and WHEREAS, pursuant to Article 4 of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California, the Authority is authorized to issue notes for financing or refinancing public capital improvements whenever there are significant public benefits; and
WHEREAS, the Authority has determined that it is desirable and furthers the public purpose to assist in the financing of the design, acquisition, construction and improvement of the certain improvements to the electric system of the City ( the " Project"); and WHEREAS, the Authority desires to authorize the issuance of notes not to exceed at any time outstanding $ 25, 000,000 in aggregate principal amount ( the " Notes") evidencing repayment obligations under a Revolving Credit Agreement ( together with all exhibits attached thereto, the Revolving Credit Agreement") to be entered into among the City, the Authority and U.S. Bank National Association ( the " Lender") for the purpose of financing the Project; and WHEREAS, this Board of the Authority hereby determines that there are significant public benefits, including through demonstrable savings in the effective interest rates expected to be paid on the Notes to finance the Project, and that it furthers the public purpose to assist in such financing; and
WHEREAS, the Authority and City will enter into a Subordinate Installment Sale Agreement ( the " Installment Sale Agreement") pursuant to which the City will make installment payments sufficient to pay all obligations outstanding under the Revolving Credit Agreement, including the principal of and interest on the loans evidenced by the Notes; and WHEREAS, there have been presented to this meeting proposed forms of the Revolving Credit Agreement and the Installment Sale Agreement; and WHEREAS, pursuant to Section 5852. 1 of the California Government Code, the Authority has received certain representations and good faith estimates from PFM Financial Advisors LLC and has disclosed such good faith estimates as set forth in the staff report posted relating to this meeting;
4141- 7896- 0679. 4
Packet Pg. 786 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) NOW THEREFORE, the Governing Board of the Redding Joint Powers Financing Authority hereby finds, determines, declares and resolves, as follows:
Section 1. The foregoing recitals are true and correct and the Authority hereby so finds and determines.
Section 2. The issuance of the Notes, in an aggregate principal amount at no time to exceed $ 25, 000, 000, is hereby approved. The Chairperson, the Executive Director or Treasurer of the Authority ( or other officer designated by the Executive Director or the Treasurer) is hereby authorized and directed, for and in the name and on behalf ofthe Authority, to execute and deliver notes in substantially the forms set forth in the form of Revolving Credit Agreement on file with the Secretary of the Authority, with such changes therein as such officer may require or approve, such approval to be conclusively evidenced by the execution and delivery thereof.
Section 3. The proposed form of Revolving Credit Agreement by and among the Authority, the City and the Lender, on file with the Secretary of the Authority, is hereby approved. The Chairperson, the Executive Director or the Treasurer of the Authority ( or other officer designated by the Executive Director or Treasurer) is hereby authorized and directed, for and in the name and on behalf of the Authority, to execute and deliver a credit agreement in substantially said form, with such changes therein as such officer may require or approve, such approval to be conclusively evidenced by the execution and delivery thereof.
Section 4. The proposed form of Installment Sale Agreement, by and between the City and the Authority, on file with the Secretary of the Authority, is hereby approved. The Chairperson, the Executive Director or the Treasurer of the Authority ( or other officer designated by the Executive Director or the Treasurer) is hereby authorized and directed, for and in the name and on behalf of the Authority, to execute and deliver an installment sale agreement in substantially said form, with such changes therein as such officer may require or approve, such approval to be conclusively evidenced by the execution and delivery thereof.
Section 5. The Secretary is hereby authorized and directed to attest the signature of the Chairperson, Executive Director or other officer of the Authority as may be required in connection with the execution and delivery of the Notes, the Revolving Credit Agreement and the Installment Sale Agreement in accordance with this Resolution.
Section 6. The officers and board members of the Authority are hereby authorized and directed, jointly and severally, to do any and all things and to execute and deliver any and all documents and certificates which they deem necessary or advisable in order to consummate the issuance of the Notes and otherwise to effectuate the purposes of this Resolution and the transactions contemplated hereby.
Section 7. This Resolution shall take effect from and after its adoption. 2-
4141- 7896- 0679. 4
Packet Pg. 787 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) I HEREBY CERTIFY that the foregoing is a full, true and correct copy of a resolution duly passed and adopted by the Redding Joint Powers Financing Authority at a regular meeting thereof held on the 201h day of October, 2020 by the following vote of the members thereof:
AYES: BOARD MEMBERS: Resner, Schreder, Winter, and McElvain NOES: BOARD MEMBERS: Dacquisto
ABSENT: BOARD MEMBERS: None
ABSTAIN: BOARD MEMBERS: None
ATTEST:
LL
PAMELA MIZE, Sec etary
3-
4141- 7896- 0679. 4
ADAM McELVAIN, Chairperson
APPROVED AS TO FORM:
WALT, General Counsel
R. BALDWIN / 4,ja
Packet Pg. 788 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement)
CERTIFICATE OF THE SECRETARY OF THE
REDDING JOINT POWERS FINANCING AUTHORITY
I, Pamela Mize, Secretary of the City of Redding Joint Powers Financing Authority ( the Authority"), hereby certify that the foregoing Resolution No. 2020- 02, is a full, true, and correct copy of a resolution duly adopted at a regular meeting of the Authority duly held in Redding, California, on October 20, 2020, of which meeting all of the members of said Authority had due notice.
I further certify that I have carefully compared the foregoing copy with the original minutes of said meeting on file and of record in my office; that said copy is a full, true, and correct copy of the original resolution adopted at said meeting and entered into said minutes, and that said resolution has not been amended, modified, rescinded, or revoked in any manner since the date of its adoption, and the same is now in full force and effect.
An agenda of said meeting was posted at least 72 hours before the meeting at 777 Cypress Street, Redding, California 96001- 3396, a location freely accessible to members of the public, and a brief general description of said resolution appeared on said agenda.
Dated: October A6, 2020.
Secretary of the Reddin Joint
Powers Financing Authority
4141- 7896- 0679. 4
Packet Pg. 789 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 790 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 791 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 792 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 793 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 794 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 795 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 796 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 4125- 9545- 7064.3
CERTIFICATE OF THE
REDDING JOINT POWERS FINANCING AUTHORITY
The undersigned, Barry Tippin, Executive Director of the Redding Joint Powers Financing Authority (the “ Authority”), hereby certifies on and as of the date hereof as follows capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Revolving Credit Agreement, dated as of October 29, 2020 ( the “ Credit Agreement”), among the City of Redding, the Authority and U.S. Bank National Association):
1. The Authority is in compliance with all of the terms and provisions of the Related Documents to which it is a party (the “Authority Documents”).
2. Each representation and warranty on the part of the Authority contained in the Authority Documents is true and correct as though made on and as of the date hereof.
3. No Default or Event of Default has occurred and is continuing or would result from the execution or performance of the Authority Documents.
4. No petition by or against the Authority has at any time been filed under the United States Bankruptcy Code or under any similar Law;
5. The Authority has complied with all the agreements and satisfied all conditions on its part to be performed or satisfied with respect to the execution and delivery of the Authority Documents on the date hereof.
6. No action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, is pending or, to the best knowledge of the undersigned, threatened in any way against the Authority: ( i) affecting the existence of the Authority or the titles of its Governing Board members or its officers to their respective offices; ii) seeking to restrain or to enjoin the execution and delivery of any of the Authority Documents or the performance of the Authority’ s obligations thereunder; ( iii) in any way contesting or affecting the validity or enforceability of any of the Authority Documents; ( iv) in any way contesting the powers of the Authority with respect to the Authority Documents; or (v) in any way contesting or affecting any of the rights, powers, duties or obligations of the Authority with respect to the pledge of Revenues under the Credit Agreement; nor to the best knowledge of the undersigned is there any basis for any such action, suit, proceeding, inquiry or investigation.
Packet Pg. 797 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 798 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 799 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 800 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 4125- 9545- 7064.3
CERTIFICATE OF THE CITY OF REDDING
The undersigned, City Manager of the City of Redding ( the “ City”), hereby certifies on behalf of the City on and as of the date hereof as follows (capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Revolving Credit Agreement, dated as of October 29, 2020 (the “ Credit Agreement”), among the City, the Redding Joint Powers Financing Authority and U.S. Bank National Association):
1. The City is in compliance with all of the terms and provisions of the Related Documents to which it is a party (the “City Documents”).
2. Each representation and warranty on the part of the City contained in the City Documents is true and correct as though made on and as of the date hereof.
3. No Default or Event of Default has occurred and is continuing or would result from the execution or performance of the City Documents.
4. No petition by or against the City has at any time been filed under the United States Bankruptcy Code or under any similar Law;
5. The City has complied with all the agreements and satisfied all conditions on its part to be performed or satisfied with respect to the execution and delivery of the City Documents on the date hereof.
6. No action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, is pending or, to the best knowledge of the undersigned, threatened in any way against the City: (i) affecting the existence of the City or the titles of its City Council members or its officers to their respective offices; (ii) seeking to restrain or to enjoin the execution and delivery of any of the City Documents or the performance of the City’s obligations thereunder; ( iii) in any way contesting or affecting the validity or enforceability of any of the City Documents; (iv) in any way contesting the powers of the City with respect to the City Documents to which it is a party; or ( v) in any way contesting or affecting any of the rights, powers, duties or obligations of the City with respect to the pledge of Net Revenues under the Installment Sale Agreement; nor to the best knowledge of the undersigned is there any basis for any such action, suit, proceeding, inquiry or investigation.
Packet Pg. 801 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 802 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 803 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) 4155- 9936- 5160.3
LENDER LETTER
October 29, 2020
City of Redding
Redding, California
Redding Joint Powers Financing Authority
Redding, California
Redding Joint Powers Financing Authority
Taxable Note, Tax-Exempt Note and Term Loan Note
Ladies and Gentlemen:
U.S. Bank National Association (“ Lender") is receiving the above-referenced notes the "Notes") pursuant to the Revolving Credit Agreement, dated as of October 29, 2020 (together with all exhibits attached thereto, the " Credit Agreement"), among the City of Redding ( the City"), the Redding Joint Powers Financing Authority (the " Authority") and the Lender. All capitalized terms used herein, but not defined herein, shall have the respective meanings set forth in the Credit Agreement. The undersigned, an authorized representative of the Lender, hereby represents to you that:
1. The Lender has sufficient knowledge and experience in financial and business matters, including acquisition and ownership of municipal and other taxable or taxexempt obligations, to be able to evaluate the risks and merits represented by the commitment by the Bank to provide loans under the Credit Agreement and to acquire the Notes to evidence the Authority’s obligations to repay such loans.
2. The Lender has authority to acquire the Notes and to execute this letter and any other instruments and documents required to be executed by the Lender in connection with the Notes.
3. The undersigned is a duly appointed, qualified and acting representative of the Lender and is authorized to cause the Lender to make the certifications, representations and warranties contained herein by execution of this letter on behalf of the Lender.
4. The Lender is a national banking association organized under the laws of the United States of America and is able to bear the economic risks related to the extension of credit pursuant to the Credit Agreement.
5. The Lender understands that no official statement, prospectus, offering circular, or other comprehensive offering statement is being provided with respect to the Notes.
Packet Pg. 804 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 805 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 806 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 807 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 808 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 809 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 810 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 811 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement) Packet Pg. 812 Attachment: Contract No. 8717 (9.5(a)--Amend and Extend REU Revolving Credit Agreement)
CITY OF REDDING
REPORT TO THE CITY COUNCIL
Recommendation
Informational item only.
MEETING DATE: April 18, 2023
ITEM NO. 9.6(a)
FROM:
***APPROVED BY***
[email protected] [email protected]
SUBJECT: 9.6(a)--Oral presentation providing an update on the Panorama Park Project and regarding demand for gymnasium facilities in the City of Redding.
Kim Niemer, Community
Services Director
Packet Pg. 813