4867-3305-2743.3
NP DRAFT 02/02/2023
SIXTH AMENDMENT TO
REIMBURSEMENT AGREEMENT
This SIXTH AMENDMENT TO REIMBURSEMENT AGREEMENT
(this “Amendment”), is made and entered into as of __________, 2023 by and among CITY OF RIVERSIDE, a municipal corporation and chartered city of the State of California (the “ City”), RIVERSIDE PUBLIC FINANCING AUTHORITY, a joint exercise of powers authority organized under the laws of the State of California (the “Authority”), and BANK OF AMERICA, N.A., a national banking association (the “Bank”).
W I T N E S S E T H
WHEREAS, the City, the Authority and the Bank have previously entered into a Reimbursement Agreement, dated as of April 1, 2008, a First Amendment to Reimbursement Agreement, dated as of March 24, 2010, a Second Amendment to Reimbursement Agreement, dated as of March 7, 2012, a Third Amendment to Reimbursement Agreement, dated as of March 5, 2015, a Fourth Amendment to Reimbursement Agreement, dated as of March 6, 2018, and a Fifth Amendment to Reimbursement Agreement, dated as February 25, 2021 (collectively, the “Prior Agreement”); and
WHEREAS, the City and the Authority each desires to extend the Stated Expiration Date (as defined in the Prior Agreement) of the Letter of Credit (as defined in the Prior Agreement) and to amend the Prior Agreement as provided herein;
NOW, THEREFORE, in consideration of the foregoing, the premises and mutual covenants contained herein and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms used herein shall have the meanings given thereto in the Prior Agreement.
2. E ffectiveness of this Amendment. This Amendment shall become effective as provided herein at the time (the “ Amendment Effective Time” ) on the first date (the “Amendment Effective Date”) on which each of the following conditions shall be satisfied or waived by the Bank:
(a) D elivery of Amendment. The Bank shall have received a copy of this Amendment duly executed and delivered by the City and the Authority. (b) I ncumbency . Receipt by the Bank, on or prior to the Amendment Effective Date, of a certificate of the City certifying the names and true signatures of the officials of the City authorized to sign this Amendment and the other documents to be delivered by the City hereunder. (c) R epresentations and Covenants of the City; No Defaults. The following statements shall be true and correct on and as of the Amendment Effective Date, and the Bank shall have received a certificate signed by an Authorized City Representative, dated the Amendment Effective Date, stating that:
4867-3305-2743.3
- 2 -
(i) The representations of the City contained in A rticle V of the Prior Agreement (other than Sections 5.5 and 5.6) are true and correct in all material respects on and as of the Amendment Effective Date as though made on and as of such date. (ii) The City has performed or complied with all of its obligations, agreements and covenants to be performed or complied with by it pursuant to the Prior Agreement on or prior to the Amendment Effective Date.
(iii) After giving effect to the execution and delivery of this Amendment, there exists no Default or Event of Default. (d) Representations and Covenants of the Authority; No Defaults. The following statements shall be true and correct on and as of the Amendment Effective Date, and the Bank shall have received a certificate signed by an authorized office of the Aut hority, dated the Amendment Effective Date, stating that:
(i) The representations of the Authority contained in Article VI of the Prior Agreement are true and correct in all material respects on and as of the Amendment Effective Date as though made on and as of such date.
(ii) The Authority has performed or complied with all of its obligations, agreements and covenants to be performed or complied with by it pursuant to the Prior Agreement on or prior to the Amendment Effective Date.
(iii) After giving effect to the execution and delivery of this Amendment by the Authority, there exists no Default or Event of Default. (e) Fees, Costs and Expenses. The Bank and its counsel shall have received payment of all fees, costs and expenses due under the Prior Agreement and the Fee Letter that are to be paid on or prior to the Amendment Effective Date. (f) N
o Material Adverse Change. As of the Amendment Eff ective Date, the Bank, in its sole determination, shall be satisfied that (i) no material adverse change in the financial condition, business, assets, liabilities or prospects of the City since June 30, 2022 has occurred, and (ii) no law, rule or regulation shall have been enacted, amended, suspended or repealed that would result in a material adverse change of the type described in clause (i).
3. A
mendments . At the Amendment Effective Time, the Prior Agreement is hereby amended as follows:
(a) Section 1.1 of the Prior Agreement is hereby amended by the addition of the following definitions which are to be situated therein by alphabetical order:
“Sixth Amendment” means the Sixth Amendment to Reimbursement Agreement, dated __________, 2023, among the City, the Authority and the Bank. “Sixth Amendment Effective Date” means __________, 2023. 4867-3305-2743.3
- 3 -
(b) Section 1.1 of the Prior Agreement is hereby amended by deleting the defined terms “Fee Letter” and Stated Expiration Date” therein and replacing them with the following:
“Fee Letter” means that certain Fee Letter dated __________, 2023, between the Bank and the City, and any amendments or modifications thereto. “Stated Expiration Date” means __________, 2026.
4. Amendment of the Letter of Credit . At the Amendment Effective Time, the Bank shall execute and deliver to the Trustee a certificate in the form of Annex E to the Letter of Credit extending the Stated Expiration Date to __________, 2026.
5. R epresentations and Warranties. The City makes, as o f the Amendment Effective Date, each of the representations and warranties set forth in Article V of the Agreement, after giving effect to this Amendment, and such representations and warranties are, by this reference, incorporated herein as if set forth herein in their entirety, provided that references to “Agreement” shall, for purposes of this paragraph, be deemed to include this Amendment. The Authority makes, as of the Amendment Effective Date, each of the representations and warranties set forth in Article VI of the Agreement, after giving effect to this Amendment, and such representations and warranties are, by this reference, incorporated herein as if set forth herein in their entirety, provided that references to “ Agreement” shall, for purposes of this paragraph, be deemed to include this Amendment.
6. M
iscellaneous .
(a) The parties hereto acknowledge and confirm that, from and after the date hereof, any reference in the Prior Agreement or in the other Related Documents to the “Agreement” shall mean and refer to the Prior Agreement as amended by this Amendment. (b) Except as expressly modified by this Amendment, the Prior Agreement shall continue to be and remain in full force and effect in accordance with its terms. (c) This Amendment may be executed in any number of counterparts, each of which shall constitute an original, but all of which when taken together shall constitute but one instrument.
(d) PURSUANT TO SECTION 5 -1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW (OR ANY SUCCESSOR STATUTE THERETO), THIS AMENDMENT
SHALL BE DEEMED TO BE A CONTRACT UNDER, AND SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE FEDERAL LAW; PROVIDED, HOWEVER, THE
OBLIGATIONS OF THE CITY HEREUNDER 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.
4867-3305-2743.3
- 4 -
(e) This Amendment may be executed by facsimile signature and each such signature shall be treated in all respects as having the same effect as an original signature. (f) The parties agree that the electronic signature of a party to this Amendment shall be as valid as an original signature of such party and shall be effective to bind such party to this Amendment. The parties agree that any electronically signed document (including this Amendment) shall be deemed (i) to be “written” or “in writing,” (ii) to have been signed and (iii) to constitute a record established and maintained in the ordinary course of business and an original written record when printed from electronic files. Su ch 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. Neither 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. (g) The City agrees to pay t he reasonable fees and expenses of counsel to the Bank incurred in connection with this Amendment promptly following presentation of an invoice therefor together with previously unpaid invoices.
[Remainder of page intentionally left blank; signature page follow.]
- Signature Page 1 of 3 -
Sixth Amendment to Reimbursement Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first above written.
CITY OF RIVERSIDE
By:
Name:
Title:
ATTEST:
By:
Name:
Title: City Clerk
[SEAL]
Approved as to form by Bond Counsel:
By:
Name: Br ian Forbath
Title: President of the Board of Directors
- Signature Page 2 of 3 -
Sixth Amendment to Reimbursement Agreement
RIVERSIDE PUBLIC FINANCING
AUTHORITY
By:
Name:
Title:
ATTEST:
By:
Name:
Title: Secretary
[SEAL]
- Signature Page 3 of 3 -
Sixth Amendment to Reimbursement Agreement
BANK OF AMERICA, N.A.
By:
Name:
Title: