OH&S
DRAFT
09/03/26
4126-5076-5675.4
SUBORDINATE INSTALLMENT PURCHASE CONTRACT
between the
CITY OF SAN JOSE
and the
CITY OF SAN JOSE FINANCING AUTHORITY
RELATING TO CERTAIN
WASTEWATER SYSTEM PROJECTS
Dated as of October 1, 2026
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions ....................................................................................................2
ARTICLE II
ACQUISITION, CONSTRUCTION, SALE AND PURCHASE OF THE NEW PROJECTS; REFINANCING OF PURCHASE PRICE OF PRIOR PROJECTS SECTION 2.01. Acquisition, Construction, Sale and Purchase of the New Projects; Refinancing of Purchase Price of Prior Projects .............................................5 SECTION 2.02. Title to the New Projects ...............................................................................6
ARTICLE III
INSTALLMENT PAYMENTS
SECTION 3.01. Purchase Price ...............................................................................................6 SECTION 3.02. Payment of the Installment Payments ............................................................6 SECTION 3.03. Designation of Installment Payments as Subordinate Obligations ..................7
ARTICLE IV
COVENANTS OF THE CITY
SECTION 4.01. Compliance with Installment Purchase Contract and Master Resolution ........7 SECTION 4.02. Tax Covenants ..............................................................................................7 SECTION 4.03. Protection of Security and Rights of Authority ..............................................7 SECTION 4.04. Further Assurances ........................................................................................8
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES OF THE AUTHORITY
SECTION 5.01. Events of Default ..........................................................................................8 SECTION 5.02. Other Remedies of the Authority ...................................................................9 SECTION 5.03. Non-Waiver ..................................................................................................9 SECTION 5.04. Remedies Not Exclusive ................................................................................9 SECTION 5.05. Application of Moneys Collected ..................................................................9
ARTICLE VI
DISCHARGE OF OBLIGATIONS
SECTION 6.01. Discharge of Obligations ............................................................................. 10 DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
TABLE OF CONTENTS
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ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Liability of City Limited to Net System Revenues ....................................... 10 SECTION 7.02. Benefits of Installment Purchase Contract Limited to Parties and Beneficiary .................................................................................................. 10 SECTION 7.03. Assignment ................................................................................................. 11 SECTION 7.04. Successor is Deemed Included in all References to Predecessor .................. 11 SECTION 7.05. Waiver of Personal Liability ........................................................................ 11 SECTION 7.06. Article and Section Headings, Gender and References ................................. 11 SECTION 7.07. Partial Invalidity .......................................................................................... 11 SECTION 7.08. Net Contract ................................................................................................ 11 SECTION 7.09. California Law ............................................................................................ 12 SECTION 7.10. Notices ........................................................................................................ 12 SECTION 7.11. Effective Date ............................................................................................. 12 SECTION 7.12. Amendments ............................................................................................... 12 SECTION 7.13. Execution in Counterparts ........................................................................... 13
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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SUBORDINATE INSTALLMENT PURCHASE CONTRACT
This Subordinate Installment Purchase Contract, dated as of October 1, 2026 (this “Installment Purchase Contract”) , between the City of San José , a municipal corporation duly organized and existing under and by virtue of its charter and the Constitution of the State of California (the “City”), and the City of San Jos é Financing Authority, a joint exercise of powers entity duly organized and existing under and by virtue of the laws of the State of California (the “Authority”);
W I T N E S S E T H:
WHEREAS, the City is empowered by its charter to own, operate and maintain systems, plants, buildings, works and other facilities for the collection, treatment and disposal of sewage and wastewater, including sewage treatment and disposal plants and works and facilities in connection therewith; and
WHEREAS, pursuant to such authority, the City owns and operates a Sanitary Sewer Collection System (as defined herein); and
WHEREAS, pursuant to such authority, on May 6, 1959, the City and the City of Santa Clara entered into that certain Agreement Between San José and Santa Clara Respecting Sewage Treatment Plant regarding the ownership, operation, maintenance and use of the Treatment Plant (as defined herein); and
WHEREAS, pursuant to such authority, the City has determined to finance and refinance the acquisition, construction and installation from time to time of certain improvements, additions, and betterments to, and extensions and rehabilitations of, the Sanitary Sewer Collection System and the Treatment Plant (collectively, the “Projects”); and WHEREAS, the Authority is empowered by its Joint Exercise of Powers Agreement, dated December 8, 1992, by and between the City and the former Redevelopment Agency of the City of San José (the “Former Agency”), to assist the City in its financing needs by financing and refinancing the Projects and refunding any bonds, notes or other evidences of indebtedness of the Authority or the City issued or incurred for such purpose (the “Refunded Obligations”); and
WHEREAS, the Former Agency, as of February 1, 2012, has been dissolved and the City has become the successor agency of the Former Agency pursuant to Part 1.85 of Division 24 of the California Health and Safety Code and pursuant to California Health and Safety Code Section 34178(b)(3), the joint exercise of powers agreement establishing the Authority remains in effect; and
WHEREAS, the Authority and U.S. Bank Trust Company, National Association have entered into an Issuing and Paying Agent Agreement (as defined herein) pursuant to which the Authority will issue its Subordinate Wastewater Revenue Commercial Paper Notes (the “Notes”) from time to time in one or more series to finance and refinance the Projects and/or refund Refunded Obligations; and
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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WHEREAS, the Authority has agreed to sell the Projects to the City and/or refinance the purchase price of Projects previously financed and/or refinanced with Refunded Obligations, and the City has agreed to purchase the Projects from the Authority and pay the refinanced purchase price of Projects previously financed and/or refinanced with Refunded Obligations, as provided herein; and
WHEREAS, the City has agreed to make installment payments to the Authority hereunder (the “Installment Payments”) to pay the purchase price of the Projects and refinance the purchase price of Projects previously financed and/or refinanced with Refunded Obligations , together with interest thereon, and pay other amounts payable by the Authority under the Issuing and Paying Agent Agreement, as provided herein; and
WHEREAS, the City has agreed to designate the Installment Payments as Subordinate Obligations under the Master Resolution (as defined herein) and, as such, the Installment Payments shall be payable solely from, and secured by a pledge of and lien on , the Net System Revenues (as defined herein) as Subordinate Obligations under and as provided in the Master Resolution; and
WHEREAS, the City and the Authority hereby certify that 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 execut ion and entering into of this Installment Purchase Contract 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 Purchase Contract;
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:
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 City of San José Financing Authority, a joint exercise of powers entity duly organized and existing under and by virtue of the laws of the Sta te of California.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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Bank
“Bank” shall have the meaning ascribed thereto in the Issuing and Paying Agent Agreement.
City
“City” means the City of San Jos é, a municipal corporation, duly organized and existing under and by virtue of its charter and the Constitution 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.
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 New Projects and/or the refinancing of the purchase price of Prior Projects as set forth in Section 3.02 hereof.
Installment Purchase Contract
“Installment Purchase Contract” means this Subordinate Installment Purchase Contract, dated as of October 1, 2026, between the City and the Authority, as originally executed and as it may from time to time be amended.
Issuing and Paying Agent
“Issuing and Paying Agent” means U.S. Bank Trust Company, National Association, a national banking association duly organized and existing under the laws of the United States of America, or any successor Issuing and Paying Agent which may at any time be substituted in place of the original or any successor Issuing and Paying Agent pursuant to the Issuing and Paying Agent Agreement.
Issuing and Paying Agent Agreement
“Issuing and Paying Agent Agreement” means the Issuing and Paying Agent Agreement, dated as of October 1, 2026, between the Authority and the Issuing and Paying Agent, as originally executed and entered into and as from time to time amended and supplemented in accordance with its terms.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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Letter of Credit
“Letter of Credit” shall have the meaning ascribed thereto in the Issuing and Paying Agent Agreement.
Master Resolution
“Master Resolution” means Resolution No. 80770, a Resolution of the City Council of the City of San José Amending and Restating Resolution No. 78382 Providing for the Allocation of Wastewater System Revenues, the Pledge of Wastewater Net System Revenues and Establishing Covenants to Secure the Payment of Obligations Payable from Wastewater Net System Revenues, adopted on November 15, 2022, as amended from time to time in accordance with its terms.
Net System Revenues
“Net System Revenues” shall have the meaning ascribed thereto in the Master Resolution.
New Projects
“New Projects” means the improvements, additions, and betterments to, and extensions and rehabilitations of, the Wastewater System originally financed with proceeds of the Notes.
Note Repayment Fund
“Note Repayment Fund” shall have the meaning ascribed thereto in the Issuing and Paying Agent Agreement.
Notes
“Notes” shall have the meaning ascribed thereto in the Issuing and Paying Agent Agreement.
Outstanding
“Outstanding” when used with respect to Notes, shall have the meaning ascribed thereto in the Issuing and Paying Agent Agreement.
Owner
“Owner” when used with respect to Notes, shall have the meaning ascribed thereto in the Issuing and Paying Agent Agreement.
Payment Obligations
“Payment Obligations” shall have the meaning ascribed thereto in the Issuing and Paying Agent Agreement.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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Prior Projects
“Prior Projects” means the improvements, additions, and betterments to, and extensions and rehabilitations of, the Wastewater System originally financed or refinanced with the proceeds of any Refunded Obligations (as defined in the recitals hereto) that are refunded with proceeds the Notes.
Projects
“Projects” means the New Projects and the Prior Projects.
Sanitary Sewer Collection System
“Sanitary Sewer Collection System” shall have the meaning ascribed thereto in the Master Resolution.
Tax Certificate
“Tax Certificate” shall have the meaning ascribed thereto in the Issuing and Paying Agent Agreement.
Tax-Exempt Notes
“Tax-Exempt Notes” shall have the meaning ascribed thereto in the Issuing and Paying Agent Agreement.
Treatment Plant
“Treatment Plant” shall have the meaning ascribed thereto in the Master Resolution.
Wastewater System
“Wastewater System” shall have the meaning ascribed thereto in the Master Resolution.
ARTICLE II
ACQUISITION, CONSTRUCTION, SALE AND PURCHASE OF THE NEW PROJECTS;
REFINANCING OF PURCHASE PRICE OF PRIOR PROJECTS
SECTION 2.01. Acquisition, Construction, Sale and Purchase of the New Projects; Refinancing of Purchase Price of Prior Projects . The Authority agrees to acquire and construct the New Projects and to sell the New Projects to the City, and the City agrees to purchase the New Projects 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
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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Authority, to provide for the complete acquisition and construction of the New Projects, and the City hereby agrees that as such agent it will cause the acquisition and construction of the New Projects to be diligently completed. In addition, the Authority agrees to refinance any remaining amount of the purchase price due by the City for the acquisition and construction of the Prior Projects.
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 New Projects. Upon the acquisition or construction of each of the New Projects 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.
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 New Projects and/or the refinancing of the purchase price of the Prior Projects is equal to the aggregate amount of the princi pal installments of the Installment Payments, payable in installments of principal together with interest thereon and any other amounts payable by the Authority under the Issuing and Paying Agent Agreement , all as provided in Section 3.02 hereof.
SECTION 3.02. Payment of the Installment Payments . The City shall pay the Authority the purchase price of the Projects 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 Notes becomes due and payable under the Notes and the Issuing and Paying Agent Agreement ; (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 Notes becomes due and payable under the Notes and the Issuing and Paying Agent 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, including any Payment Obligations, become due and payable by the Authority under the Issuing and Paying Agent Agreement . The City shall receive credit against its payments required to be made under this Section 3.02, in an
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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amount equal to moneys deposited in the Note Repayment Fund established under the Issuing and Paying Agent Agreement and available to pay principal of or interest on Notes at maturity or to reimburse the Banks for drawings under the Letters of Credit for such purpose or to pay Payment Obligations in accordance with the Issuing and Paying Agent Agreement.
SECTION 3.03. Designation of Installment Payments as Subordinate Obligations. The City hereby designates this Installmen t Purchase Contract as, and this Installment Purchase Contract constitutes, a Contract (as defined in the Master Resolution). The City hereby further designates the Installment Payments as, and the Installment Payments shall constitute, Subordinate Obligations (as defined in the Master Resolution) under the Master Resolution and, as such, this Installment Purchase Contract is a Subordinate Obligation Contract (as defined in the Master Resolution). The City and the Authority hereby agree that this Installment Purchase Contract and the Installment Payments shall be secured as, and shall have all rights and benefits afforded to, Subordinate Obligation Contracts and Subordinate Obligations, respectively, under and as provided in and subject to terms of t he Master Resolution.
ARTICLE IV
COVENANTS OF THE CITY
SECTION 4.01. Compliance with Installment Purchase Contract and Master Resolution. 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 and in the Master Resolution required to be observed and performed by it, and wil l not terminate this Installment Purchase Contract or the Master Resolution for any cause whatsoever, inclu ding, without limiting the generality of the foregoing, any acts or circumstances that may constitute failure of consideration, destruction of or damage to the Wastewater System or any part thereof, 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 System Revenues as provided in the Master Resolution.
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 take no action that would result in such interest being so included. Without limiting the foregoing, the City and the Authority will at all times comply with the requirements of each Tax Certificate. This covenant shall survive any defeasance or discharge of the Installment Payments pursuant to Article VI.
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.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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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. The following events shall be Events of Default under this Installment Purchase Contract:
(a) default in the due and punctual payment of any Installment Payment when the same shall become due and payable;
(b) default 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 120 days after the City shall have been given notice in writing of such default by the Authority; except that, if such default can be remedied but not within such 120 day period and if the City has taken all action reasonably possible to remedy such default within such 120 day period, such failure shall not become an Event of Default for so long as the City diligently proceeds to remedy the same;
(c) 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) an Event of Default (as defined in the Issuing and Paying Agent Agreement) has occurred and is continuing under the Issuing and Paying Agent Agreement.
Upon the occurrence of an Event of Default, if the Payment Obligations owning to a Bank have been declared to be immediately due and payable pursuant to Section 6.02(b) of the Issuing and Paying Agent Agreement, the Authority shall , by notice in writing to the City, declare the principal amount of the unpaid Installment Payments relating to such Payment Obligations 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 such declaration and its consequences shall be rescinded and annulled and such default shall be waived if the declaration that such Payment Obligations become immediately due and payable is rescinded and annulled and such default waived pursuant to Section 6.02(b) of the Issuing and Paying Agent Agreement; but 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.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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SECTION 5.02. Other Remedies of the Authority. The Authority shall also 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 the City or any such councilmember, officer or employee contained herein;
(b) by suit in equity to enjoin any acts or things which are unlawful or violate the rights of the Authority; or
(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 Issuing and Paying Agent Agreement, and to the extent applied to the payment of amounts due on the Notes or other amounts payable by the Authority under the Issuing and Paying Age nt Agreement shall be credited against the Installment Payments.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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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 owing under the Notes and the Issuing and Paying Agent Agreement , 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. (b) All or any portion of any unpaid principal installment of the Installment Payments, together with the accrued interest thereon, shall be deemed to have been paid within the meaning of and with the effect expressed in subsection (a) of this section if the corresponding principal amount of the Notes is paid or deemed paid under Article IX of the Issuing and Paying Agent Agreement.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Liability of City Limited to Net System 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 System 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 System Revenues as provided herein and the Master Resolution, 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, and does not constitute an obligation for which the City is obligated to levy or pledge any form of taxation or for which the City has levied or pledged any form of taxation.
SECTION 7.02. Benefits of Installment Purchase Contract 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 benef it of the City, the Authority and their assigns. The parties agree that each Bank (as defined in the Issuing and Paying Agent Agreement) shall be a third party beneficiary hereunder.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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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 the Is suing and Paying Agent under the Issuing and Paying Agent 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 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 o f 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 Purchase Contract 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 Purchase Contract 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.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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SECTION 7.09. California Law . This Installment Purchase Contract 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 San José – Finance Department
Attention: Debt Management
200 East Santa Clara Street, 13th Floor
San José, CA 95113
Phone: (408) 535-7010
Email: [email protected]
If to the Authority:
City of San José Financing Authority
Attention: Debt Management
200 East Santa Clara Street, 13
th Floor
San José, CA 95113
Phone: (408) 535-7010
Email: [email protected]
SECTION 7.11. Effective Date. This Installment Purchase Contract shall become effective upon its execution and delivery.
SECTION 7.12. Amendments. This Installment Purchase Contract and the rights and obligations of the Authority and of the City may be amended at any time by mutual agreement of the Authority and the City, which amendment shall become binding when the written consents of each Bank shall have been filed with the Issuing and Paying Agent. No such amendment shall (1) extend the time for payment of or reduce the amount of the interest on or the principal of any Installment Payment without the express written consent of the Owners of the affected Notes, or (2) amend the aforesaid required consents to effect any such amendment without the written consent of the Owners of all of the Notes then Outstanding and the Banks.
This Installment Purchase Contract and the rights and obligations of the Authority and of the City hereunder may also be amended at any time by mutual agreement of the Authority and the City, which amendment shall become binding upon execution without the prior written consent of any Owners or any Bank, but only to the extent permitted by law and only for any one or more of the following purposes:
(a) to add to the agreements and covenants required herein to be performed by the City other agreements and covenants thereafter to be performed by the City, or to surrender any right or power reserved herein to or conferred herein on the City;
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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(b) to make such provisions for the purpose of curing any ambiguity, inconsistency or omission or of correcting or curing any defective provision contained herein; (c) to make modifications or adjustments necessary, appropriate or desirable to accommodate any Alternate Letter of Credit (as defined in the Issuing and Paying Agent Agreement), provided that no such provision shall materially and adversely affect the interest s of the Owners of the Notes;
(d) to make such additions, deletions or modifications as may be necessary or appropriate to insure compliance with Section 148(f) of the Internal Revenue Code of 1986, as amended, relating to the required rebate of excess investment earnings to the United States of America, or otherwise as may be necessary to insure the exclusion from gross income for purposes of federal income taxation of the interest on the Tax-Exempt Notes; (e) to make such additions, deletions or modifications as may be necessary or appropriate to maintain any then current ratings on the Notes; (f) to add to the rights of the Authority or the Issuing and Paying Agent; or (g) to make any other addition, deletions or modifications which shall not materially adversely affect the interests of the Owners or the Banks.
SECTION 7.13. Execution in Counterparts . This Installment Purchase Contract 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.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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IN WITNESS WHEREOF, the par ties hereto have executed this Installment Purchase Contract by their officers thereunto duly authorized as of the day and year first written above.
Approved as to form:
SUSANA ALCALA WOOD, City Attorney
By:
Chief Deputy City Attorney
CITY OF SAN JOSE
By: ________________________________
Maria Öberg
Director of Finance
CITY OF SAN JOSE FINANCING AUTHORITY
By: ________________________________
Maria Öberg
Treasurer
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
-i-
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DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.