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HomeMy WebLinkAboutAgenda Item - 2025-08-05 - Number 08.1 - WIFIA Loan Agreement 8.1 O F �s� COUNCIL REPORT —� OREGO� Subject: Resolution 25-37, Authorizing the execution and delivery of the WIFIA Loan with the Environmental Protection Agency (EPA). Meeting Date: August 5, 2025 Staff Member: Stefan Broadus, PE Director of Special Projects Report Date: July 25, 2025 Department: Public Works - Engineering Action Required Advisory Board/Commission Recommendation ❑ Motion ❑ Approval ❑ Public Hearing ❑ Denial ❑ Ordinance ❑ None Forwarded ❑X Resolution ❑ Not Applicable ❑ Information Only Comments: ❑ Council Direction ❑ Consent Agenda Staff Recommendation: Adopt Resolution 25-37 as presented. Recommended Language for Motion: Move to adopt Resolution 25-37 authorizing the execution and delivery of the WIFIA loan with the EPA for the Wastewater Treatment Facility project in an amount not to exceed $123,480,000. Project/ Issue Relates To: Collaborate with the City of Portland to make a financially and environmentally responsible long-term investment in a wastewater treatment facility. Issue before Council (Highlight Policy Question): ❑X Council Goals/Priorities ❑Adopted Master Plan(s) ❑Not Applicable BACKGROUND The existing Tryon Creek Wastewater Treatment Plant (TCWTP) was built in 1964 and is owned and operated by the Portland Bureau of Environmental Services (BES). The plant is reaching the end of its useful life cycle and needs to be upgraded or replaced. The City of Lake Oswego and City of Portland mutually agreed that it would be more appropriate and financially feasible for the City of Lake Oswego to build and operate a replacement plant, reversing the roles of responsibility that have been in place since the 1960's. One of the first and foremost goals for this project has been to minimize the financial impact to ratepayers. One of the key options available for financing is through low-cost loans from the Respect. Excellence. Trust. Service. 503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY Page 2 Federal government, specifically the Environmental Protection Agency (EPA). This is a common source of funds for municipal agencies undertaking similar projects. On October 5, 2021, staff provided a project update to Council which included a briefing that the Water Infrastructure Finance and Innovation Act (WIFIA) Letter of Interest (LOI) package had been submitted. On December 6, 2021, the EPA selected Lake Oswego's Wastewater Treatment Facility (WWTF) project to apply for a low-cost, long-term loan under the WIFIA program. On February 15, 2022, the City Council approved submitting the formal application for the loan. The WIFIA loan was to be executed by EPCOR Foothills Water Partners (EWFP) as a means to reduce the monthly payment installments(and therefore overall cost)from the City in the P3 agreement. Essentially, the public financing would reduce the amount of private equity required which was at a higher rate. At a City Council Study Session on September 27, 2022, staff described how the City would retain the rights associated with the acceptance into the WIFIA program in the event of an off-ramp (separation) and new procurement. At the City Council meeting on April 4, 2023, the staff report described transferring the WIFIA loan from EWFP to the City as a part of reducing overall project costs and in efforts to meet the "Affordability Threshold". The City formally decided not to continue the project with EWFP on January 30, 2024. DISCUSSION While considering the separation from EWFP, the City evaluated the impact of removing the private equity and replacing it with public funding. The City's available fund balance is not nearly sufficient to pay for the capital cost of the new plant. However, using a combination of available funding sources (utility revenue, City of Portland cost share payments, and System Development Charges) as well as public financing creates a funding plan that minimizes utility rate increases. The public financing mechanism would include Lake Oswego Municipal Bonds as well as the WIFIA Loan. Based on that analysis, City staff submitted a revise application for the WIFIA loan on December 31, 2024 with the City named as the loan-holder. Over the past several months, the project team has coordinated with WIFIA staff to develop the financial details of the loan. On July 15th, 2025 project staff presented this Resolution to City Council who directed staff to continue the item on the next council meeting, allowing for more detail to be presented for consideration. In terms of next steps,the project team will continue to collaborate with Jacobs Engineering over the next several months as they prepare their proposal for the Design-Build-Operate-Maintain (DBOM) Project Agreement. The City will not begin to draw from the WIFIA loan until a few months after the Project Agreement is executed which is anticipated in early 2026.This approach defers fees and interest accrual on the WIFIA loan for as long as possible and until the project actually requires the funds. It's important to note that the City does not become committed to the WIFIA loan debt upon execution of the loan agreement, but rather when the funds are actually drawn. This is an additional benefit of the WIFIA program and gives the City great financial flexibility. Respect. Excellence. Trust. Service. 503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY Page 3 FISCAL IMPACT The maximum WIFIA loan amount is based on 49% of allowable expenses which include construction, land acquisition, and professional services, among a few other minor categories. Based on current cost estimates as well as eligible expenses to date,the WIFIA loan amount was calculated at $123,480,000. This project has targeted a maximum annual utility rate increase of 3.9% (the "affordability threshold").To put this in context,the median monthly sewer bill is$89.721. A 3.9%rate increase raises the monthly bill to $93.22, which is only a $3.50 monthly difference. Staff also explored the scenario of financing this project using only the other identified sources listed previously but without the WIFIA loan. In this scenario, utility rates would need to rise faster to accumulate needed capital to pay for construction. Without the WIFIA loan, it is projected that an initial utility rate increase of approximately 35% would be needed to start making the debt service payments. That increase would raise the median sewer utility bill to $121.12 which is $27.90 higher than the 3.9% increase. It is worth noting that the projection without the WIFIA loan does pay less total interest on the financing over the life of the project.The large initial rate increase enables debt service payments that reduce the amount of interest paid. However, an emphasis has been made on the "affordability threshold" and thus why securing the WIFIA loan is still recommended by the project team. RECOMMENDATIONS Approve Resolution 25-37 authorizing the execution and delivery of the WIFIA loan with the EPA for the Wastewater Treatment Facility project in an amount not to exceed $123,480,000. ATTACHMENTS 1. Resolution 25-37 2. WIFIA Loan Terms Summary 3. WIFIA Loan Agreement Draft 1 City of Lake Oswego 2025 Master Fees&Charges Respect. Excellence. Trust. Service. 503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY ATTACHMENT 1 RESOLUTION NO. 25-37 A RESOLUTION OF THE CITY OF LAKE OSWEGO, OREGON, AUTHORIZING THE EXECUTION AND DELIVERY OF A LOAN AGREEMENT IN AN AMOUNT NOT TO EXCEED $123,480,000 (EXCLUDING CAPITALIZED INTEREST) WITH THE ENVIRONMENTAL PROTECTION AGENCY AND RELATED DOCUMENTS TO FUND A PORTION OF A WASTEWATER TREATMENT FACILITY PROJECT FOR THE CITY AND FOR PAYMENTS OF COSTS OF ISSUANCE; PLEDGING THE CITY'S FULL FAITH AND CREDIT TO THE PAYMENT OF SUCH LOAN AGREEMENT; DESIGNATING AUTHORIZED REPRESENTATIVES AND DELEGATING AUTHORITY; AND RELATED MATTERS. WHEREAS,the City Council (the "City Council") of the City of Lake Oswego, Oregon (the "City"), a municipal corporation of the State of Oregon,finds that it is financially feasible and in the City's best interest to finance (1) a portion of the costs of the design, development, acquisition (including acquisition of land), construction, equipping and improvement of a Wastewater Treatment Facility of the City(the "Facility") and related facilities, and (2)the related financing and issuance costs (collectively, the "Project"); and WHEREAS, the City is authorized pursuant to Oregon Revised Statutes ("ORS") Section 271.390 (i) to enter into financing agreements, lease-purchase agreements or other contracts of purchase for any real or personal property that the City Council determines is needed and to provide for the issuance of certificates of participation in the payment obligations of the City under such financing agreements, lease-purchase agreements or other contracts of purchase and (ii) to pledge lawfully available funds to payment of such financing agreements, lease- purchase agreements or other contracts of purchase; and WHEREAS, after consultation with its financial advisor and bond counsel, the City finds it is in the best interests of the City to authorize the execution and delivery of a loan agreement (the "WIFIA Loan Agreement") with the United States Environmental Protection Agency, acting by and through the Administrator of the Environmental Protection Agency("EPA") through the loan program authorized by the Water Infrastructure Finance and Improvement Act ("WIFIA") in an amount not to exceed $123,480,000 (excluding capitalized interest) (the "WIFIA Loan"), which loan shall be evidenced by an obligation executed and delivered to EPA(the "WIFIA Bond"); and WHEREAS, the City adopts this Resolution (i) to authorize the execution and delivery of the WIFIA Loan Agreement, the WIFIA Bond and any other related agreements, certificates and documents (collectively, the "WIFIA Financing Documents"), (ii) to designate certain officials and employees of the City as authorized representatives to take action on the City's behalf and (iii) to delegate to such representatives the authority to negotiate and execute the WIFIA Financing Documents. NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City, as follows: Section 1. Authorization of the Obligations and Related Agreements. The City hereby authorizes the WIFIA Loan and the execution and delivery of the WIFIA Financing Documents. The proceeds of the WIFIA Loan received by the City pursuant to the terms of the WIFIA Loan Agreement shall be used to pay a portion of the eligible project costs of the Project. The remaining terms of the WIFIA Financing Documents shall be established as provided in Section 4 hereof. Section 2. Authorized Representative. The City authorizes and directs each of the City Manager, the Assistant City Manager, the Finance Director or the designee of any of them (each acting individually or collectively, an "Authorized Representative") to act on behalf of the City and execute and deliver the WIFIA Financing Documents and to determine the remaining terms of the Obligations to be established as set forth in Section 4 hereof. Section 3. Security. The WIFIA Loan shall be secured by and payable from the City's general non-restricted revenues and other funds that are lawfully available for that purpose, including revenues from an ad valorem tax authorized to be levied under the City's permanent rate limit under sections 11 and 11b, Article XI of the Oregon Constitution, and revenues derived from other taxes, if any, levied by the City in accordance with and subject to limitations and restrictions imposed under applicable law or contract, that are not dedicated, restricted or obligated by law or contract to an inconsistent expenditure or use. The City pledges its full faith and credit and taxing powers to the payment of the WIFIA Loan as contemplated by ORS 287A.315, or any successor statute. The registered owner of the WIFIA Bond will not have a lien on or security interest in the Project or any other property financed or refinanced with the proceeds of the WIFIA Bond. Section 4. Delegation for Establishment of Terms and Sale of the Obligations. Each Authorized Representative is hereby authorized and directed, on behalf of the City without further approval of the City Council to: (a) negotiate the terms of the WIFIA Financing Documents, including provisions related to capitalized interest; (b) make any covenants or agreements necessary or desirable to obtain favorable financing terms for the WIFIA Financing Documents, including without limitation, a pledge of the City's full faith and credit and, if desirable, a pledge of other amounts available to the City including net revenues of the City's wastewater system; (c) obtain ratings on the WIFIA Bond if determined by the Authorized Representative to be in the best interest of the City and expend WIFIA Bond proceeds to pay for such ratings; (d) enter into covenants regarding the use of the proceeds of the WIFIA Bond received by the City pursuant to the WIFIA Loan Agreement; (e) approve, execute and deliver the WIFIA Financing Documents; (f) execute and deliver a certificate specifying the actions taken pursuant to this Section 4, and any other certificates, documents or agreements that an Authorized Page 2-Resolution No.25-37 Representative determines are desirable to execute, deliver and administer the WIFIA Financing Documents and otherwise to sell, deliver and administer the WIFIA Bond in accordance with this Resolution. Section 5. Appointment of Special Counsel and Financial Advisor. The City hereby appoints Orrick, Herrington &Sutcliffe LLP of Portland, Oregon, as special counsel to the City with respect to the WIFIA Financing Documents, and PFM Financial Advisors LLC, as Financial Advisor to the City with respect to the WIFIA Financing Documents. Section 6. Resolution to Constitute Contract. In consideration of the purchase and acceptance of the WIFIA Bond by those who shall own the same from time to time (the "WIFIA Bond Owners"),the provisions of this Resolution shall be part of the contract of the City with the WIFIA Bond Owners and shall be deemed to constitute a contract between the City and the WIFIA Bond Owners pursuant to ORS 287A.315 and ORS 287A.325, or any successor statute. The covenants, pledges, representations and warranties contained in this Resolution, and in the WIFIA Financing Documents, including without limitation the City's covenants and pledges contained in Section 3 hereof, and the other covenants and agreements herein set forth to be performed by or on behalf of the City shall be contracts for the equal benefit, protection and security of the WIFIA Bond Owners,all of which shall be of equal rank without preference, priority or distinction except as expressly provided in or pursuant to this Resolution. Section 7. Effective Date. This Resolution shall take effect immediately upon its adoption by the City Council. //Signatures on Page 3 of 4 Page 3-Resolution No.25-37 Considered and adopted by the City Council of the City of Lake Oswego, Oregon, at a regular meeting held on the 5th day of August 2025. AYES: NOES: EXCUSED: ABSTAIN: Joseph M. Buck, Mayor ATTEST: Kim Ono, Interim City Recorder Approved as to Form: Ellen Osoinach, City Attorney Page 4-Resolution No.25-37 ATTACHMENT 2 WIFIA Terms and Analysis Summary *La ke Oswego Wastewater August 5, 2025 Treatment Facility WIFIA Loan Terms Summary The table below lists the keys terms and conditions from the EPA's WIFIA loan. Loan Amount $123,480,000 Interest Rate Based on US Treasury Bureau of Public Debt's daily rate table for securities of similar term plus one basis point (0.01%). Rate Adjustment Once, if desired, between execution and first draw. Maturity Date 2063 based on projected substantial completion date of 2028 plus up to 5 years of deferred payments plus 30-year loan. Capitalized Interest Debt service payments can be deferred for up to 5 years after Substantial Completion date. Permitting Assistance Federal Environmental Permitting Assistance provided. Prepayment Penalty None Commitment to Debt I Not on loan agreement execution, but rather only when drawn. Funding Scenario Comparison This table compares the financial implications of the WIFIA loan. Scenario 1 includes the WIFIA loan plus additional Full Faith & Credit (FF&C) bonds required to cap the utility rate increases at 3.9% as previous described ("affordability threshold"). Scenario 2 omits the WIFIA loan in favor of only Full Faith & Credit bonds to cover the capital construction. To avoid the large and abrupt rate increase, the project team has been using Scenario 1 since early 2022. Note these numbers are based on estimates and are subject to change with the final pricing submittal. Scenario 1. WIFIA Loan + FF&C 2. FF&C Only Loan Amount [A] $123,480,000 $ -- Bond Amount [B] $59,000,000 $182,000,000 Total Debt Drawn [A+B] $182,480,000 $182,000,000 Initial Utility Rate Increase 3.9% 35.0% Average Rate Increase (through 2062) 3.9% 3.1% Debt Payoff Year 2062 2051 Total Interest Paid [C] $204,520,000 $117,000,000 Total Debt+ Interest [A+B+C] $387,000,000 $299,000,000 Net Present Value(i=4%) $182,100,000 $176,600,000 ATTACHMENT 3 CO Sr4, ( QI WIFIA % I PROGRAM,,,,,,t T Pao"° Skadden Draft 6/17/2025 WIFIA CUSIP Number: [ ] UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WIFIA LOAN AGREEMENT For Up to $123,480,000 With CITY OF LAKE OSWEGO, REGON for the t LAKE OSWEGO WASTEWATER TREATMENT FACILITY REPLACEMENT PROJECT (WIFIA ID—21111OR) Dated as of[ ], 2025 TABLE OF CONTENTS Page Section 1. Definitions 2 Section 2. Interpretation 14 Section 3. WIFIA Loan Amount 15 Section 4. Disbursement Conditions 15 Section 5. Term 16 Section 6. Interest Rate 16 Section 7. Security and Priority. 16 Section 8. Repayments 17 Section 9. Prepayment 19 Section 10. Fees and Expenses 20 Section 11. Conditions Precedent 21 Section 12. Representations and Warranties of Borrower 25 Section 13. Representations and Warranties of WIFIA Lender 29 Section 14. Affirmative Covenants 30 Section 15. Negative Covenants 34 Section 16. Reporting Requirements 35 Section 17. Events of Default and Remedies 35 Section 18. Disclaimer of Warranty 38 Section 19. No Personal Recourse 1111 38 Section 20. No Third-Party Rights 38 Section 21. Borrower's Authorized Representative 38 Section 22. WIFIA Le er's Authorized Re resentative 38 Section 23. Service U �, 39 Section 24. Amendments, Waivers 39 Section 25. Governing Law 39 Section 26. Severability 39 Section 27. Successors and Assigns 39 Section 28. Remedies Not Exclusive 39 Section 29. Delay or Omission Not Waiver 39 Section 30. Counterparts 40 Section 31. Notices 40 Section 32. Indemnification 41 Section 33. Sale of WIFIA Loan 41 Section 34. Effectiveness 42 Section 35. Release of Lien 42 Section 36. Survival 42 Section 37. Integration 42 Schedules Exhibits SCHEDULE I—WIFIA Loan Specific Terms EXHIBIT A—Form of WIFIA Note SCHEDULE II—Project Details EXHIBIT B—Form of Closing Certificate SCHEDULE III—Borrower Disclosures EXHIBIT C—Form of Public Benefits Report SCHEDULE IV—Requisition Procedures EXHIBIT D—Form of Requisition SCHEDULE V—Reporting Requirements EXHIBIT E—Form of Certification of Eligible SCHEDULE VI—WIFIA Loan Amortization Project Costs Documentation Schedule EXHIBIT F—Form of Construction Monitoring Report EXHIBIT G—Form of Certificate of Substantial Completion EXHIBIT H-1 —Opinions Required from General Counsel EXHIBIT H-2—Opinions Required from Bond Counsel D RAFT ii WIFIA LOAN AGREEMENT THIS WIFIA LOAN AGREEMENT(this"Agreement"),dated as of the Effective Date, is by and between the Borrower (as defined herein) and the UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, an agency of the United States of America ("EPA"), acting by and through the Administrator of the Environmental Protection Agency (the "Administrator"), with an address at 1200 Pennsylvania Avenue NW, Washington, DC 20460 (the "WIFIA Lender"). RECITALS: WHEREAS,the Congress of the United States of America enacted the Water Infrastructure Finance and Innovation Act ("WIFIA"), § 5021 et seq. of Public Law 113-121 (as amended, and as may be further amended from time to time,the"Act"),which is codified as 33 U.S.C. §§ 3901- 3915; WHEREAS, the Act authorizes the WIFIA Lender to enter into agreements to provide financial assistance with one or more eligible entities to make secured loans with appropriate security features to finance a portion of the eligible costs of projects eligible for assistance; WHEREA the Borrow- I. -•uested t i. the WIFIA Lender make the WIFIA Loan(as defined herein) in principal a lun ne o exc the M immrmcipal Amount (as defined herein)to be used pay a porti oft - igib ' -ct its (defined herein)pursuant to the Application(as de ed her ' ); WHEREA , nt to e WIF rm Shee .Refined hereinjthe Administrator has approved WIFIA financial assistance for the Project to be provided in the form of the WIFIA Loan, subject to the terms and conditions contained herein; WHEREAS, based on the Application and the representations, warranties and covenants set forth herein, the WIFIA Lender proposes to make funding available to the Borrower for a portion of the costs of the Project through the issuance of the WIFIA Note (as defined herein), upon the terms and conditions set forth herein; WHEREAS,the Borrower agrees to repay any amount due pursuant to this Agreement and the WIFIA Note in accordance with the terms and provisions hereof and of the WIFIA Note; and WHEREAS, the WIFIA Lender has entered into this Agreement in reliance upon, among other things, the information and representations of the Borrower set forth in the Application and the supporting information provided by the Borrower. NOW, THEREFORE, the premises being as stated above, and for good and valuable consideration,the receipt and sufficiency of which are acknowledged to be adequate,and intending to be legally bound hereby, it is hereby mutually agreed by and between the Borrower and the WIFIA Lender as follows: 1 ARTICLE I DEFINITIONS AND INTERPRETATION Section 1. Definitions. Capitalized terms used in this Agreement shall have the meanings set forth below in this Section 1 or as otherwise defined in this Agreement, except as otherwise expressly provided herein. Any term used in this Agreement that is defined by reference to any other agreement shall continue to have the meaning specified in such agreement, whether or not such agreement remains in effect. "Act"has the meaning provided in the recitals hereto. "Additional Construction Contract" means, with respect to the Project, each Construction Contract entered into after the Effective Date. "Additional Obligations" means any Obligations permitted under Section 15(a) (Indebtedness), which Obligations are issued or incurred after the Effective Date in accordance with applicable law, any applicable resolution and this Agreement. "Administrator"has the meaning provided in the preamble hereto. "Agreement"has the meaning provided in the preamble hereto. "Applications the Borro 's ap ion f WIFIA fina al assistance received by the WIFIA Lender on the Application ece. D . "Application Receipt te" t meaning cribed to such term in Part A of Schedule I (WIFIA Loan Speci ac Terms). "Bankruptcy Related Event" means, with respect to the Borrower, (a) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any of its debts, or of a substantial part of the assets thereof, under any Insolvency Laws, or (ii) the appointment of a receiver, trustee, liquidator, custodian, sequestrator, conservator or similar official for the Borrower or for a substantial part of the assets thereof and, in any case referred to in the foregoing subclauses (i)and (ii),such proceeding or petition shall continue undismissed for sixty(60)days or an order or decree approving or ordering any of the foregoing shall be entered; (b)the Borrower shall(i) apply for or consent to the appointment of a receiver, trustee, liquidator, custodian, sequestrator, conservator or similar official therefor or for a substantial part of the assets thereof, (ii)generally not be paying its debts as they become due unless such debts are the subject of a bona fide dispute, or become unable to pay its debts generally as they become due, (iii) fail to make a payment of WIFIA Debt Service in accordance with the provisions of Section 8 (Repayments) and such failure is not cured within thirty (30) days following notification by the WIFIA Lender of failure to make such payment, (iv) make a general assignment for the benefit of creditors, (v) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition with respect to it described in clause (a) of this definition, (vi) commence a voluntary proceeding under any Insolvency Law, or file a voluntary petition seeking liquidation, reorganization, an arrangement with creditors or an order for relief, in each case under any Insolvency Law, (vii) file an answer 2 admitting the material allegations of a petition filed against it in any proceeding referred to in the foregoing subclauses (i) through (v), inclusive, of this clause (b), or (viii) take any action for the purpose of effecting any of the foregoing, including seeking approval or legislative enactment by any Governmental Authority to authorize commencement of a voluntary proceeding under any Insolvency Law; (c) (i) any Person shall commence a process pursuant to which all or a substantial part of the Pledged Revenues may be sold or otherwise disposed of in a public or private sale or disposition pursuant to a foreclosure of the Liens thereon securing the Obligations, or (ii) any Person shall commence a process pursuant to which all or a substantial part of the Pledged Revenues may be sold or otherwise disposed of pursuant to a sale or disposition of such Pledged Revenues in lieu of foreclosure; or (d) any receiver, trustee, liquidator, custodian, sequestrator, conservator or similar official shall transfer, pursuant to directions issued by the holders of the Obligations, funds on deposit in any of the Borrower Accounts upon the occurrence and during the continuation of an Event of Default under this Agreement for application to the prepayment or repayment of any principal amount of the Obligations other than in accordance with the provisions of the Related Documents. "Base Case Financial Model" means the financial model or plan, prepared by the Borrower and delivered to the WIFIA Lender as part of the Application, forecasting the capital costs of the System(including the Project)and the estimated debt service coverage,rates,revenues, operating expenses and major maintenance requirements of the System (as may be applicable)for the Forecast Period and based upon assumptions and methodology provided by the Borrower and acceptable to the endee as of the Effec Date Mt or RC shall have been provided to the WIFIA Lender as a fully fuiictio 'cros Excel-based'financial model or such other format agreed with the WIFIA Lender. "Borrower"has the meaning ascribe o such term Part A of Sc dule I(Loan Specific Terms). "Borrower Accounts" has the meaning ascribed to such term in Part D of Schedule I (WIFIA Loan Specific Terms). "Borrower Fiscal Year" means (a) as of the Effective Date, the Initial Borrower Fiscal Year or(b)such other fiscal year as the Borrower may hereafter adopt after giving thirty(30)days' prior written notice to the WIFIA Lender in accordance with Part E of Schedule V (Reporting Requirements). "Borrower's Authorized Representative" means any Person who shall be designated as such pursuant to Section 21 (Borrower's Authorized Representative). "Business Day"means any day other than a Saturday, a Sunday or a day on which offices of the Federal Government or the State are authorized to be closed or on which commercial banks are authorized or required by law, regulation or executive order to be closed in New York, New York, the Trustee Location or the Project Location. "Capitalized Interest Date"has the meaning set forth in Part C of Schedule I (Key Loan Metrics). 3 "Capitalized Interest Period" has, if applicable, the meaning ascribed to such term in Part C of Schedule I (WIFIA Loan Specific Terms), or if designated as "Not Applicable" in Schedule I, means capitalized interest shall not be applicable with respect to the WIFIA Loan hereunder. "Closing Certificate" has the meaning provided in Section 11(a) (Conditions Precedent to Effectiveness). "Construction Contract" means, with respect to the Project, any prime contract entered into by the Borrower that involves any construction activity(such as demolition, site preparation, civil works construction, installation, remediation, refurbishment, rehabilitation, or removal and replacement services)for the Project. For the avoidance of doubt,"Construction Contract"shall include each Existing Construction Contract and, upon the effectiveness thereof, each Additional Construction Contract. "Construction Monitoring Report" means a report on the status of the Project, substantially in the form of Exhibit F(Form of Construction Monitoring Report),unless otherwise agreed to be in a different form by the WIFIA Lender. "Construction Period"means the period from the Effective Date through(and including) the end of the Federal Fiscal Year during which the Substantial Completion Date occurs. "Construc u n Pe .d S vicin e"h mea g ascribed t uch term in Part F of Schedule I (WIFI' oan S.ecflc Terms). "Construc 1edu ' mea ( the initial hedule or s dules on which the construction timetabluN for the oject a t forth, attached hereto as art B of Schedule II (Project Details),and(b)any updates thereto included in the Construction Monitoring Report most recently submitted to the WIFIA Lender in accordance with Part C of Schedule V (Reporting Requirements). "CPI" means the Consumer Price Index for All Urban Consumers (CPI-U) for the U.S. City Average for All Items, 1982-84=100 (not seasonally adjusted) or its successor, published by the Bureau of Labor Statistics and located at https://www.bls.gov/news.release/cpi.t0l.htm. "Debt Service Payment Commencement Date"means the earlier to occur of(a)the first Payment Date immediately following the later of (i) the first Disbursement or (ii) if there is a Capitalized Interest Period, the end of the Capitalized Interest Period, in each case as set forth in the WIFIA Loan Amortization Schedule; or (b) the Payment Date falling closest to, but not later than, the fifth anniversary of the Substantial Completion Date. "Default"means any event or condition that,with the giving of any notice, the passage of time, or both, would be an Event of Default. "Default Rate" has the meaning ascribed to such term in Part C of Schedule I (WIFIA Loan Specific Terms). 4 "Development Default"means(a)the Borrower abandons work or fails, in the reasonable judgment of the WIFIA Lender, to diligently prosecute the work related to the Project or (b) the Borrower fails to achieve Substantial Completion of the Project by the Development Default Date, unless such failure to achieve Substantial Completion shall occur by reason of an Uncontrollable Force that is not due to the fault or gross negligence of the Borrower (and which the Borrower could not reasonably have avoided or mitigated), in which case the Development Default Date shall be extended by the number of days equal to the duration of such Uncontrollable Force. "Development Default Date" has the meaning ascribed to such term in Part B of Schedule I (WIFIA Loan Specific Terms). "Disbursement" means a disbursement of WIFIA Loan proceeds, subject to and in accordance with this Agreement. "Dollars" and"$"means the lawful currency of the U.S. "Effective Date" means the date of this Agreement, as specified in Part A of Schedule I (WIFIA Loan Specific Terms). "Eligible Project Costs" means amounts in the Project Budget approved by the WIFIA Lender, which are paid by or for the account of the Borrower in connection with the Project (including, as applicable, Project expenditures '• urred prior to the receipt of WIFIA credit assistance),which shall arTise from the foll win: (a devIp -ph. e a 'ties, including planning, feasibility analysis (includin_ in r. .ted analysi. e• .sary to carry out an eligible project), revenue forecastin:, - • onmei%tal revie •, .-rmitting, preliminary engineering and design work and other preconstruction activities; (b) construction, reconstruction, rehabilitation, and replacement activities; (c) the acquisition of real property or an interest in real property (including water rights, land relating to the Project and improvements to land), environmental mitigation (including acquisitions pursuant to 33 U.S.C. §3905(8)), construction contingencies, and acquisition of equipment; or (d) capitalized interest (with respect to Obligations other than the WIFIA Loan) necessary to meet market requirements, reasonably required reserve funds, capital issuance expenses, and other carrying costs during construction; provided, that Eligible Project Costs must be consistent with all other applicable federal law, including the Act. "Eligible Project Costs Documentation" means all supporting documentation with respect to the Eligible Project Costs, including copies of invoices and records evidencing incurred or previously paid Eligible Project Costs, which documentation should contain sufficient detail satisfactory to the WIFIA Lender(e.g. if the Borrower intends to utilize WIFIA Loan proceeds to make construction progress payments for Eligible Project Costs, the documentation should 5 demonstrate that such progress payments are commensurate with the cost of the work that has been completed). "EMMA"means the Electronic Municipal Market Access system as described in 1934 Act Release No. 59062 and maintained by the Municipal Securities Rulemaking Board established pursuant to Section 15B(b)1 of the Securities Exchange Act of 1934, as amended, and its successors. "EPA"has the meaning provided in the preamble hereto. "Event of Default" has the meaning provided in Section 17(a) (Events of Default and Remedies). "Event of Loss"means any event or series of events that causes any portion of the System to be damaged, destroyed or rendered unfit for normal use for any reason whatsoever, including through a casualty, a failure of title, or any loss of such property through eminent domain. "Existing Construction Contract"means each Construction Contract of the Borrower in effect as of the Effective Date as set forth in Part C of Schedule II (Project Details). "Existing Indebtedness" means indebtedness of the Borrower that has been issued or incurred prior to t ive Date, as listed and •-scribe. '• ' • t f Schedule III (Borrower Disclosures). "Federal cal Year" means the fis' ' - of 1 • e.eral Go rnment, which is the twelve (12) month period that ends on Septe .er 30 i h: pecified cale ar year and begins on October 1 of the preceding calendar year. "Federal Government"means the U.S. and its departments and agencies. "FEIN"means a Federal Employer Identification Number. "Final Disbursement Date" means the earliest of(a) the date on which the WIFIA Loan has been disbursed in full; (b)the last anticipated date of disbursement set forth in the then-current WIFIA Loan Disbursement Schedule; (c) the date as of which the Borrower has certified to the WIFIA Lender that it will not request any further disbursements under the WIFIA Loan; (d) the date on which the WIFIA Lender terminates its obligations relating to disbursements of any undisbursed amounts of the WIFIA Loan in accordance with Section 17 (Events of Default and Remedies); and(e)the date that is one (1)year after the Substantial Completion Date. "Final Maturity Date" has the meaning ascribed to such term in Part C of Schedule I (WIFIA Loan Specific Terms). "Financial Statements" has the meaning provided in Section 12(q) (Financial Statements). "Flow of Funds" has the meaning ascribed to such term in Part D of Schedule I (WIFIA Loan Specific Terms). 6 "Forecast Period" means, as of any date, the time period from and including the then- current Borrower Fiscal Year until the later ending date of either (a) the five (5) immediately succeeding Borrower Fiscal Years or (b) the end of the Borrower Fiscal Year in which the Borrower's then-currently effective capital improvement plan for the System concludes. "GAAP" means generally accepted accounting principles for U.S. state and local governments, as established by the Government Accounting Standards Board (or any successor entity with responsibility for establishing accounting rules for governmental entities), in effect from time to time in the U.S. "Governmental Approvals" means all authorizations, consents, approvals, waivers, exceptions,variances, filings, registrations,permits, orders, licenses, exemptions and declarations of or with any Governmental Authority. "Governmental Authority" means any federal, state, provincial, county, city, town, village, municipal or other government or governmental department, commission, council, court, board, bureau, agency, authority or instrumentality (whether executive, legislative, judicial, administrative or regulatory), of or within the U.S. or its territories or possessions, including the State and its counties and municipalities, and their respective courts, agencies, instrumentalities and regulatory bodies, or any entity that acts "on behalf of' any of the foregoing, whether as an agency or authority of such body. "Indemni 1 '"has the meaning p ided ctio 2 (Indemnifi ion). "Initial B i rower sc Ye " has in scri ed to s h term in Part A of Schedule I (Loan •ec' , 'rm�. "Initial Construction Period Servicing Fee" has the meaning ascribed to such term in Part F of Schedule I (WIFIA Loan Specific Terms). "Insolvency Laws" means the U.S. Bankruptcy Code, 11 U.S.C. § 101 et seq., as from time to time amended and in effect, and any state bankruptcy, insolvency, receivership, conservatorship or similar law now or hereafter in effect. "Interest Only Period"has, if applicable,the meaning ascribed to such term in Part C of Schedule I (WIFIA Loan Specific Terms), or if designated as "Not Applicable" in Schedule I, means no interest only period shall be applicable with respect to the WIFIA Loan hereunder. "Interest Payment Date"has the meaning ascribed to such term in Part C of Schedule I (WIFIA Loan Specific Terms). "Intergovernmental Agreement" has the meaning ascribed to such term in Part E of Schedule I (WIFIA Loan Specific Terms). "Interim Financing" means interim bond anticipation notes, commercial paper or other short-term temporary financing, in each case with a maturity not later than five(5)years following the issuance or incurrence thereof,the proceeds of which are applied to pay Eligible Project Costs. 7 "Investment Grade Rating" means a rating of`BBB-', `Baa3', `bbb-', or 'BBB (low)', or higher, from a Nationally Recognized Rating Agency. "Legal Entity" has the meaning ascribed to such term in Part A of Schedule I (WIFIA Loan Specific Terms). "Lien" means any mortgage, pledge, hypothecation, assignment, mandatory deposit arrangement, encumbrance, attachment, lien (statutory or other), charge or other security interest, or preference,priority or other security agreement or preferential arrangement of any kind or nature whatsoever, including any sale-leaseback arrangement, any conditional sale or other title retention agreement, any financing lease having substantially the same effect as any of the foregoing, and the filing of any financing statement or similar instrument under the UCC or any other applicable law. "Loss Proceeds" means any proceeds of builders' risk or casualty insurance (other than any proceeds from any policy of business interruption insurance insuring against loss of revenues upon the occurrence of certain casualties or events covered by such policy of insurance) or proceeds of eminent domain proceedings resulting from any Event of Loss. "Material Adverse Effect"means a material adverse effect on(a)the System,the Project or the Pledged Revenues, (b) the business, operations, properties, condition (financial or otherwise) or prospects of he Borrower, (c)the 1; - ,lity,validity or enforceability of any material provision of WIFIA Loan ocument, (d) the . of the Borrower to enter into, perform or comply with any of its mat is obligations un. •r . v WIFIA Itn Do ent, (e) the validity, enforceability or priority o he ledge or ( the WIFIA Lender's right r remedies available under any WIFIA Loan m , I "Maximum Principal Amount" has the meaning ascribed to such term in Part C of Schedule I (WIFIA Loan Specific Terms). "National Historic Preservation Act" or "NHPA" means the National Historic Preservation Act, codified at 54 U.S.C. § 300101, et seq. "Nationally Recognized Rating Agency" means any nationally recognized statistical rating organization registered with, and identified as such by, the Securities and Exchange Commission. "NEPA" means the National Environmental Policy Act of 1969, as amended, and any successor statute of similar import, and regulations thereunder, in each case as in effect from time to time. "NEPA Determination" has the meaning ascribed to such term in Part B of Schedule I (WIFIA Loan Specific Terms). "Obligations"means,collectively,the Existing Indebtedness,the WIFIA Loan,Additional Obligations and any other debt of the Borrower that is secured in whole or in part by the Pledged Revenues. 8 "Operating Period Servicing Fee" has the meaning ascribed to such term in Part F of Schedule I (WIFIA Loan Specific Terms). "Organizational Documents" means: (a) the constitutional and statutory provisions that are the basis for the existence and authority of the Borrower, including any enabling statutes, ordinances or public charters and any other organic laws establishing the Borrower and (b) the resolutions,bylaws,or other organizational documents(including any amendments,modifications or supplements thereto) of or adopted by the Borrower by which the Borrower, its powers, operations or procedures or its securities, bonds, notes or other obligations are governed or from which such powers are derived. "Other Financing Documents" means any agreement, instrument, or document (excluding the WIFIA Loan Documents) entered into between the Borrower and a holder of Obligations providing for the issuance of Obligations. "Outstanding" means (a) with respect to Obligations other than the WIFIA Loan, Obligations that have not been canceled or legally defeased or discharged, and(b) with respect to the WIFIA Loan, the (i) entire amount available to be drawn under this Agreement (including amounts drawn and amounts that remain available to be drawn), less(ii) any amount that has been irrevocably determined will not be drawn under this Agreement, less (iii) the aggregate principal amount of the WIFIA Loan Balance that has been repaid or prepaid. "Patriot , " me. th nitin and S then America by roviding Appropriate Tools Required to tercep 1 d Obstruct Terrorism ct o s ame d, and all regulations promulgated there I der. I X , "Payment r . • means each Intered Payment ate and each Principal Payment Date. "Payment Default" has the meaning provided in Section 17(a)(i) (Payment Default). "Permitted Debt" means, collectively, Existing Indebtedness, the WIFIA Loan and Additional Obligations. "Permitted Liens"means: (a) Liens imposed pursuant to the WIFIA Loan Documents; (b) Liens imposed pursuant to the Other Financing Documents; (c) Liens imposed by law, including Liens for taxes that are not yet due or are being contested in compliance with Section 14(i) (Material Obligations); (d) carriers', warehousemen's, mechanics', materialmen's, repairmen's and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than thirty (30) days or are being contested in compliance with Section 14(i) (Material Obligations); 9 (e) pledges and deposits made in the ordinary course of business in compliance with workers' compensation, unemployment insurance, and other social security laws or regulations; (f) deposits to secure the performance of trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business; (g) judgment Liens in respect of judgments that do not constitute an Event of Default under Section 17(a)(viii) (Material Adverse Judgment); and (h) easements,zoning restrictions,rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that, in any case, do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower. "Person" means and includes an individual, a general or limited partnership, a joint venture,a corporation,a limited liability company,a trust,an unincorporated organization and any Governmental Authority, including in each case such Person's successors and permitted assigns. "Pledge" has the meaning ascribed to such term in Section 7(a) (Security and Priority; Dedicated Source of Repayment "Pledged venue h, ) nin_ ,ed t erm i art D of Schedule I (WIFIA Loan Spe ac Ter "Principal t Da "has th :ning as 's to such term in Part C of Schedule I (WIFIA Loan Specific Terms). "Project" has the meaning ascribed to such term in Part B of Schedule I (WIFIA Loan Specific Terms). "Project Budget" means the budget for the Project attached to this Agreement as Part A of Schedule II (Project Details) showing a summary of Total Project Costs with a breakdown of all Eligible Project Costs and the estimated sources and uses of funds for the Project. "Project Location"has the meaning ascribed to such term in Part B of Schedule I (Loan Specific Terms). "Projected Substantial Completion Date" has the meaning ascribed to such term in Part B of Schedule I (WIFIA Loan Specific Terms). "Public Benefits Report" means the report, in the form attached hereto as Exhibit C (Form of Public Benefits Report). "Related Documents" means the WIFIA Loan Documents, the Intergovernmental Agreement and the Other Financing Documents. 10 "Requisition" means the request for Disbursement in the form attached hereto as Exhibit D (Form of Requisition). "SAM" means the federal System for Award Management (www.SAM.gov) (or any successor system or registry). "Sanctions Laws"means collectively, any applicable anti-drug trafficking, anti-terrorism, anti-money laundering, anti-bribery, or anti-corruption laws or regulations, as applicable, including those contained in the Bank Secrecy Act of 1970 (as amended) and the U.S. Patriot Act. "Servicer"means such entity or entities as the WIFIA Lender shall designate from time to time to perform, or assist the WIFIA Lender in performing, certain duties hereunder. "Servicing Fee" means the Servicing Set-Up Fee and any Construction Period Servicing Fee or Operating Period Servicing Fee. "Servicing Set-Up Fee" has the meaning ascribed to such term in Part F of Schedule I (WIFIA Loan Specific Terms). "State" has the meaning ascribed to such term in Part A of Schedule I (WIFIA Loan Specific Terms). "Substantiate etion" me wit sect je stage at which the Project is able to perform t fu tions whi• 'roj is designed. "Substantial Corn ti Dat Ice. . e • e which the Blorrower certifies to the WIFIA Lender, with evidence s sfactory • e WIF der and notice to the WIFIA Lender in accordance with Part E of Schedule V (Reporting Requirements),that Substantial Completion has occurred. "System" has the meaning ascribed to such term in Part A of Schedule I (WIFIA Loan Specific Terms). "System Revenues" has the meaning ascribed to such term in Part A of Schedule I (WIFIA Loan Specific Terms). "Total Project Costs"means (a)the costs paid or incurred or to be paid or incurred by the Borrower in connection with or incidental to the acquisition, design, construction and equipping of the Project, including legal, administrative, engineering, planning, design, insurance and financing (including costs of issuance); (b) amounts, if any, required by the WIFIA Loan Documents or any Other Financing Documents to be paid into any fund or account upon the incurrence of the WIFIA Loan or any other Obligations, in each case in respect of the Project; (c)payments when due (whether at the maturity of principal, the due date of interest, or upon optional or mandatory prepayment)in respect of any indebtedness of the Borrower(other than the WIFIA Loan), in each case in connection with the acquisition, design, construction and equipping of the Project; and (d) costs of equipment and supplies and initial working capital and reserves 11 required by the Borrower for the commencement of operation of the Project, including general administrative expenses and overhead of the Borrower. "Trustee" has, if applicable, the meaning ascribed to such term in Part A of Schedule I (WIFIA Loan Specific Terms), or if designated as"Not Applicable"in Schedule I,means a trustee shall not be applicable with respect to the WIFIA Loan hereunder.1 "Trustee Location" has, if applicable, the meaning ascribed to such term in Part A of Schedule I (WIFIA Loan Specific Terms), or if designated as "Not Applicable" in Schedule I, means a trustee location shall not be applicable with respect to the WIFIA Loan hereunder. "UEI Number" means, with respect to any Person, a number issued by the Federal Government(through SAM.gov) as the unique entity identifier for such Person. "Uncontrollable Force"means any cause beyond the control of the Borrower, including: (a) a hurricane, tornado, flood or similar occurrence, landslide, earthquake, fire or other casualty, strike or labor disturbance, freight embargo, act of a public enemy, explosion, war, blockade, terrorist act, insurrection, riot, general arrest or restraint of government and people, civil disturbance or similar occurrence, sabotage,pandemic, or act of God(provided,that the Borrower shall not be required to settle any strike or labor disturbance in which it may be involved)or(b) the order or judgment of any federal, state or local court, administrative agency or governmental officer or body, if it is not also the result of wi941 or negligent action or a lack of reasonable diligence of the Borrower and the Borrower ,does not control the a inistrative agency or governmental officer or body; provided,that the diligent contest agood f h of any such order or judgment shall not constitute or be construed as a willful or negligent actio r a lack of reasonable diligence of the Borrower. "Uniform Commercial Code" or "UCC" means the Uniform Commercial Code, as in effect from time to time in the State. "U.S."means the United States of America. "WIFIA"has the meaning provided in the recitals hereto. "WIFIA CUSIP Number"has the meaning ascribed to such term in Part A of Schedule I (WIFIA Loan Specific Terms). "WIFIA Debt Service"means with respect to any Payment Date occurring on or after the Debt Service Payment Commencement Date, the principal portion of the WIFIA Loan Balance and any interest payable thereon (including interest accruing after the date of any filing by the Borrower of any petition in bankruptcy or the commencement of any bankruptcy, insolvency or similar proceeding with respect to the Borrower), in each case, (a) as set forth on the WIFIA Loan Amortization Schedule and (b) due and payable on such Payment Date in accordance with the provisions of Section 8(a) (Payment of WIFIA Debt Service). 'Note to Borrower: Confirm whether there will be a Paying Agent or Registrar for the WIFIA Loan. 12 "WIFIA Debt Service Account" has, if applicable, the meaning ascribed to such term in Part D of Schedule I (WIFIA Loan Specific Terms), or if designated as "Not Applicable" in Schedule I, means a separate debt service account designated for the WIFIA Lender shall not be applicable with respect to the WIFIA Loan hereunder. "WIFIA Debt Service Reserve Account"has, if applicable,the meaning ascribed to such term in Part D of Schedule I (WIFIA Loan Specific Terms), or if designated as "Not Applicable" in Schedule I, means a separate debt service reserve account designated for the WIFIA Lender shall not be applicable with respect to the WIFIA Loan hereunder. "WIFIA Debt Service Reserve Requirement"has, if applicable,the meaning ascribed to such term in Part D of Schedule I (WIFIA Loan Specific Terms), or if designated as "Not Applicable" in Schedule I, means a separate debt service reserve requirement shall not be applicable with respect to the WIFIA Loan hereunder. "WIFIA Interest Rate" has the meaning ascribed to such term in Part C of Schedule I (WIFIA Loan Specific Term). "WIFIA Lender"has the meaning provided in the preamble hereto. "WIFIA Lender's Authorized Representative" means the Administrator and any other Person who shall •- •- '•nate pursu. • to Section 22 (WIFIA L pjder's Authorized Representative). "WIFIA an" means t e secured lo. -- - by tirRirIA Lenlier to the Borrower on the terms and cony 'tions set forth herein, purs .nt to • , in a principal amount not to exceed the Maximum Pri • mount, to be usedin respect ible Project Costs. "WIFIA Loan Amortization Schedule" means the loan amortization schedule reflected in Schedule VI(WIFIA Loan Amortization Schedule),as amended from time to time in accordance with Section 8(c) (Adjustments to WIFIA Loan Amortization Schedule). "WIFIA Loan Balance" means (a) the aggregate principal amount of the WIFIA Loan disbursed by the WIFIA Lender to the Borrower hereunder, plus (b) if applicable, capitalized interest added to the principal balance of the WIFIA Loan pursuant to Section 8(a)(iii) (Payments of WIFIA Debt Service), minus (c) the aggregate principal amount of the WIFIA Loan repaid or prepaid by the Borrower, as reflected from time to time in the WIFIA Loan Amortization Schedule in accordance with Section 8(c) (Adjustments to WIFIA Loan Amortization Schedule). "WIFIA Loan Disbursement Schedule" means the disbursement schedule set forth in Schedule VI (WIFIA Loan Amortization Schedule), reflecting the anticipated disbursement of proceeds of the WIFIA Loan, as such schedule may be amended from time to time pursuant to Section 4(b) (Disbursement Conditions). "WIFIA Loan Documents"means this Agreement,the WIFIA Resolution and the WIFIA Note. 13 "WIFIA Note" has, if applicable, the meaning ascribed to such term in Part E of Schedule I (WIFIA Loan Specific Terms), or if designated as "Not Applicable" in Schedule I, means a note as evidence of the Borrower's Obligation shall not be applicable with respect to the WIFIA Loan hereunder. "WIFIA Resolution" has the meaning ascribed to such term in Part E of Schedule I (WIFIA Loan Specific Terms). "WIFIA Term Sheet" has the meaning ascribed to such term in Part E of Schedule I (WIFIA Loan Specific Terms). Section 2. Interpretation. The rules of interpretation set forth below in this Section 2 shall apply to this Agreement, except as otherwise expressly provided herein. (a) Unless the context shall otherwise require, the words "hereto," "herein," "hereof' and other words of similar import refer to this Agreement as a whole. (b) Words of the masculine gender shall be deemed and construed to include correlative words of the feminine and neuter genders and vice versa. (c) Words importing the singular number shall include the plural number and vice versa unless the context shall of'- +. ' - equire. (d) Th ords `an cl n des" `incl 'n " shall be emed to be followed by the phrase "wit ut limi atio (e) e B e ower's ledge is ated in this reement or the phrase "to the Borrower's knowledge" or a similar phrase is used in this Agreement, the Borrower's knowledge or such phrase(s) shall be interpreted to mean to the best of the Borrower's knowledge after reasonable and diligent inquiry. (f) Unless the context shall otherwise require, references to preambles, recitals, sections, subsections, clauses, schedules, exhibits, appendices and provisions are to the applicable preambles, recitals, sections, subsections, clauses, schedules, exhibits, appendices and provisions of this Agreement. (g) The recitals, schedules and exhibits to this Agreement, and the appendices and schedules to such exhibits, are hereby incorporated by reference and made an integral part of this Agreement. (h) The headings or titles of this Agreement and its sections, schedules or exhibits, as well as any table of contents, are for convenience of reference only and shall not define or limit its provisions. (i) Unless the context shall otherwise require,all references to any resolution,contract, agreement, lease or other document shall be deemed to include any amendments or supplements to, or modifications or restatements or replacements of, such documents that are approved from time to time in accordance with the terms thereof and hereof. 14 (j) Every request, order, demand, application, appointment, notice, statement, certificate, consent or similar communication or action hereunder by any party shall, unless otherwise specifically provided, be delivered in writing in accordance with Section 31 (Notices) and signed by a duly authorized representative of such party. (k) References to "disbursements of WIFIA Loan proceeds" or similar phrasing shall be construed as meaning the same thing as "paying the purchase price of the WIFIA Note." (1) Whenever this Agreement requires a change in principal amount, interest rate or amortization schedule of the WIFIA Loan,it is intended that such change be reflected in the WIFIA Note. Whenever there is a prepayment of the WIFIA Loan, it is intended that such prepayment be implemented through a prepayment of the WIFIA Note. (m) Whenever this Agreement sets forth a time period for a number of days by when a deliverable must be provided or an action must be taken, such time period shall be computed on the basis of a three hundred sixty (360) day year of twelve (12)thirty(30) day months. ARTICLE II THE WIFIA LOAN Section 3. FIA Loan Amount. Th- •rincip. . 11 1 1 A Loan shall not exceed the Maxi ri ipal Amount. Section 4. Disbursement . s ditio (a) IA In pro shall b; •i ursed solely respect of Eligible Project Costs paid or incurred and approved for payment by or on behalf of the Borrower in connection with the Project,including,for the avoidance of doubt,Eligible Project Costs that were initially funded with Interim Financing proceeds. Each Disbursement of the WIFIA Loan shall be made pursuant to the procedures of Schedule IV (Requisition Procedures) and subject to the requirements of this Section 4 and the conditions set forth in Section 11(b) (Conditions Precedent to Disbursements); provided, that no Disbursements shall be made after the Final Disbursement Date. (b) Subject to this Section 4, any scheduled Disbursement (as reflected in the WIFIA Loan Disbursement Schedule) that remains undrawn as of its scheduled date shall automatically be available for the next scheduled Disbursement date,up to the Final Disbursement Date, with the effect of automatically updating the WIFIA Loan Disbursement Schedule (and the WIFIA Loan Amortization Schedule) without need for the WIFIA Lender's approval. The Borrower may also amend the WIFIA Loan Disbursement Schedule by submitting a revised version thereof to the WIFIA Lender no later than thirty (30) days prior to the proposed effective date of such amendment, together with a detailed explanation of the reasons for such revisions. Such revised WIFIA Loan Disbursement Schedule shall become effective upon the WIFIA Lender's approval thereof, which approval shall be deemed granted if the WIFIA Lender has not objected within thirty (30) days from receipt of the revised schedule, and which approval shall have the effect of updating the WIFIA Loan Amortization Schedule to reflect the updated WIFIA Loan Disbursement Schedule. Notwithstanding the foregoing, the date of the first Disbursement 15 shall not be earlier than the initial date of Disbursement set out in the WIFIA Loan Amortization Schedule as of the Effective Date. Section 5. Term. The term of the WIFIA Loan shall extend from the Effective Date to the Final Maturity Date or to such earlier date as all amounts due or to become due to the WIFIA Lender hereunder have been irrevocably paid in full in immediately available funds. Section 6. Interest Rate. The Borrower shall pay interest on the WIFIA Loan Balance at the WIFIA Interest Rate; provided, that, upon the occurrence of an Event of Default, the Borrower shall pay interest on the WIFIA Loan Balance at the Default Rate, (a) in the case of any Payment Default, from (and including) its due date to (but excluding) the date of actual payment of the overdue amount of principal of the WIFIA Loan and accrued interest thereon and(b) in the case of any other Event of Default, from (and including) the date of such occurrence to (but excluding)the earlier of the date on which(i) such Event of Default has been cured(if applicable) in accordance with the terms of this Agreement or waived by the WIFIA Lender and(ii)the WIFIA Loan Balance has been irrevocably paid in full in immediately available funds. Interest shall (x) accrue on the WIFIA Loan commencing on the date of the first disbursement of the WIFIA Loan, (y) be payable commencing on the Debt Service Payment Commencement Date and (z) be computed on the WIFIA Loan Balance on the basis of a three hundred sixty (360) day year of twelve (12) thirty(30) day months. Section 7. Security and Priority; Ded ed Source of Repayment. (a)I As security fthe WIFIA Loan, a rrentl ith the issuance and delivery of this Agreement Eid the WIFIA Note, and pursu t to Oregon ised Statutes Section [287A.315]2, the Borrow ierly gran*Whe WIF nder for its nefit a pledge of the Borrower's full faith and credit and revenue-raising power (including its taxing power) for such payment and performance, subject to Article XI of the Oregon Constitution and any other limitations imposed by applicable law (the "Pledge"). The WIFIA Loan is a full faith and credit obligation of the Borrower and shall be secured by the Pledged Revenues; provided, that the WIFIA Loan shall not be repaid from the proceeds of the WIFIA Loan or any other Federal funds. The Pledge is on parity in right of payment and of security to the pledge of Pledged Revenues in favor of the holders of all other Obligations.As evidence of the Borrower's obligation to repay the WIFIA Loan, the Borrower shall issue and deliver to the WIFIA Lender, as the registered owner, on or prior to the Effective Date, the WIFIA Note. (b) The Borrower hereby agrees that its obligation to pay all WIFIA Debt Service and all additional amounts due and payable pursuant to the WIFIA Loan Documents is absolute and unconditional, and shall not be subject to annual appropriation or any of the following: (i) any setoff, counterclaim, recoupment, defense or other right which the Borrower may have against any Person for any reason whatsoever; (ii) any insolvency, bankruptcy, reorganization or similar proceedings by the Borrower; (iii) abatement through damage, destruction or non-availability of the Project; or(iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing. 2 Note to Borrower: Please confirm. 16 (c) The dedicated source of repayment for the WIFIA Debt Service shall be the Pledged Revenues and/or System Revenues. Section 8. Repayments. (a) Payment of WIFIA Debt Service. (i) No WIFIA Debt Service shall be due or payable prior to the Debt Service Payment Commencement Date. The Borrower shall pay(A)WIFIA Debt Service in the amounts and manner and on the Payment Dates as set forth in the WIFIA Loan Amortization Schedule, as the same may be revised pursuant to Section 8(c) (Adjustments to WIFIA Loan Amortization Schedule) and (B) payments of any other amounts on each other date on which payment thereof is required to be made hereunder; provided, that, in either case if any such date is not a Business Day, payment shall be made on the next Business Day following such date. WIFIA Loan proceeds borrowed and repaid may not be reborrowed. (ii) Notwithstanding anything herein to the contrary, the WIFIA Loan Balance and any accrued interest thereon shall be due and payable in full on the Final Maturity Date. If a Capitalized Intirist Period is applicable as set forth in Part C of Schedule I ( IA Loan Specific Te , duri the Capitalized Interest Period, no payment of principa or interest on the WIFIA Loa will be required to be made. On each Capitalized Interest Date, interest accrued and not ai on the WIFIA Loan during each such six (6) monthrericg shall baAitalized 4c1 dded to the WIFIA Loan Balance, as set forth in the WIFIA Loan Amo AtTion ScheTule— Within thirty (30) days after the end of the Capitalized Interest Period, the WIFIA Lender shall give written notice to the Borrower stating the WIFIA Loan Balance as of the close of business on the last day of the Capitalized Interest Period, which statement thereof shall be deemed conclusive absent manifest error; provided, however, that no failure to give or delay in giving such notice shall affect any of the obligations of the Borrower hereunder or under any of the other WIFIA Loan Documents. Notwithstanding the foregoing, the Capitalized Interest Period shall end immediately upon written notification to the Borrower by the WIFIA Lender that an Event of Default has occurred and that the WIFIA Lender is ending the Capitalized Interest Period, in which case interest shall no longer be capitalized, payments of interest shall be due and payable beginning on the next Interest Payment Date and payments of principal shall be due and payable beginning on the next Principal Payment Date, in each case in accordance with the terms hereof. (iv) If an Interest Only Period is applicable as set forth in Part C of Schedule I(WIFIA Loan Specific Terms),during the Interest Only Period,the WIFIA Debt Service payable by the Borrower shall consist of one hundred percent (100%) of the 17 amount of interest then due and payable on the WIFIA Loan Balance, and no payment of principal on the WIFIA Loan will be due and payable during the Interest Only Period. (v) Any defeasance of the WIFIA Loan shall not be deemed a repayment or prepayment of the WIFIA Loan in full, and the Borrower shall comply with all of its obligations hereunder and under the other WIFIA Loan Documents (other than with respect to payments of WIFIA Debt Service, which payments shall continue to be made in accordance with the WIFIA Loan Amortization Schedule by the succeeding entity assuming the Borrower's payment obligations), unless otherwise agreed by the WIFIA Lender, until the irrevocable payment in full in immediately available funds of the WIFIA Loan Balance, together with all accrued interest, fees and expenses with respect thereto. (b) Manner of PAyment. Payments under this Agreement(and the WIFIA Note, which payments shall not be duplicative) shall be made in Dollars and in immediately available funds (without counterclaim, offset or deduction) in accordance with the payment instructions provided by the WIFIA Lender prior to the relevant payment, as may be modified in writing from time to time by the WIFIA Lender; provided, that the failure to provide updated payment instructions shall not affect in any manner the Borrower's obligations hereunder or under any other WIFIA Loan Document. (c) Adjustments to WIFIA Loan Amortization Schedule. "711141k Th WIFI endeA,fro ime to time, dify the WIFIA Loan Amortization Schedule i Schedule VI ( an Am rtization Schedule) to reflect(A) any change to t e A Loan Balance, ) any change o the date and amount of any principal�r interess due a able or t e me due and payable by the Borrower hereunder in accordance with this Agreement, C any mathematical corrections as the WIFIA Lender may determine are necessary, and (D) with the consent of the Borrower (not to be unreasonably withheld), such other information as the WIFIA Lender may determine is necessary for administering the WIFIA Loan and this Agreement. Any calculations described above shall be rounded up to the nearest whole cent. Any adjustments or revisions to the WIFIA Loan Amortization Schedule as a result of a decrease in the WIFIA Loan Balance shall be applied to reduce future payments due on the WIFIA Loan in inverse order of maturity, other than prepayments which shall be applied in accordance with Section 9(b) (General Prepayment Instructions). If the WIFIA Loan Amortization Schedule is modified pursuant to this Section 8(c), the WIFIA Lender shall provide the Borrower with a copy of such revised WIFIA Loan Amortization Schedule, but no failure to provide or delay in providing the Borrower with such copy shall affect any of the obligations of the Borrower under this Agreement or the other WIFIA Loan Documents. The WIFIA Lender may also, from time to time or when so requested by the Borrower,advise the Borrower by written notice of the amount of the WIFIA Loan Balance as of the date of such notice. Absent manifest error, the WIFIA Lender's determination of the WIFIA Loan Balance and all matters as set forth on the WIFIA Loan Amortization Schedule shall be deemed conclusive evidence thereof absent manifest error;provided,that neither the failure to make any such determination, modification, or recordation nor any error in such determination, modification, or recordation shall affect in any manner the Borrower's obligations hereunder or under any other WIFIA Loan Document. 18 (ii) The Borrower shall have the right to propose adjustments to the WIFIA Loan Amortization Schedule with respect to the WIFIA Loan exercisable once on or prior to the date that is one hundred and twenty (120) days preceding the first Principal Payment Date, such adjustments to be submitted by the Borrower to the WIFIA Lender in the form of an updated Schedule VI (WIFIA Loan Amortization Schedule), together with (i) an explanation setting out the reason for such proposed adjustments (such as material unforeseen changes to the Project schedule, costs, or the Borrower's funding strategy) and (ii) an updated rating affirmation or current public rating from a Nationally Recognized Rating Agency on the WIFIA Loan(or other parity obligations, as the WIFIA Lender may agree) demonstrating the Borrower's continued creditworthiness; provided that (x) the form of and any adjustment to the WIFIA Loan Amortization Schedule, together with the Borrower's explanation and the rating affirmation, shall be acceptable to the WIFIA Lender, (y) the weighted average life of the WIFIA Loan shall not exceed [_] years measured as of the initial disbursement date of the WIFIA Loan and (z) the WIFIA Loan Amortization Schedule shall comply with all applicable requirements under this Agreement and law. Such revised WIFIA Loan Amortization Schedule shall become effective upon the approval by the WIFIA Lender in its sole discretion. Section 9. Prepayment. (a) Optional Prepayments. Following the Final Disbursement Date, the Borrower may prepay the WIFIA Loan, without penalty o ,�i) in fullin any date or(ii) in part on any Payment Dare (and, if in park,the amo is t reof to be prepaid shall be determined by the Borrower; provided, that such prepayment sl 1 be ri ipal amounts of$1,000,000 or any integral multiple of$11p in excess there f), in each case from time t me but not more than once annually in accorda e wLth 33 U' § 3908(c)(41A). The Bower may make such prepayment by paying to the WIFIA Lender such principal amount of the WIFIA Loan to be prepaid,together with the unpaid interest accrued on the amount of principal so prepaid to the date of such prepayment and all fees and expenses then due and payable to the WIFIA Lender. Each prepayment of the WIFIA Loan pursuant to this Section 9(a) shall be made on such date and in such principal amount as shall be specified by the Borrower in a written notice, signed by the Borrower's Authorized Representative and delivered to the WIFIA Lender not less than thirty(30) days prior to the requested date of prepayment,unless otherwise agreed by the WIFIA Lender. At any time between delivery of such written notice and the applicable optional prepayment, the Borrower may,without penalty or premium,rescind its announced optional prepayment by further written notice to the WIFIA Lender. Anything in this Section 9(a)to the contrary notwithstanding, the failure by the Borrower to make any optional prepayment shall not constitute a breach or default under this Agreement. (b) General Prepayment Instructions. Upon the WIFIA Lender's receipt of confirmation that payment in full in immediately available funds of the entire WIFIA Loan Balance and any unpaid interest, fees and expenses with respect thereto has occurred as a result of a prepayment,the WIFIA Lender shall surrender the WIFIA Note to the Borrower or its authorized representative, by mail in accordance with Section 31 (Notices) or as otherwise agreed between the parties hereto. If the Borrower prepays only part of the unpaid balance of principal of the WIFIA Loan,the WIFIA Lender may make a notation on the WIFIA Loan Amortization Schedule indicating the amount of principal of and interest on the WIFIA Loan then being prepaid. Absent 19 manifest error, the WIFIA Lender's determination of such matters as set forth on an updated WIFIA Loan Amortization Schedule shall be conclusive evidence thereof; provided, that neither the failure to make any such recordation nor any error in such recordation shall affect in any manner the Borrower's obligations hereunder or under any other WIFIA Loan Document. All partial prepayments of principal shall be applied to reduce the WIFIA Loan Balance such that the remaining scheduled principal payments for the WIFIA Loan set out in the WIFIA Loan Amortization Schedule are reduced substantially pro rata. If such funds have not been so paid on the prepayment date, such principal amount of the WIFIA Loan shall continue to bear interest until payment thereof at the rate provided for in Section 6 (Interest Rate). Section 10. Fees and Expenses. (a) Fees. The Borrower shall pay to the WIFIA Lender: (i) the Servicing Set-Up Fee, which shall be due and payable within thirty (30) days after receipt by the Borrower of an invoice from the WIFIA Lender with respect thereto (or, if earlier, the date of the first Disbursement of the WIFIA Loan); (ii) the Construction Period Servicing Fee, which shall accrue on the first Business Day of the then-current Federal Fiscal Year and shall be due and payable on or prior to each November 15 during the period beginning from the Effective Date through (and includin th nd,of the Federal FiscpLYear d ing which the Substantial Completion Date occurs; provi , that the Initial Construction eriod Servicing Fee shall be due and payable within thi 30)days after receipt by the of an voice from the WIFIA Lender with respec ereto (or, if earlier, the date the first Dis Bement of the WIFIA Loan); and +� (iii) the Operating Period Servicing Fee, which shall accrue on the first Business Day of the then-current Federal Fiscal Year and shall be due and payable on or prior to each November 15,beginning with the first November 15 following the end of the Federal Fiscal Year during which the Substantial Completion Date occurs, until (and including) the Final Maturity Date; provided, that the Operating Period Servicing Fee due and payable with respect to the Federal Fiscal Year during which the Final Maturity Date occurs shall be equal to the pro-rata monthly portion of the then applicable Operating Period Servicing Fee multiplied by the number of partial or whole months remaining between October 1 and the Final Maturity Date. (b) The amount of each Construction Period Servicing Fee(other than the initial Construction Period Servicing Fee) and each Operating Period Servicing Fee shall be adjusted in proportion to the percentage change in CPI for the calendar year immediately preceding the calendar year during which such fee is due. The WIFIA Lender shall notify the Borrower of the amount of each such fee at least thirty(30) days before payment is due, which determination shall be conclusive absent manifest error. (c) Expenses. The Borrower agrees, whether or not the transactions hereby contemplated shall be consummated, to reimburse the WIFIA Lender on demand from time to time,within thirty(30) days after receipt by the Borrower of any invoice from the WIFIA Lender, 20 for any and all fees, costs, charges, and expenses incurred by it (including the fees, costs, and expenses of its legal counsel, financial advisors, auditors and other consultants and advisors) in connection with the negotiation, preparation, execution, delivery, and performance of this Agreement and the other WIFIA Loan Documents and the transactions hereby and thereby contemplated, including attorneys', and engineers' fees and professional costs, including all such fees, costs, and expenses incurred as a result of or in connection with: (i) the enforcement of or attempt to enforce, or the monitoring,protection or preservation of any right or claim with respect to the Pledge or any provision of this Agreement or any of the other WIFIA Loan Documents or the rights of the WIFIA Lender thereunder; (ii) any amendment, modification, re-execution, waiver, or consent with respect to this Agreement or any other WIFIA Loan Document; and (iii) any work-out, restructuring, or similar arrangement of the obligations of the Borrower under this Agreement or the other WIFIA Loan Documents, including during the pendency of any Event of Default. (d) The obligations of the Borrower under this Section 10 shall survive the payment or prepayment in full or transfer of the WIFIA Note,the enforcement of any provision of this Agreement or the other WIFIA Loan Documents, any such amendments,waivers or consents, any Event of Default, and any such workout, restructuring, or similar arrangement. ARTICLE III ON ITIONS ' ' CE Section 11 Con 'ons Precedent. (a) Con rtions Prece. i t eness. Notwithstanding anything in this Agreement to the contrary, this Agreemennssall not become effective until each of the following conditions precedent has been satisfied or waived in writing by the WIFIA Lender in its sole discretion: (i) The Borrower shall have duly executed and delivered to the WIFIA Lender this Agreement and the WIFIA Note,each in form and substance satisfactory to the WIFIA Lender. (ii) The Borrower shall have delivered to the WIFIA Lender complete and fully executed copies of any Related Document with respect to which all or a portion of the proceeds are or will be applied to fund all or any portion of Total Project Costs, in each case that has been entered into on or prior to the Effective Date, along with a certification in the Closing Certificate that each such document is complete, fully executed and in full force and effect, and that all conditions contained in the Related Documents that are necessary to the closing of the WIFIA transaction contemplated hereby (if any) have been fulfilled. (iii) The Borrower shall have delivered to the WIFIA Lender fully executed copies of each Existing Construction Contract, together with any amendments, waivers or modifications thereto. 21 (iv) Counsel to the Borrower shall have rendered to the WIFIA Lender legal opinions satisfactory to the WIFIA Lender in its sole discretion (including those opinions set forth on Exhibit H-1 (Opinions Required from Counsel to Borrower) and bond counsel to the Borrower shall have rendered to the WIFIA Lender legal opinions satisfactory to the WIFIA Lender in its sole discretion (including those opinions set forth on Exhibit H-2 (Opinions Required from Bond Counsel)). (v) The Borrower shall have delivered to the WIFIA Lender a certificate, signed by the Borrower's Authorized Representative, substantially in the form attached hereto as Exhibit B (Form of Closing Certificate) (the "Closing Certificate"), designating the Borrower's Authorized Representative, confirming such person's position and incumbency, and certifying as to the satisfaction of the certain conditions precedent (and, if requested by the WIFIA Lender, has provided evidence satisfactory to the WIFIA Lender of such satisfaction), including the following: (A) as of the Effective Date, (1) the maximum principal amount of the WIFIA Loan(excluding any interest that is capitalized in accordance with the terms hereof), together with the amount of any other credit assistance provided under the Act to the Borrower, does not exceed forty- nine percent(49%) of reasonably anticipated Eligible Project Costs; (2)the aggregate amount of Eligible Project Costs previously incurred prior to the tive Date does not ex d fift one perc f Eligible Project Costs; and(3) the total feder ssis nce provided the Project, including the maximu ncipal amou oft 1111111111k Loa xcluding any interest that is caplltald in accordance witl: the terms h of), does not exceed eighty percent (801fotal Project Costs; (B) the Borrower is in compliance with NEPA and any applicable federal, state or local environmental review and approval requirements with respect to the Project; (C) the Borrower has (1) obtained a FEIN (as evidenced by the delivery of a copy of the Borrower's W-9), (2)obtained a UEI Number, and (3) registered with, and obtained confirmation of active SAM registration status; (D) the Borrower has obtained the WIFIA CUSIP Number; (E) the representations and warranties of the Borrower set forth in this Agreement and in each other WIFIA Loan Document to which the Borrower is a party are true and correct on and as of the date hereof, except to the extent that such representations and warranties expressly relate to an earlier date,in which case such representations and warranties were true and correct as of such earlier date; and 22 (F) no Material Adverse Effect, or any event or condition that could reasonably be expected to have a Material Adverse Effect, has occurred or arisen since the date of the Application. (vi) The Borrower shall have provided evidence to the WIFIA Lender's satisfaction, prior to the Effective Date, of the assignment by at least one (1) Nationally Recognized Rating Agency of a public Investment Grade Rating on the WIFIA Loan,along with a certification in the Closing Certificate that no such rating has been reduced, withdrawn or suspended as of the Effective Date. (vii) The Borrower shall have delivered to the WIFIA Lender the Public Benefits Report. (viii) The Borrower shall have paid in full all invoices delivered by the WIFIA Lender to the Borrower as of the Effective Date for any applicable Servicing Fees and the fees and expenses of the WIFIA Lender's counsel and financial advisors and any auditors or other consultants retained by the WIFIA Lender for the purposes hereof. (b) Conditions Precedent to Disbursements. Notwithstanding anything in this Agreement to the contrary,the WIFIA Lender shall have no obligation to make any Disbursement of the WIFIA Loan to the Borrower (including the initial Disbursement hereunder) until each of the following conditions precedent has been sati d or waived in w • ' e WIFIA Lender in its sole discretion: ii) Trr ower s ve e ivered to he WIFIA Lender a Requisitiowith ufiovision f ction 4 (Disbursement Conditions), Schedule iv i equisition Proce ures and Ex ibi D (Form of Requisition), including satisfactory Eligible Project Costs Documentation relating to such Requisition. The Borrower's Authorized Representative shall also certify in such Requisition that: (A) at the time of, and immediately after giving effect to, any Disbursement of WIFIA Loan proceeds then currently requested, (1) no Default or Event of Default and no event of default under any other Related Document has occurred and is continuing and (2) no event that, with the giving of notice or the passage of time or both,would constitute an event of default under any other Related Document, has occurred and is continuing; (B) no Material Adverse Effect, or any event or condition that could reasonably be expected to result in a Material Adverse Effect, has occurred since the Effective Date; (C) the aggregate amount of all Disbursements (including the requested Disbursement amount but excluding any interest that is capitalized in accordance with the terms hereof) does not exceed (1) the maximum principal amount of the WIFIA Loan or (2) the amount of Eligible Project Costs paid or incurred by the Borrower; 23 (D) the Eligible Project Costs for which reimbursement or payment is being requested has not been reimbursed or paid by any previous disbursement of (1) WIFIA Loan proceeds or (2) any other source of funding for the Project as identified in the Project Budget; (E) (1) the Borrower, and each of its contractors and subcontractors at all tiers with respect to the Project, has complied with all applicable laws, rules, regulations and requirements, including 40 U.S.C. §§3141-3144, 3146, and 3147 (relating to Davis-Bacon Act requirements) (and regulations relating thereto) and 33 U.S.C. §3914 (relating to American iron and steel products); and(2) supporting documentation, such as certified payroll records and certifications for all iron and steel products used for the Project, are being maintained and are available for review upon request by the WIFIA Lender; (F) the representations and warranties of the Borrower set forth in this Agreement and in each other WIFIA Loan Document are true and correct as of each date on which any disbursement of the WIFIA Loan is made, except to the extent such representations and warranties expressly relate to an earlier date (in which case, such representations and warranties are true and correct as of such earlier date); and I ( the orro presents that it ha elivered all required deliverables under and i ompliance with the requirements of Schedule V (Reporting Reg me , xcept as has been o erwise agreed by the WIFIA Lelder; a ` • (H) the amount being requested for Disbursement is with respect to Eligible Project Costs for which all or a portion of the Eligible Project Costs Documentation was previously submitted to and approved by the WIFIA Lender in accordance with Schedule IV (Requisition Procedures) and Schedule V(Reporting Requirements) of the WIFIA Loan Agreement, and/or the Borrower has set out in the Requisition(or attached separately to the Requisition) a summary of any Eligible Project Costs that have not otherwise been previously submitted to the WIFIA Lender for approval, together with supporting Eligible Project Costs Documentation. (ii) If applicable,to the extent necessary to make the representations and warranties in Section 12(f) (Litigation) and 12(j)(iii) (Compliance with Laws)true, correct and complete as of the date of the applicable Disbursement, the Borrower shall have delivered an updated Schedule III (Borrower Disclosures). (iii) The Borrower shall have paid in full (A) any outstanding Servicing Fees due and payable under Section 10 (Fees and Expenses) and(B) all invoices delivered by the WIFIA Lender to the Borrower, for the fees and expenses of the WIFIA Lender's counsel and financial advisors and any auditors or other consultants retained by the WIFIA Lender for the purposes hereof. 24 (iv) With respect to the initial Disbursement, the Borrower shall have delivered to the WIFIA Lender a complete and fully executed copy of the Intergovernmental Agreement, along with a certification in the Closing Certificate that such document is complete, fully executed and in full force and effect. (v) With respect to the initial Disbursement, the Borrower shall have demonstrated to the WIFIA Lender's satisfaction that (A) the National Historic Preservation Act Section 106 consultation process relating to the Project has concluded and(B)the Borrower has not carried out any destruction, excavation,mobilization or other ground-disturbing work prior to the conclusion of the NHPA Section 106 consultation. ARTICLE IV REPRESENTATIONS AND WARRANTIES Section 12. Representations and Warranties of Borrower. The Borrower hereby represents and warrants that, as of the Effective Date and, as to each of the representations and warranties below other than those contained in Section 12(b)(Officers'Authorization)and the first sentence of Section 12(m) (Construction Contracts), as of each date on which any Disbursement of the WIFIA Loan is requested or made: (a) Organization; Power and Authority. The Borrower • egal Entity duly organized and validly existing under its Organizational Documents and t laws of the State, has full legal right, power and auth ity to do business in the State and to enter into the WIFIA Loan Documents then in existence, t ec to and deliver this Agreement and the WIFIA Note, and to carry out and consummate al ansac n ,contemplated hereby and itereby and has duly authorized the execution, delive and per ormance ofthis Agreement, the WIFIA Note, and the other WIFIA Loan Documents. Other than such Organizational Documents, there are no additional instruments or documents necessary for the Borrower to execute and deliver, or to perform its obligations under, the WIFIA Loan Documents to which it is a party and to consummate and implement the transactions contemplated by the WIFIA Loan Documents. (b) Officers' Authorization. As of the Effective Date, the officers of the Borrower executing (or that previously executed) the WIFIA Loan Documents, and any certifications or instruments related thereto, to which the Borrower is a party are (or were at the time of such execution) duly and properly in office and fully authorized to execute the same. (c) Due Execution; Enforceability. Each of the WIFIA Loan Documents in effect as of any date on which this representation and warranty is made, and to which the Borrower is a party, has been duly authorized, executed and delivered by the Borrower and constitutes the legal, valid and binding agreement of the Borrower enforceable against the Borrower in accordance with its terms, except as such enforceability (i) may be limited by applicable bankruptcy,insolvency,reorganization,moratorium or similar laws affecting the rights of creditors generally and(ii) is subject to general principles of equity(regardless of whether enforceability is considered in equity or at law). (d) Non-Contravention. The execution and delivery of the WIFIA Loan Documents to which the Borrower is a party, the consummation of the transactions contemplated 25 by the WIFIA Loan Documents,and the fulfillment of or compliance with the terms and conditions of all of the WIFIA Loan Documents, do not and will not (i) conflict with the Borrower's Organizational Documents, (ii) conflict in any material respect with, or constitute a violation, breach or default (whether immediately or after notice or the passage of time or both) by the Borrower of or under, any applicable law, administrative rule or regulation, any applicable court or administrative decree or order, or any indenture,mortgage, deed of trust, loan agreement, lease, contract or other agreement or instrument to which the Borrower is a party or by which it or its properties or assets are otherwise subject or bound, or (iii) result in the creation or imposition of any Lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower, other than Permitted Liens. (e) Consents and Approvals. All Governmental Approvals required as of the Effective Date and required as of any subsequent date on which this representation is made (or deemed made) for the undertaking, construction and completion by the Borrower of the Project and the operation and maintenance of the System, and to execute and deliver and perform its obligations under the WIFIA Loan Documents and the Construction Contracts,have been obtained or effected and are in full force and effect. The Borrower is not in default with respect to any Governmental Approval, which default could reasonably be expected to result in a Material Adverse Effect. No consent or approval of any trustee,holder of any indebtedness of the Borrower or any other Person is necessary in connection with the execution, delivery, and performance by the Borrower of the WIFIA Loan Documents and the consummation of any transaction contemplated ther 'except as hen ob ned or ade and a . - . force and effect. (f) li Litigation. Except as t forth i 11MB of S 1 edule III (Borrower Disclosures),there is no action, suit,proceeding or,to t e owledge of th :orrower, any inquiry or investigation, in any case befgre or by ancourt or Government. •uthority pending or, to the knowledge of the Borrower, threatened against or affecting the System, the Project or the ability of the Borrower to execute, deliver and perform its obligations under the WIFIA Loan Documents or that in any case could reasonably be expected to result in a Material Adverse Effect. (g) Security Interests. (i) This Agreement and the Organizational Documents together establish, and(ii) the Borrower has taken all necessary action to grant, the Pledge for the benefit of the WIFIA Lender, the legal, valid, binding and enforceable Pledge purported to be created and granted pursuant to this Agreement, irrespective of whether any Person has notice of the Pledge and without the need for any physical delivery, recordation, filing, or further act (and if applicable, the Pledge has been duly perfected under applicable State law). The Pledge is legal, valid,binding and enforceable(irrespective of whether any Person has notice and without the need for any physical delivery, recordation, filing or further act) and is in full force and effect and is pari passu with, and not subordinate or junior to, any other Liens in respect of the Pledged Revenues. The Borrower is not in breach of any covenant set forth in Section 14(b) (Securing Liens). As of the Effective Date and as of each other date this representation and warranty is made, (A) all documents and instruments have been recorded or filed for record in such manner and in such places as are required and all other action as is necessary or desirable has been taken to establish the Pledge for the benefit of the WIFIA Lender, and(B) all taxes and filing fees that are due and payable in connection with the execution, delivery or recordation of any WIFIA Loan Documents or any instruments, certificates or financing statements in connection with the foregoing, have been paid. Neither the attachment, validity, enforceability, priority or, if 26 applicable, perfection, of the Pledge or the Lien in the Pledged Revenues granted pursuant to this Agreement is governed by Article 9 of the UCC. (h) No Debarment. The Borrower has fully complied with its verification obligations under 2 C.F.R. § 180.320 and confirms, based on such verification, that, to its knowledge, neither the Borrower nor any of its principals (as defined in 2 C.F.R. § 180.995 and supplemented by 2 C.F.R § 1532.995) (i) is debarred, suspended or voluntarily excluded from participation in Federal Government contracts, procurement or non-procurement matters, (ii) is presently indicted for or otherwise criminally or civilly charged by a Governmental Authority with commission of any of the offenses listed in 2 C.F.R. Part 180 or 2 C.F.R. Part 1532; or (iii) has, within the three (3)year period preceding the Effective Date, (x)been convicted for or had a civil judgment rendered against the Borrower for any of the offenses within such period or(y) had any public transactions (federal, state or local) terminated for cause or default. (i) No Lobbying. Pursuant to 31 U.S.C. §1352 and 40 C.F.R. §34.100, to the Borrower's knowledge, (i) no Federal appropriated funds have been paid or will be paid,by or on behalf of the Borrower, to any Person for influencing or attempting to influence an officer or employee of an agency, a member (or employee of a member), officer, or employee of the U.S. Congress, in connection with the making of the WIFIA Loan, execution (including amendments or modifications) of any WIFIA Loan Documents, or any other federal action under 31 U.S.C. §1352(a)(2); and(ii) if any funds other than Federal appropriated funds have been paid or will be paid to any Personlfor i cing or attempting toftfluence an o1 ee of any agency, a member (or employee o a member), officer, or employee of the U.S. ngress in connection with the WIFIA Loan, the Borrower has completed and submitted to the WIFIA Lender Standard Form-LLL, "Disclosure Fo to Report Lobbying," in accordance with its instructions. ILI II (j) Compliance with Laws. (i) The Borrower, and to the best of its knowledge, each of its contractors and subcontractors at all tiers with respect to the Project, has complied with all applicable laws, rules, regulations and requirements, including 40 U.S.C. §§3141-3144, 3146, and 3147 (relating to Davis-Bacon Act requirements) (and regulations relating thereto),33 U.S.C. §3914(relating to American iron and steel products),2 C.F.R. §180.320 and 20 C.F.R. Part1532 (relating to non-debarment), 31 U.S.C. §1352 and 40 C.F.R. §34.100 (relating to non-lobbying), and any applicable Sanctions Laws. (ii) To ensure such compliance, the Borrower has included in all contracts with respect to the Project (A) the contract clauses relating to applicable federal requirements (such as Davis-Bacon) and (B) requirements that its contractors (1) shall comply with all applicable laws, rules, regulations, and requirements set forth in this Section 12(j)and follow applicable federal guidance and(2)incorporate in all subcontracts (and cause all subcontractors to include in lower tier subcontracts) such terms and conditions as are required to be incorporated therein by any applicable laws, rules, regulations and requirements set forth in this Section 12(j). 27 (iii) Except as set forth in Part C of Schedule III (Borrower Disclosures), the Borrower is in compliance with all laws applicable to the System (including the Project)relating to environmental, health or safety matters. (k) Credit Ratings. The WIFIA Loan has received a public Investment Grade Rating from at least one(1)Nationally Recognized Rating Agency,written evidence of such rating has been provided to the WIFIA Lender prior to the Effective Date, and such rating has not been reduced, withdrawn or suspended as of the Effective Date. (1) No Defaults. No Default or Event of Default, and no default or event of default by the Borrower under any other Related Document, has occurred and is continuing. (m) Construction Contracts. Part C of Schedule II (Project Details) sets forth a list of the Existing Construction Contracts as of the Effective Date. With respect to each Construction Contract executed as of any date on which this representation and warranty is made, such Construction Contract is in full force and effect. (n) Information. The information furnished by, or on behalf of, the Borrower to the WIFIA Lender,when taken as a whole,is true and correct in all material respects(other than for projections and other forward-looking statements contained in the Base Case Financial Model which have been made in good faith and based on reasonable assumptions) and does not contain any untrue statement of a ate l.- - - • omit tate a , - - ••1 fact necessary to make the statements contained then, in light o he c. stan• under which they were made, not misleading as of the date m. •e • us'- •. (o) • .nc- The : •o r is in I iance with a insurance obligations required under eac onstruc ion Con ac and the v7 IFIA Loan ocuments (including Section 14(e)(Insurance)hereof)as of the date on which this representation and warranty is made. To the extent the Borrower self-insures, the Borrower's self-insurance program is actuarially sound. (p) No Prohibited Liens. Except for Permitted Liens, the Borrower has not created, and is not under any obligation to create, and has not entered into any transaction or agreement that would result in the imposition of, any Lien on the Pledged Revenues, the System, the Project or the Borrower's respective rights in any of the foregoing. (q) Financial Statements. Each income statement,balance sheet and statement of operations and cash flows (collectively, "Financial Statements") delivered to the WIFIA Lender pursuant to Part B of Schedule V (Reporting Requirements) has been prepared in accordance with GAAP and presents fairly, in all material respects, the financial condition (including any liabilities or obligations that are required to be disclosed in accordance with GAAP) of the Borrower as of the respective dates of the balance sheets included therein and the results of operations of the Borrower for the respective periods covered by the statements of income included therein. (r) Securities Laws. Under existing law, the WIFIA Note may be issued and sold without registration under the Securities Act of 1933, as amended, and any State blue sky laws. 28 (s) No Delinquent Taxes or Federal Debt. The Borrower has paid all applicable taxes and other material taxes and assessments payable by it that have become due (other than those taxes or assessments that it is contesting in good faith and by appropriate proceedings, for which adequate reserves have been established to the extent required by GAAP). The Borrower has no delinquent federal debt (including tax liabilities but excluding any delinquencies that have been resolved with the appropriate federal agency in accordance with the standards of the Debt Collection Improvement Act of 1996). (t) Sufficient Funds. The amount of the WIFIA Loan,when combined with all other funds committed for the development and construction of the Project as set forth under the various sources of funds in the Project Budget, will be sufficient to carry out the Project, pay all Total Project Costs anticipated for the development and construction of the Project and achieve Substantial Completion by the Projected Substantial Completion Date. The total federal assistance provided to the Project, including the maximum principal amount of the WIFIA Loan (excluding any interest that is capitalized in accordance with the terms hereof), does not exceed eighty percent (80%) of Total Project Costs. The Borrower has developed, and identified adequate revenues to implement, a plan for operating, maintaining, and repairing the Project over the useful life of the Project. (u) Sovereign Immunity. The Borrower either has no immunity from the jurisdiction of any court of competent jurisdiction or from any legal process therein which could be asserted in any fiction to enforce the obligatio _ f the Borrower under any of the WIFIA Loan Documents to which it is a party or the transactions intemplated hereby or thereby, including the obligations of the Borrower hereunder and ther nds or, to thent that the Borrower has such immunity, the Borrower waived such . uant to Section 14(1) (Immunity). IMO (v) Accuracy of Representations and Warranties. The representations, warranties and certifications of the Borrower set forth in this Agreement and the other WIFIA Loan Documents are true, correct, and complete, except to the extent such representations and warranties expressly relate to an earlier date (in which case, such representations and warranties shall be true, correct, and complete as of such earlier date). Section 13. Representations and Warranties of WIFIA Lender. The WIFIA Lender represents and warrants that: (a) Power and Authority. The WIFIA Lender has all requisite power and authority to make the WIFIA Loan and to perform all transactions contemplated by the WIFIA Loan Documents to which it is a party. (b) Due Execution; Enforceability. The WIFIA Loan Documents to which it is a party have been duly authorized, executed and delivered by the WIFIA Lender, and are legally valid and binding agreements of the WIFIA Lender, enforceable in accordance with their terms. (c) Officers' Authorization. The officers of the WIFIA Lender executing each of the WIFIA Loan Documents to which the WIFIA Lender is a party are duly and properly in office and fully authorized to execute the same on behalf of the WIFIA Lender. 29 ARTICLE V COVENANTS Section 14. Affirmative Covenants. The Borrower covenants and agrees as follows until the date the WIFIA Note and all of the obligations of the Borrower under this Agreement (other than contingent indemnity obligations) are irrevocably paid in full in immediately available funds and the WIFIA Lender no longer has any commitment to make Disbursements to the Borrower,unless the WIFIA Lender waives compliance in writing: (a) Collection of Sufficient Revenues; Levy of Tax. The Borrower covenants to use all taxing power available to the Borrower, including levying and collecting taxes upon all taxable property within the corporate limits of the Borrower, in addition to all other taxes authorized by law, in order to generate funds sufficient to permit the Borrower to make all payments of debt service in respect of the WIFIA Loan, subject to Article XI of the Oregon Constitution and any other limitations imposed by applicable law. (b) Securing Liens. The Borrower shall at any and all times, to the extent permitted by law, pass, make, do, execute, acknowledge and deliver, all and every such further resolutions, acts, deeds, conveyances, assignments, transfers and assurances as may be necessary or desirable in connection with assuring the ongoing validity and enforceability of the Pledge. The Borrower shall at all times maintain the Pledged Revenues free and clear of an Lien, other than Permitted Liens, and ani . • . , -gulat, or othR11,11.1an the part of the Borrower to that end shall M dul and v •ly t - t all times. The Bo ower shall at all times, to the extent permitted by law, a sreser • . • erotect the Pledge ranted pursuant to the WIFIA Loan Documents and for the -ne' o t WIFIA Lender der the WIFIA Loan Documents against ans and deman. 11 Perso . whomsoever, su ject to Permitted Liens. (c) Use of Proceeds. The Borrower shall use the proceeds of the WIFIA Loan solely for purposes permitted by applicable law, this Agreement and the other WIFIA Loan Documents. (d) Prosecution of Work; Verification Requirements. (i) The Borrower shall diligently prosecute the work relating to the Project and complete the Project in accordance with the Construction Schedule (and on or prior to the Development Default Date), the Governmental Approvals in connection with the Project, and prudent utility and industry practice. (ii) The Borrower shall comply with Subpart C of 2 C.F.R. Part 180, as supplemented by Subpart C of 2 C.F.R. Part 1532 (relating to debarment), including the verification requirements set forth in 2 C.F.R. §§ 180.300 and 180.320, and shall include in its contracts with respect to the Project similar terms or requirements for compliance. (e) Operations and Maintenance. The Borrower shall operate and maintain the System (including the Project) substantially in accordance with its operations and maintenance plan (that incorporates the Project). The Borrower shall operate and maintain the System (including the Project) in a reasonable and prudent manner and in good repair, working order and 30 condition and in accordance with the requirements of all applicable laws and each applicable WIFIA Loan Document. The Borrower shall at all times do or cause to be done all things necessary to obtain, preserve, renew, extend and keep in full force and effect the Governmental Approvals and any other rights, licenses, franchises, and authorizations material to the conduct of its business and the operation and maintenance of the System. (f) Insurance. (i) The Borrower shall at all times procure and maintain or cause to be maintained insurance on the System and the construction of the Project, with responsible insurers, or as part of a reasonable system of self-insurance that is actuarially sound and adequately funded, in such amounts and against such risks (including damage to or destruction of the System) as are customarily maintained with respect to works and properties of like character against accident to, loss of, or damage to such works or properties, including insurance against public liability, property damage, workers' compensation, and builders' risk, casualty and liability, as appropriate, and otherwise in accordance with the Construction Contracts. The insurance policies shall be available at all reasonable times for inspection upon request by the WIFIA Lender, its agents and representatives. (ii) The Borrower shall cause all liability insurance policies that it maintains (excluding property damage, aNiobile workers' compensation insurance), to reflect th WIFIA Lender as an additiosure o the extent of its insurable interest. (g) Maintain Legal Structure. The Borr wer shall maintain its existence as a Legal Entity orga xisting under its Organizaanal Documents and the laws of the State. (h) Borrower Accounts. The Borrower shall maintain the Borrower Accounts in accordance with the terms hereof and the Related Documents. All System Revenues received shall be deposited into the Sewer Fund and all Pledged Revenues received shall be deposited into the General Fund. The Borrower shall not apply any portion of the Pledged Revenues in contravention of this Agreement or the Related Documents. (i) Compliance with Laws. (i) The Borrower shall, and shall require its contractors and subcontractors at all tiers with respect to the Project to, comply with all applicable laws, rules, regulations and requirements, including 40 U.S.C. §§3141-3144, 3146, and 3147 (relating to Davis-Bacon Act requirements) (and regulations relating thereto), 33 U.S.C. §3914 (relating to American iron and steel products), 20 C.F.R. § 180.320 and 20 C.F.R. §1532 (relating to non-debarment), 31 U.S.C. §1352 (relating to non-lobbying), and any applicable Sanctions Laws. (ii) To ensure such compliance, the Borrower shall include in all contracts with respect to the Project (A) the contract clauses relating to applicable federal requirements (such as Davis-Bacon) and (B) requirements that its contractors (1) shall comply with all applicable laws, rules, regulations, and requirements set forth in this Section 14(i)and follow applicable federal guidance and(2)incorporate in all subcontracts 31 (and cause all subcontractors to include in lower tier subcontracts) such terms and conditions as are required to be incorporated therein by any applicable laws, rules, regulations and requirements set forth in this Section 14(i). (j) Material Obligations. The Borrower shall pay its material obligations payable from the Pledged Revenues or System Revenues promptly and in accordance with their terms and pay and discharge promptly all taxes, assessments and governmental charges or levies imposed upon it or upon the Pledged Revenues, the System Revenues or the assets of the System, before the same shall become delinquent or in default, as well as all lawful and material claims for labor, materials and supplies or other claims which, if unpaid, might give rise to a Lien upon the System or any part thereof or on the System Revenues or the Pledged Revenues; provided, however, that such payment and discharge shall not be required with respect to any such tax, assessment,charge, levy, claim or Lien so long as the validity or amount thereof shall be contested by the Borrower in good faith by appropriate proceedings and so long as the Borrower shall have set aside adequate reserves with respect thereto in accordance with and to the extent required by GAAP, applied on a consistent basis. (k) SAM Registration and UEI Number. The Borrower shall obtain and maintain,on or prior to the Effective Date through(i)the Final Disbursement Date,an active SAM registration status and(ii) the Final Maturity Date, a UEI Number. (1) Events of'Loss; Laks Proc . If an Event of Loss shall occur with respect to the System (including the Project) or any pa eof, the Borrower s 1 (i) diligently pursue all of its rights to compensation against all elevant insurersreinsu s and Governmental Authorities, as applicable, in respect of such nt of Loss and (ii) apply 1 Loss Proceeds (after excluding any proceeds of delft-in-stalk nsuran4 all proceeds covering liability of the Borrower to third parties) in respect of such Event of Loss in to repair, reconstruct, and/or replace the portion of the System in respect of which the applicable Loss Proceeds were received. The Borrower shall begin such repair, reconstruction or replacement promptly after such damage or destruction shall occur, and shall continue and properly complete such repair, reconstruction or replacement as expeditiously as possible, and shall pay out of such Loss Proceeds (after excluding any proceeds of delay-in-start-up insurance and proceeds covering liability of the Borrower to third parties) all costs and expenses in connection with such repair, reconstruction or replacement so that the same shall be completed and the System shall be free and clear of all claims and Liens. (m) Immunity. To the fullest extent permitted by applicable law, the Borrower agrees that it will not assert any immunity (and hereby waives any such immunity) it may have as a governmental entity from lawsuits, other actions and claims, and any judgments with respect to the enforcement of any of the obligations of the Borrower under this Agreement or any other WIFIA Loan Document. (n) Accounting and Audit Procedures. (i) The Borrower shall establish fiscal controls and accounting procedures sufficient to assure proper accounting for all (A) Pledged Revenues, System Revenues, operating expenses, capital expenses, depreciation, reserves, debt issued and outstanding and debt payments and (B) Project-related costs, Requisitions submitted, 32 WIFIA Loan proceeds received, payments made by the Borrower with respect to the Project, and other sources of funding for the Project (including amounts paid from such sources for Project costs so that audits may be performed to ensure compliance with and enforcement of this Agreement). The Borrower shall use accounting, audit and fiscal procedures conforming to GAAP, including, with respect to the WIFIA Loan, accounting of principal and interest payments, disbursements,prepayments and calculation of interest and principal amounts Outstanding. (ii) The Borrower shall have a single or program-specific audit conducted in accordance with 2 C.F.R. Part 200 Subpart F and 31 U.S.C. § 7502 from(and including) the first Borrower Fiscal Year in which a Disbursement is made under this Agreement and annually thereafter to the extent required by applicable law, except in all cases to the extent biennial audits are permitted for the Borrower pursuant to 2 C.F.R. § 200.504 and 31 U.S.C. § 7502(b). Upon reasonable notice, the Borrower shall cooperate fully in the conduct of any periodic or compliance audits conducted by the WIFIA Lender, or designees thereof, pursuant to 40 C.F.R. Part 35, 31 U.S.C. § 7503(b), or 31 U.S.C. § 6503(h) and shall provide full access to any books, documents, papers or other records that are pertinent to the Project or the WIFIA Loan, to the WIFIA Lender, or the designee thereof, for any such project or programmatic audit. (o) Access; Records. (i) S ong as the W Loa or any portio thereof shall remain outstandin nd until five (5) years afte IFI all ha been paid in full, the WIFIA Le er shal have the right, u! , --. i ab prior notice, to visit, monitor and/or inspect an • of ti Project a► its op- tion , to examine books of account and records of the Borrower relating to the Project or to the WIFIA Loan Documents, to make copies and extracts therefrom at the Borrower's expense, and to discuss the Borrower's affairs, finances and accounts relating to the Project with, and to be advised as to the same by,its officers and employees and its independent public accountants(and by this provision the Borrower irrevocably authorizes its independent public accountants to discuss with the WIFIA Lender the affairs, finances and accounts of the Borrower, whether or not any representative of the Borrower is present,it being understood that nothing contained in this Section 14(o) is intended to confer any right to exclude any such representative from such discussions), all at such reasonable times and intervals as the WIFIA Lender may request. The Borrower agrees to pay all out-of-pocket expenses incurred by the WIFIA Lender in connection with the WIFIA Lender's exercise of its rights under this Section 14(n) at any time when an Event of Default shall have occurred and be continuing. (ii) The Borrower shall maintain and retain all pertinent files relating to the Project and the WIFIA Loan, as may be necessary for the WIFIA Lender to facilitate an effective and accurate audit and performance evaluation of the Project and the WIFIA Loan,until five (5)years after the later of the date on which(A) all rights and duties under this Agreement and under the WIFIA Note (including payments) have been fulfilled and any required audits have been performed and (B) any litigation relating to the Project, the WIFIA Loan or this Agreement is finally resolved or, if the WIFIA Lender has reasonable cause to extend such date, a date to be mutually agreed upon by the WIFIA Lender and the 33 Borrower. The Borrower shall provide to the WIFIA Lender in a timely manner all records and documentation relating to the Project that the WIFIA Lender may reasonably request from time to time. Section 15. Negative Covenants. The Borrower covenants and agrees as follows until the date the WIFIA Note and all of the Obligations of the Borrower under this Agreement (other than contingent indemnity obligations) are irrevocably paid in full in immediately available funds and the WIFIA Lender no longer has any commitment to make Disbursements to the Borrower, unless the WIFIA Lender waives compliance in writing: (a) Indebtedness. The Borrower may not create, incur or suffer to exist any indebtedness of any kind payable from, secured or supported by the Pledged Revenues (i) the payments with respect to which are senior or prior in right of payment by the Borrower of the WIFIA Loan, or(ii) secured by a pledge on the Pledged Revenues that is senior to the Lien on the Pledged Revenues in favor of the WIFIA Lender, all or a portion of the proceeds of which are or will be applied at any time to fund all or any portion of Total Project Costs, that are secured by any assets or property of the Borrower other than the Pledged Revenues. The Borrower shall not incur any indebtedness of any kind payable from, secured or supported by a pledge of the Pledged Revenues,including Permitted Debt,without the prior written consent of the WIFIA Lender,while an Event of Default relating to a Payment Default or a Bankruptcy Related Event has occurred and is continuing. -AN (b) No n inguishment or Adverse endments. e Borrower shall not, and shall not permit any P o o, without the prior wri ent o e WIFIA Lender, (i) extinguish or impair the ed , the Pledged Revenlies he System venues or any other dedicated source of r nt of the WIFIA Loan or alp r Obligation the proceeds of which are applied to fund Total Project Costs), (ii) amend, modify, replace or supplement any Related Document or permit a waiver of any provision thereof in a manner that could adversely affect the WIFIA Lender or could reasonably be expected to result in a Material Adverse Effect, or (iii)terminate, assign or replace any Related Document in a manner that could adversely affect the WIFIA Lender or could reasonably be expected to have a Material Adverse Effect. (c) No Prohibited Liens. Except for Permitted Liens, the Borrower shall not create, incur, assume or permit to exist any Lien on the Project or the Pledged Revenues or the Borrower's respective rights in any of the foregoing and the Pledged Revenues will be free and clear of any Lien that is senior to the Pledge. (d) Restricted Payments and Transfers. The Borrower shall not permit System Revenues or other assets of the System, or any funds in respect of the System held by or on behalf of the Borrower,to be paid or transferred or otherwise applied for purposes other than ownership, operation or maintenance of such system or as otherwise permitted in the WIFIA Loan Agreement and applicable laws of the State. (e) No Prohibited Sale,Lease or Assignment. The Borrower shall not sell,lease or assign its rights in and to the System or a substantial portion of the assets included in the System, unless such sale, lease or assignment (i) could not reasonably be expected to have a Material Adverse Effect and(ii) is made by the Borrower in the ordinary course of business. 34 (f) Mergers and Acquisitions. The Borrower shall not, and shall not agree to, reorganize, consolidate with or merge into another Person unless (i) such reorganization, merger or consolidation is with or into another entity established by State law and such reorganization, merger or consolidation is permitted by State law, and in each case, does not adversely affect or impair to any extent or in any manner(A)the System, (B)the Pledge or the Pledged Revenues, or (C) the availability of Pledged Revenues for the payment and security of the obligations of the Borrower under this Agreement; and (ii) the Borrower provides to the WIFIA Lender notice of such reorganization,consolidation or merger in accordance with Part E of Schedule V(Reporting Requirements) and such other information concerning such reorganization, consolidation or merger as shall have been reasonably requested by the WIFIA Lender. (g) Hedging. Other than interest rate hedging transactions permitted under applicable law, the Borrower shall not enter into any swap or hedging transaction, including any such transaction that is speculative or creates extraordinary leverage or risk, without the prior written consent of the WIFIA Lender. (h) No Ground Disturbing Work. The Borrower shall not in respect to the Project perform any destruction, excavation, or other ground-disturbing work (including (A) construction,reconstruction,rehabilitation and replacement activities; (B)modifying,removing or demolishing structures; and (C) changing the visual, atmospheric, audible or land use characteristics of an area),until the Borrower has demonstrated to the WIFIA Lender's satisfaction that the National tonic Prese Sectio 06 co II6cess relating to the Project has concluded. 4 Section 16. Reporting Requirements. The Borro er agrees to amply with each of the reporting requirements set out ir1 Schedule V (Reporting Re uirements), bless otherwise agreed or waived by the WIFIA Lender in writing. ARTICLE VI EVENTS OF DEFAULT AND REMEDIES Section 17. Events of Default and Remedies. (a) An "Event of Default" shall exist under this Agreement if any of the following occurs; provided, that the occurrence of an event set forth in sub-clauses (v) through (and including) (ix)below shall not constitute an Event of Default under this Agreement until the WIFIA Lender has provided a notice of such Event of Default to the Borrower; provided, further, that nothing in this paragraph is intended to limit any obligation of the Borrower hereunder, including any obligation to cure any event or condition contemplated under this Section 17(a): (i) Payment Default. The Borrower shall fail to pay when due any part of the principal amount of or interest on the WIFIA Loan (including WIFIA Debt Service required to have been paid pursuant to the provisions of Section 8 (Repayment)), and such failure continues for a period of five (5) days, when and as the payment thereof shall be required under this Agreement or the WIFIA Note or on the Final Maturity Date(each such failure, a"Payment Default"). 35 (ii) Occurrence of a Bankruptcy Related Event. A Bankruptcy Related Event shall occur with respect to the Borrower. (iii) Acceleration of Obligations. Any acceleration shall occur of the maturity of any Obligation, or any such Obligation shall not be paid in full upon the final maturity thereof. (iv) Invalidity of WIFIA Loan Documents. (A) Any WIFIA Loan Document ceases to be in full force and effect (other than as a result of the termination thereof in accordance with its terms) or becomes void, voidable, illegal or unenforceable, or the Borrower contests in any manner the validity or enforceability of any WIFIA Loan Document to which it is a party or denies it has any further liability under any WIFIA Loan Document to which it is a party, or purports to revoke, terminate or rescind any WIFIA Loan Document to which it is a party; or(B)any event occurs that results in the impairment in the validity, enforceability, perfection or priority of the Pledge. (v) Covenant Default. The Borrower shall fail to observe or perform any covenant, agreement or obligation of the Borrower under this Agreement, the WIFIA Note or any other WIFIA Loan Document (other than in the case of any Payment Default or any Development Default), and such failure shall not be cured within thirty (30) days after the earlier to occur of(A)receipt by the Borrower from the WIFIA Lender of written notice thereof) the Borrower's kn edge of such failure; provided, that if such failure is capable o cure but ca t rea ly be red within such thirty (30) day cure period, then such thirty (30) day re period all e ed by up to one hundred fifty (150) additional da if and s ong as ( 'thi such thirty ( day cure period the Borrower shall co ence actin s reasonabl e ned to cure ch failure and shall diligently pursue such actions until such failure is cured and(y)such failure is cured within one hundred eighty(180)days of the date specified in either(A)or(B)above,as applicable. (vi) Misrepresentation Default. Any of the representations, warranties or certifications of the Borrower made in or delivered pursuant to the WIFIA Loan Documents(or in any certificates delivered by the Borrower in connection with the WIFIA Loan Documents)shall prove to have been false or misleading in any material respect when made or deemed made;provided,that no Event of Default shall be deemed to have occurred under this Section 17(a)(vi) if and so long as (A) such misrepresentation is not intentional, (B) such misrepresentation is not a misrepresentation in respect of Section 12(g) (Security Interests), Section 12(h) (No Debarment), Section 12(i) (No Lobbying), or Section 12(j) (Compliance with Laws), (C) in the reasonable determination of the WIFIA Lender, such misrepresentation has not had,and would not reasonably be expected to result in,a Material Adverse Effect, (D) in the reasonable determination of the WIFIA Lender, the underlying issue giving rise to the misrepresentation is capable of being cured and(E) the underlying issue giving rise to the misrepresentation is cured by the Borrower within thirty (30) days after the date on which the Borrower first became aware (or reasonably should have become aware) of such misrepresentation. (vii) Enforcement of Other Financing Documents. The holder(s) of Obligations under an Other Financing Document exercises remedies permitted thereunder 36 for an event of default that has occurred and is continuing (and has not been cured or waived by the expiration of any applicable grace period), in respect of the performance of any covenant, agreement or obligation of the Borrower under such Other Financing Document. (viii) Material Adverse Judgment. Any final, non-appealable judgment related to the Pledge or the Pledged Revenues that results in the impairment of(A) the Borrower's ability to comply with any of its payment obligations under the WIFIA Note or this Agreement or(B)the existence, validity,priority or perfection(if applicable) of the Pledge. (ix) Development Default. A Development Default shall occur. (b) Upon the occurrence of any Bankruptcy Related Event, all obligations of the WIFIA Lender hereunder with respect to the Disbursement of any undisbursed amounts of the WIFIA Loan shall automatically be deemed terminated. (c) Upon the occurrence of any Event of Default,the WIFIA Lender,by written notice to the Borrower, may exercise any or all of the following remedies: (i) the WIFIA Lender may suspend or terminate all of its obligations hereunder ith respect to the Disbursem t of any undisbursed amounts of the WIFIA Loan; ii) the Len as ermi mg int st on the WIFIA Loan to be capit zed ' plicable); (iii) the WIFIA Lender may apply the Default Rate provisions of Section 6 (Interest Rate); (iv) the WIFIA Lender may suspend or debar the Borrower from further participation in any Federal Government program administered by the WIFIA Lender and notify other departments and agencies of such default; (v) the WIFIA Lender shall be entitled and empowered to institute any actions or proceedings at law or in equity for the collection of any sums due and unpaid hereunder or under the WIFIA Note or the other WIFIA Loan Documents, and may prosecute any such judgment or final decree against the Borrower and collect in the manner provided by law out of the property of the Borrower the moneys adjudged or decreed to be payable, and the WIFIA Lender shall have all of the rights and remedies of a creditor, including all rights and remedies of a secured creditor under the Uniform Commercial Code (if applicable), and may take such other actions at law or in equity as may appear necessary or desirable to collect all amounts payable by the Borrower under this Agreement, the WIFIA Note or the other WIFIA Loan Documents then due and thereafter to become due, or to enforce performance and observance of any obligation, agreement or covenant of the Borrower under this Agreement, the WIFIA Note or the other WIFIA Loan Documents; and 37 (vi) if a right of acceleration is or has been granted for the benefit of any holder of Obligations and such Obligations have been accelerated,then the WIFIA Lender shall have the right to declare the unpaid principal amount of the WIFIA Note to be, and the same shall thereupon forthwith become, immediately due and payable, together with the interest accrued thereon and all fees, costs, expenses, indemnities and other amounts payable under this Agreement, the WIFIA Note or the other WIFIA Loan Documents, all without presentment, demand, notice, declaration, protest or other requirements of any kind, all of which are hereby expressly waived. (d) No action taken pursuant to this Section 17 shall relieve the Borrower from its obligations pursuant to this Agreement,the WIFIA Note or the other WIFIA Loan Documents, all of which shall survive any such action. ARTICLE VII MISCELLANEOUS Section 18. Disclaimer of Warranty. The WIFIA Lender makes no warranty or representation, either express or implied, as to the value, design, condition, merchantability or fitness for a particular purpose or fitness for use of the Project or any portion thereof or any other warranty with respect thereto. In no event shall the WIFIA Lender be liable for any incidental, indirect, special or co enti 1 damages incial to o arising out of this Agreement or the System(including e Proj )o the existence, shing, nctioning or use of the Project or any item or products o ervices o ided for in this Agreemen Section 19 No Personal Reco e. o offi , ployee or ag of the WIFIA Lender or the Borrower or any Person executing is Agreemen or any of t e other WIFIA Loan Documents shall be personally liable on this Agreement or such other WIFIA Loan Documents by reason of the issuance, delivery or execution hereof or thereof Section 20. No Third-Party Rights. The parties hereby agree that this Agreement creates no third-party rights against the Borrower,the Federal Government, or the WIFIA Lender, solely by virtue of the WIFIA Loan, and that no third-party creditor of the Borrower shall have any right against the WIFIA Lender with respect to the WIFIA Loan made pursuant to this Agreement. Section 21. Borrower's Authorized Representative. The Borrower shall at all times have appointed a Borrower's Authorized Representative by designating such Person or Persons from time to time to act on the Borrower's behalf pursuant to a written certificate furnished to the WIFIA Lender and the Servicer, if any, containing the specimen signature or signatures of such Person or Persons and signed by the Borrower. Section 22. WIFIA Lender's Authorized Representative. The WIFIA Lender hereby appoints the Director of the WIFIA Program,whose notice details are set forth below in Section 31 (Notices), to serve as the WIFIA Lender's Authorized Representative under this Agreement until such time as a successor or successors shall have been appointed. Thereafter, the successor in office shall serve as the WIFIA Lender's Authorized Representative. The WIFIA Lender shall provide notice to the Borrower within a reasonable time period following the succession. 38 Section 23. Servicer. The WIFIA Lender may from time to time designate another entity or entities to perform, or assist the WIFIA Lender in performing, the duties of the Servicer or specified duties of the WIFIA Lender under this Agreement and the WIFIA Note. The WIFIA Lender shall give the Borrower written notice of the appointment of any successor or additional Servicer and shall enumerate the duties or any change in duties to be performed by any Servicer. Any references in this Agreement to the WIFIA Lender shall be deemed to be a reference to the Servicer with respect to any duties which the WIFIA Lender shall have delegated to such Servicer. The WIFIA Lender may at any time assume the duties of any Servicer under this Agreement and the WIFIA Note. The Borrower shall cooperate and respond to any reasonable request of the Servicer for information, documentation or other items reasonably necessary for the performance by the Servicer of its duties hereunder. Section 24. Amendments, Waivers and Termination. No amendment, modification, termination, or waiver of any provision of this Agreement or the WIFIA Note shall in any event be effective without the prior written consent of each of the parties hereto. Notwithstanding the foregoing sentence, if the first Disbursement of the WIFIA Loan has not occurred on or prior to the Final Disbursement Date, the WIFIA Lender or the Borrower may terminate this Agreement upon no less than ten(10)Business Days' prior written notice to the other party. Once terminated, this Agreement may not be reinstated. Section 25. Governing Law. This Agreement shall be governed by the federal laws of the United States a if and to tlxtent h federal laws are applicable and the internal laws of the State, nd to extent suc eder s are not applicable. Section 26 Seve bilit . In case a 'on or obligatio nder this Agreement shall be invalid, or ynenforceabl in an 'u diction, the Balidity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. Section 27. Successors and Assigns. This Agreement shall be binding upon the parties hereto and their respective permitted successors and assigns and shall inure to the benefit of the parties hereto and their permitted successors and assigns. Neither the Borrower's rights or obligations hereunder or under the WIFIA Note nor any interest herein or therein may be assigned or delegated by the Borrower without the prior written consent of the WIFIA Lender. Section 28. Remedies Not Exclusive. No remedy conferred herein or in the WIFIA Note or reserved to the WIFIA Lender is intended to be exclusive of any other available remedy or remedies,but each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or under the WIFIA Note or now or hereafter existing at law or in equity or by statute. Section 29. Delay or Omission Not Waiver. No delay or omission of the WIFIA Lender to exercise any right or remedy provided hereunder or under the WIFIA Note upon a default of the Borrower(except a delay or omission pursuant to a written waiver) shall impair any such right or remedy or constitute a waiver of any such default or acquiescence therein. Every right and remedy given by this Agreement or under the WIFIA Note or by law to the WIFIA Lender may be exercised from time to time, and as often as may be deemed expedient by the WIFIA Lender. 39 Section 30. Counterparts. This Agreement and any amendments, waivers, consents or supplements hereto or in connection herewith may be executed in any number of counterparts and by the different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. Electronic signatures are effective, valid and enforceable for any document executed by the WIFIA Lender and any counterpart thereto, and any notice to,request to, or communication with,the WIFIA Lender. Electronic delivery of an executed counterpart of a signature page of this Agreement or of any document or instrument delivered in connection herewith in accordance with Section 31 (Notices) shall be effective as delivery of an original executed counterpart of this Agreement or such other document or instrument, as applicable. Section 31. Notices. (a) All notices,requests,or communication hereunder shall be given in writing. (b) Notices to the WIFIA Lender should be made by (i) email to the email address noted below for the WIFIA Lender or(ii) submission through another electronic medium or transmission system as designated by and in a format acceptable to the WIFIA Lender, unless otherwise instructed by the WIFIA Lender: If to IA L- ,er: Environmei' 'rote n Agency IP WJC-E 7334A 1200 Pennsylvania A nue NW I Wastington, D. 04 0 Attention: WIFIA-Director Email: WIFIA_Portfolio@epa.gov (c) Notices to the Borrower should be made by(i)nationally recognized courier service, (ii) hand delivery, (iii) email, to the email address noted below for the Borrower, or (iv) another electronic medium in a format acceptable to the Borrower,unless otherwise instructed by the Borrower's Authorized Representative: If to Borrower: The notice details set forth in Part G of Schedule I (WIFIA Loan Specific Terms) (d) Each such notice, request or communication shall be effective (x) if delivered by hand or by nationally recognized courier service, when delivered at the address specified in this Section 32 (or in accordance with the latest unrevoked written direction from the receiving party),and(y)if given by email or other electronic method,when such email is delivered to the email address specified in this Section 32 or submitted to the electronic medium as directed by the receiving party, in each case with the sender's receipt of an acknowledgment from the intended recipient(such as by a"read receipt,"return email, or other written acknowledgment) (or in accordance with the latest unrevoked written direction from the receiving party); provided, that notices received on a day that is not a Business Day or after 5:00 p.m. Eastern Time on a Business Day will be deemed to be effective on the next Business Day. 40 Section 32. Indemnification. The Borrower shall, to the extent permitted by law, indemnify the WIFIA Lender, the Servicer (if any), and any official, employee, agent, advisor or representative of the WIFIA Lender (each such Person being herein referred to as an "Indemnitee") against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities, fines, penalties, costs and expenses (including the fees, charges and disbursements of any counsel for any Indemnitee and the costs of environmental remediation), whether known,unknown,contingent or otherwise,incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of(a) the execution, delivery and performance of this Agreement, any Construction Contract, or any Related Document, (b)the WIFIA Loan or the use of the proceeds thereof,or(c)the violation of any law,rule,regulation,order,decree,judgment or administrative decision relating to the environment, the preservation or reclamation of natural resources, the management, release or threatened release of any hazardous material or to health and safety matters; in each case arising out of or in direct relation to the Project; provided, that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities, fines, penalties, costs or related expenses are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. In case any action or proceeding is brought against an Indemnitee by reason of any claim with respect to which such Indemnitee is entitled to indemnification hereunder, the Borrower shall be entitled, at its expense, to participate in the defense thereof; provided, that such Indemnitee has the right to retain its own counsel, at the Borrower's expense,and such participation by the Borrower in the defense thereof shall not release the Borrower of any 1'1'aty that it mae to • � Inde iti n � ee against whom any indemnity claim contemplated in thi ecti is mLde shall be en ed, after consultation with the Borrower and upon consultation with suns l suc Indemnitee is advised that such indemnity claim is meritorious, to c prom • or settle any suc ndemnity claim. Any such compromise or settlement shall be bindin_upon th :grower for pu ses of this Section 32. Nothing herein shall be construed as a waiver of any legal immunity that may be available to any Indemnitee. To the extent permitted by applicable law, neither the Borrower nor the WIFIA Lender shall assert, and each of the Borrower and the WIFIA Lender hereby waives, any claim against any Indemnitee or the Borrower, respectively, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with,or as a result of,this Agreement, any Construction Contract,or any Related Document, the other transactions contemplated hereby and thereby, the WIFIA Loan or the use of the proceeds thereof, provided, that nothing in this sentence shall limit the Borrower's indemnity obligations to the extent such damages are included in any third party claim in connection with which an Indemnitee is entitled to indemnification hereunder. All amounts due to any Indemnitee under this Section 32 shall be payable promptly upon demand therefor. The obligations of the Borrower under this Section 32 shall survive the payment or prepayment in full or transfer of the WIFIA Loan,the enforcement of any provision of this Agreement or the other Related Documents, any amendments, waivers (other than amendments or waivers in writing with respect to this Section 32) or consents in respect hereof or thereof, any Event of Default, and any workout, restructuring or similar arrangement of the obligations of the Borrower hereunder or thereunder. Section 33. Sale of WIFIA Loan. The WIFIA Lender shall not sell the WIFIA Loan at any time prior to the later of(a) the Substantial Completion Date and (b) other than with respect to a sale or transfer to another Governmental Authority within the Federal Government, the Final Disbursement Date. After such date,the WIFIA Lender may sell the WIFIA Loan to another entity 41 or reoffer the WIFIA Loan into the capital markets only in accordance with the provisions of this Section 33. Such sale or reoffering shall be on such terms as the WIFIA Lender shall deem advisable. However, in making such sale or reoffering the WIFIA Lender shall not change the terms and conditions of the WIFIA Loan without the prior written consent of the Borrower in accordance with Section 24 (Amendments and Waivers). Prior to any sale or reoffering of the WIFIA Loan, the WIFIA Lender shall provide reasonable written notice to the Borrower of the WIFIA Lender's intention to consummate such a sale or reoffering. The provision of any notice pursuant to this Section 33 shall neither(x) obligate the WIFIA Lender to sell nor(y) provide the Borrower with any rights or remedies in the event the WIFIA Lender, for any reason, does not sell the WIFIA Loan. Section 34. Effectiveness. This Agreement shall be effective on the Effective Date. Section 35. Release of Lien. Upon the irrevocable payment in full in immediately available funds by the Borrower of the WIFIA Loan Balance, together with all accrued interest, fees and expenses with respect thereto, the WIFIA Lender shall cancel and discharge the Pledge and surrender the WIFIA Note to the Borrower in accordance with Section 9(b) (General Prepayment Instructions). Section 36. Survival. The indemnification requirements of Section 32 (Indemnification), the reporting and record keeping requirements of Section 14(n) (Access; Records) and the yment requirements of Se ' 10 ( ees and Expensesishall survive the termination of thi greeinent as provide�in suction Section 37 Inteltion1 Agreement, tog ther with t other WIFIA Loan Documents, constitutes the entire contra t bereen the arties relating to t subject matter hereof and supersedes any and all previous agreements and un erstandings, oral or written,relating to the subject matter hereof. [The remainder of this page intentionally left blank; signature pages immediately follow.] 42 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above. CITY OF LAKE OSWEGO, OREGON, by its authorized representative By: Name: Title: D RA F T [Signature Page to City Of Lake Oswego Wastewater Treatment Facility Replacement Project— WIFIA Loan Agreement] UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, acting by and through the Administrator of the Environmental Protection Agency By: Name: Lee M. Zeldin Title: Administrator D RA F T [Signature Page to City Of Lake Oswego Wastewater Treatment Facility Replacement Project— WIFIA Loan Agreement] SCHEDULE I WIFIA LOAN SPECIFIC TERMS No. Item W PART A. Key Borrower Metrics 1. Effective Date [ ], 2025. 2. Borrower City of Lake Oswego, Oregon, a Legal Entity duly organized and existing under and by virtue of the laws of the State of Oregon. 3. Legal Entity Municipal corporation and political subdivision. 4. State Oregon 5. Borrower FEIN 93-6002231. 6. Borrower UEI Number YJJFCP3HM9L6. 7. Initial Borr r Fiscal Y r The fiscil year of the Borro r commencing on July 1 any calendar year an ending on June 30 of the i mediately succ eding calendar year. 8. Application Receipt Date anuary 15, A25. 9. WIFIA CUSIP Number A-]', as the CUSIP number di the WIFIA Loan for purposes of monitoring through EMMA. 10. System The sewer collection and treatment system owned and operated by the Borrower (and of which the Project is a part). 11. Trustee Not Applicable. 12. Trustee Location Not Applicable. 13. System Revenues All revenues of the System. 1 Note to Borrower: Please provide. Schedule I-3 No. Item WIFIA Loan Specific Term PART B. Key Project Metrics 14. Project The project is the Lake Oswego Wastewater Treatment Facility Replacement Project, located at the Project Location, and consists of the development and construction of a new wastewater treatment facility, which will replace the adjacent and aging Tryon Creek Wastewater Treatment Plant. 15. Project Location City of Lake Oswego, Oregon. 16. Projected Substantial August 31, 2028, as such date may be adjusted in Completion Date accordance with Part C of Schedule V (Reporting Requirements). 17. Development Default Date August 31, 2030. 18. NEPA Determination Finding of No Significant Impact for the Project issued by EPA on [ ], 20[ ] in accordance with NEPA. 19. [Reserved] IF k p- 11 PART C. Keil Loan Metrics 20. Maximum Principal Amount Principal amount up to $123,480, 0 (excluding interest that is capitalized in accordance with this Agreement). 21. WIFIA Interest Rate [ ]%per annum. 22. Default Rate Interest rate equal to the sum of(a) the WIFIA Interest Rate plus (b) 200 basis points. 23. Interest Payment Date Each June 1 and December 1, beginning on the Debt Service Payment Commencement Date. 24. Capitalized Interest Period The period from (and including) the first Disbursement to (but excluding) the date that is six (6) months prior to the first Payment Date set forth in the WIFIA Loan Amortization Schedule, subject to earlier termination as set forth in Section 8(a)(iii) (Payment of WIFIA Debt Service). 25. Capitalized Interest Date Each June 1 and December 1 occurring on or after the date of the first Disbursement and through (and including) the day immediately following the end of the Capitalized Interest Period, except that, in the event of Schedule I-4 No. Item WIFIA Loan Specific Term an earlier termination of the Capitalized Interest Period pursuant to Section 8(a)(iii) (Payment of WIFIA Debt Service), the final Capitalized Interest Date shall be the date immediately following such termination. 26. Interest Only Period The period commencing from (and including) the Debt Service Payment Commencement Date and ending on (but excluding)the first Principal Payment Date set forth in the WIFIA Loan Amortization Schedule (or on such earlier date as all amounts due or to become due to the WIFIA Lender hereunder have been irrevocably paid in full in cash). 27. Principal Payment Date Each June 1, beginning on June 1, 2036 (which initial Principal Payment Date may be adjusted by a revised WIFIA Loan Amortization Schedule in accordance with Section 8(c) (Adjustments to WIFIA Loan Amortization Schedule)).. 28. Final Maturity Date The ear •-st of(. I- 1, 2063, (b) the date on which .10 U e ma of e TT A Loan and corresponding IFI• h. ace rated or subject to man' 'em ion or prepa ent (as the case may -) - or to to thereof; an c) the Payment Date 1 -diately . -c-ding the date at is thirty-five (35) years following the Substantial Completion Date. 29. [Reserved] II PART D. Key Security Metrics 30. Lien priority Senior lien. 31. Springing lien Not Applicable 32. Dedicated revenue source Pledged Revenues and/or System Revenues. 33. Pledged Revenues The Borrower's general non-restricted revenues and other funds that are lawfully available for that purpose, including revenues from an ad valorem tax authorized to be levied under the Borrower's permanent rate limit under Article XI of the Oregon Constitution, and Schedule 1-5 No. Item WIFIA Loan Specific Term revenues derived from other taxes, if any, levied by the Borrower in accordance with and subject to the limitations and restrictions imposed under applicable law or contract,that are not dedicated,restricted or obligated by law or contract to an inconsistent expenditure or use. 34. Borrower Accounts The Sewer Fund and the General Fund. 35. Sewer Fund The sewer fund established by the Borrower. 36. General Fund The general fund established by the Borrower. 37. WIFIA Debt Service Account Not Applicable. 38. WIFIA Debt Service Reserve Not Applicable. Account • 39. WIFIA Debt Service Reserve Not Applic ble. Requirement 40. Collection Rev es L` iiie orrowi tenants to use all taxing power ble to rrower in okier to generate funds sufficient to permit the Borrower to make all payments of debt service in respect of the WIFIA Loan, subject to Article XI of the Oregon Constitution and any other limitations imposed by applicable law. 41. Flow of Funds Not Applicable. 42. [Reserved] PART E. Other Key WIFIA Loan Documents 43. WIFIA Note The promissory note issued and delivered by the Borrower in substantially the form of Exhibit A (Form of WIFIA Note). 44. Indenture Not Applicable. Schedule I-6 No. Item WIFIA Loan Specific TermIII 45. WIFIA Supplemental Not Applicable. Indenture 46. WIFIA Term Sheet WIFIA term sheet, dated as of the Effective Date, between the Borrower and the WIFIA Lender. 47. WIFIA Resolution Resolution [25-[_]], adopted by the City Council of the Borrower on [ ], 2025, authorizing, among other things, the execution and delivery of the WIFIA Loan Documents and issue the WIFIA Note. 48. Intergovernmental Agreement The intergovernmental agreement to be entered into between the Borrower and the City of Portland, setting out certain terms and conditions relating to the Project, including those terms and conditions referenced in Section 2 (The Future IGA) of the Interim Intergovernmental Agreement, dated October 26, 2020, between the Borrower and the City of Portland. PART F. Fe "1 A 49. Servicing t-Up Fee A servicing set-u al to $ 9,060. 50. Constructi Perio Servicing An annual cos tion period servicing fee equal to Fee $19,40. 51. Initial Construction Period The initial Construction Period Servicing Fee in a pro- Servicing Fee rated amount equal to $[ ].2 52. Operating Period Servicing An annual operating period servicing fee equal to Fee $9,530. PART G. Borrower Related Notices 53. Borrower notice details3 City of Lake Oswego 380 "A"Avenue P.O. Box 369 Lake Oswego, Oregon 97034 Attention: [ ] Email: [ ] 54. Trustee notice details Not applicable. 2 Note to Borrower: The pro-rated construction servicing fee amount will be provided closer to the closing date. 3 Note to Borrower: Please complete. Schedule I-7 Schedule I-8 SCHEDULE II PROJECT DETAILS PART A. Project Budget.' SOURCES OF FUNDS AMOUNT ($ USD) PERCENTAGE (%) WIFIA Loan $123,480,000 49.0% Full Faith and Credit $[100,000,000] [39.7]% Obligation Bonds Borrower Cash $[14,520,000] [4.2]% [Previously Incurred Costs] [$14,000,000] Total Sources of Funds $252,000,000 100% USES OF FUNDS AMOUNT ($ USD) _ PERCENTAGE (%) Construction $195,000,000 77.4% Planning and Design $15,000,000 6.0% Land Acquisition $15,000,000 6.0% Contingency $23,000,000 9.1% Financing Costs $4,000,000 1.6% Total Uses of Fug $252,000 Total Eligible Project Costs $252,000 00 100% Total Project Costs $252,000,000 11)0% PART B. Construction Schedule. Projected Substantial Completion Date: August 31, 2028 - PROJECT ELEMENT DESIGN CONSTRUCTION CONSTRUCTION COMPLETION START END Lake Oswego Wastewater 12/2025 1/2026 8/2028 Treatment Facility 1 Note to Borrower:Please review and confirm.We understand from initial diligence that the sources for the$14mil in previously incurred costs included bonds, system revenues and City of Portland payments.Please allocate the$14 mil and adjust the bonds and cash lines accordingly to include the previously incurred costs. Schedule II-1 PART C. Existing Construction Contracts. None. D RA F T Schedule II-2 SCHEDULE III BORROWER DISCLOSURES' PART A. Existing Indebtedness. Agreement/Series Outstanding Principal as of Effective Date 1. [2024 Full Faith and Credit Obligations, Series 2024, issued pursuant to the [ ], dated [ ], maturing on [ ]] 2. 3. 4. 5. D RA F 'Note to Borrower:Borrower to complete. Schedule III-1 PART B. Litigation Disclosure. [ ]' No. Parties Date Initiated Description/ Status Venue PART C. Environmental Matter Disclosure. [ l3 D RA F T 2 Include"None"if no litigation disclosures are necessary. 3 Include"None"if no environmental matter disclosures are necessary. Schedule III-2 SCHEDULE IV REQUISITION PROCEDURES This Schedule IV sets out the procedures which the Borrower agrees to follow in submitting Requisitions for any Disbursement of the WIFIA Loan. The Borrower expressly agrees to the terms hereof, and further agrees that(i) the rights of the WIFIA Lender contained herein are in addition to(and not in lieu of)any other rights or remedies available to the WIFIA Lender under the WIFIA Loan Documents,and(ii) nothing contained herein shall be construed to limit the rights of the WIFIA Lender to take actions including administrative enforcement action and actions for breach of contract against the Borrower if it fails to carry out its obligations under the WIFIA Loan Agreement during the term thereof. PART A. General Requirements. (a) Manner of Request: All requests by the Borrower for a Disbursement shall be made in writing by electronic submission to the WIFIA Lender, in accordance with Section 31 (Notices) of the WIFIA Loan Agreement. (b) Required Documentation: Any request by the Borrower should include the submission of: 11-11 (i) a Requisition, in the fortff attache s Exhibit D orm of Requisition), completed and ex ted by the Borrower's Authorize Re ive, an therwise in form and substance satisfac to t WIFIA Lender; and ■ A/ (ii) all Eligible Project Costs Documentation that has not otherwise been provided to the WIFIA Lender in accordance with Part C of Schedule V (Reporting Requirements) of the WIFIA Loan Agreement. (c) Timing: Any request for a Disbursement must be received by the WIFIA Lender and the Servicer(if any) at or before 5:00 P.M. (Eastern Time) on either: (i) the first (1st) Business Day of a calendar month in order to obtain the requested Disbursement by the fifteenth (15th) day of such calendar month; (ii) the fifteenth(15th) day of a calendar month, in order to obtain the requested Disbursement by the first(1st) day of the immediately following calendar month; provided,that, (x) if any such day is not a Business Day, the Disbursement request or payment (as the case may be) shall be made by the next succeeding Business Day; (y) the Borrower shall not request to receive more than one (1) Disbursement per month or every thirty (30) days (whichever is longer); and (z) no Disbursements shall be made after the Final Disbursement Date. Schedule IV-1 PART B. WIFIA Lender Review Process. (a) The WIFIA Lender shall review the Requisition and the Eligible Project Costs Documentation for compliance with WIFIA Disbursement requirements. (b) If a Requisition is approved by the WIFIA Lender, the WIFIA Lender will notify the Borrower of such approval and of the amount so approved. A Requisition containing an apparent mathematical error will be corrected by the WIFIA Lender, after telephonic or email notification to the Borrower, and will thereafter be treated as if submitted in the corrected amount. If the amount requested for Disbursement in the Requisition exceeds the available balance of the WIFIA Loan proceeds remaining to be disbursed, the Disbursement request will be treated as if submitted in the amount of the balance so remaining, and the WIFIA Lender will so notify the Borrower. (c) The WIFIA Lender shall be entitled to withhold approval (in whole or in part) of any pending or subsequent requests for the Disbursement of WIFIA Loan proceeds if: (i)a Default or an Event of Default shall have occurred and be continuing or (ii) the Borrower (1) knowingly takes any action, or omits to take any action, amounting to fraud or violation of any applicable law, in connection with the transactions contemplated hereby; (2) prevents or materially impairs the ability of the WIFIA Lender to monitor compliance by the Borrower with applicable law pertaining to the Project or with the terms and conditions of the WIFIA Loan Agreement; (3) fails to observe or comply with any applicable law, or any t rm orsp dition oLthe WIFIA Loan Agreement; (4) fails to satisfy the conditions set forth in Se ion 4 (Disbursement Conditions) and Section 11(b)(Conditions PrecedentaDisbursements)oft Loan Agreement;or(5)fails to deliver Eligible Project Costs Documentation satisfacto o the WIFIA Lender at the times and in the manner spigimilly the WIFIA Loan Agreein provided, that in such case of sub- clause (5) above, the WIFIA Lender may, in its sole discretion, partially approve a Requisition in respect of any amounts for which adequate Eligible Project Costs Documentation has been provided and may,in its sole discretion,disburse in respect of such properly documented amounts. The WIFIA Lender will notify the Borrower of any withholding, and the reasons therefor. (d) A Requisition may be rejected in whole or in part by the WIFIA Lender if it is: (i) submitted without signature; (ii) submitted under signature of a Person other than a Borrower's Authorized Representative; (iii) submitted after prior Disbursement of all proceeds of the WIFIA Loan; or (iv) submitted without adequate Eligible Project Costs Documentation. The WIFIA Lender will notify the Borrower of any Requisition so rejected, and the reasons therefor. Any Requisition rejected for the reasons specified under this paragraph(d) must be resubmitted in proper form in order to be considered for approval. Schedule IV-2 SCHEDULE V REPORTING REQUIREMENTS PART A. [Reserved]. PART B. Annual Financial Statements. The Borrower shall deliver to the WIFIA Lender, as soon as available, but no later than one hundred eighty(180)days after the end of each Borrower Fiscal Year,a copy of the audited income statement and balance sheet of the Borrower as of the end of such Borrower Fiscal Year and the related audited statements of operations and of cash flow of the Borrower for such Borrower Fiscal Year, (a) setting forth in each case in comparative form the figures for the previous fiscal year, (b) certified without qualification or exception, or qualification as to the scope of the audit, by an independent public accounting firm selected by the Borrower and(c)which shall be complete and correct in all material respects and shall be prepared in reasonable detail and in accordance with GAAP applied consistently throughout the periods reflected therein (except, with respect to the annual financial statements, for changes approved or required by the independent public accountants certifying such statements and disclosed therein). PART C. Construction Monitoring. (a) The'IFIA Lender shall ha the ri tin its sole on to monitor(or direct its agents to monitor)the develoop nt of the Project, inctdlling environmental compliance, design, and construction 4 the Project The Borrower shall be responsible for administering construction oversight of the Project i OrordanceVievitir applicable fedleral, state and local governmental requirements. The Borrower agrees to cooperate in good faith with the WIFIA Lender in the conduct of such monitoring by promptly providing the WIFIA Lender with such reports, documentation or other information as shall be requested by the WIFIA Lender or its agents, including any independent engineer reports, documentation or information. (b) Construction Monitoring Report. During the period beginning from the first quarter following bid advertisement of the first Construction Contract for the Project,through and until Substantial Completion of the Project, the Borrower shall furnish to the WIFIA Lender, on a quarterly basis, the Construction Monitoring Report. The report shall be delivered to the WIFIA Lender within thirty (30) days of the end of each such quarter (or if such day is not a Business Day, on the next following Business Day). If the then-current projection for the Substantial Completion Date is a date different than the Projected Substantial Completion Date, the Borrower shall provide in the Construction Monitoring Report a description in reasonable detail to the reasonable satisfaction of the WIFIA Lender of the reasons for such projected delay or difference. The Projected Substantial Completion Date shall automatically be adjusted to the new date specified by the Borrower in the Construction Monitoring Report unless the WIFIA Lender objects to the adjustment in writing to the Borrower within sixty (60) days following receipt of such Construction Monitoring Report on the basis that such report does not demonstrate the matters specified in this paragraph. Schedule V-1 (c) Quarterly Certification of Eligible Project Costs. If requested by the WIFIA Lender, on a basis not more frequently than quarterly, the Borrower shall submit to the WIFIA Lender, concurrently with the delivery of the Construction Monitoring Report, a certificate, in the form of Exhibit E (Form of Certification of Eligible Project Costs Documentation), signed by the Borrower's Authorized Representative, and attaching Eligible Project Costs Documentation as applicable. If there are no applicable Eligible Project Costs for such quarter, the Borrower may notify the WIFIA Lender by written confirmation of the same by email in accordance with Section 31 (Notices) of the WIFIA Loan Agreement. Within sixty(60) days following the receipt of such certificate and accompanying Eligible Project Costs Documentation (if applicable), the WIFIA Lender shall notify the Borrower confirming (i) which Eligible Project Costs incurred by the Borrower set forth in the certification have been approved or denied (and, if denied, the reasons therefor) and (ii) the cumulative amount of Eligible Project Costs that have been approved as of the date of such notice. Any such approved amounts of Eligible Project Costs shall then be deemed to be available for Disbursement at such time as the Borrower submits a Requisition in respect of such approved amounts in accordance with Section 4 (Disbursement Conditions). (d) Final Specifications. The Borrower shall deliver to the WIFIA Lender,prior to bid advertisement for the Project (including each sub-project or component, if applicable), a copy of the final specifications relating to the development and construction of the Project(or such sub-project or component, as the case may be), demonstrating compliance with all applicable federal requirements and including a summary of the scope of work thereunder. PART D. Pu c Benefits Report. lt The Borrower sha eliver to the WIF ender the Publi enefits Repo (a)no later than thirty (30) days prior t fectivg Date, kithin niwty 90) days following the Substantial Completion Date and (c) within ninety (90) days following the fifth (5th) anniversary of the Substantial Completion Date. The Borrower agrees that information described in the Public Benefits Report may be made publicly available by the WIFIA Lender at its discretion. PART E. Notices. (a) The Borrower shall, within fifteen (15) days (or such other time as may be specified below)after the Borrower learns of the occurrence, give the WIFIA Lender notice of any of the following events or receipt of any of the following notices,as applicable, setting forth details of such event: (i) Substantial Completion: the occurrence of Substantial Completion, such notice to be provided in the form set forth in Exhibit G (Form of Certificate of Substantial Completion); (ii) Defaults; Events of Default: any Default or Event of Default; (iii) Litigation: (1) the filing of any litigation, suit or action, or the commencement of any proceeding, against the Borrower before any arbitrator, Governmental Authority, alternative dispute resolution body, or other neutral third-party, that could reasonably be expected to have a Material Adverse Effect, and (2) any final, non-appealable judgment related to the Pledge or the Pledged Revenues that could Schedule V-2 reasonably be expected to result in the impairment of(A)the Borrower's ability to comply with any of its payment obligations under the WIFIA Note or this Agreement or (B) the existence,priority or perfection (if applicable) of the Pledge; (iv) Delayed Governmental Approvals: any failure to receive or delay in receiving any Governmental Approval or making any required filing, notice, recordation or other demonstration to or with a Governmental Authority,in each case to the extent such failure or delay will or could reasonably be expected to result in a delay to any major milestone date (including the Projected Substantial Completion Date) set forth in the Construction Schedule, together with a written explanation of the reasons for such failure or delay and the Borrower's plans to remedy or mitigate the effects of such failure or delay; (v) Environmental Notices: any material notice of violation related to the Project or any material change to the Project that could reasonably be expected to affect the NEPA Determination; (vi) Amendments: except as otherwise agreed by the WIFIA Lender in writing, copies of any fully executed amendments, modifications, replacements or supplements to any Related Document; provided, that such notice may be accomplished through the posting of the relevant documents on EMMA under the WIFIA CUSIP Number with a reference to the relevant WIFIA provision of this Agreement; (vii Related Document Defaults: y material Mach or default or event of default the pa of the Borrower or any othiinder any Related Document; provided, at such notice may be accomplishe through the posting of the relevant documents n EI A wider the WIFIA CUSIP 1N ber with a reference to the relevant WIFIA provision of this Agreement; (viii) Uncontrollable Force: the occurrence of any Uncontrollable Force that could reasonably be expected to materially and adversely affect the Project; (ix) Ratings Changes: any change in the rating assigned to the WIFIA Loan or any Obligations, in each case by any Nationally Recognized Rating Agency that has provided a public rating on such indebtedness, and any notices,reports or other written materials (other than those that are ministerial in nature) received from any such rating agencies; provided, that such notice may be accomplished through the posting of the relevant documents on EMMA under the WIFIA CUSIP Number with a reference to the relevant WIFIA provision of this Agreement; (x) 2 C.F.R. § 180.350 Notices: any notification required pursuant to 2 C.F.R. § 180.350,whether attributable to a failure by the Borrower to disclose information previously required to have been disclosed or due to the Borrower or any of its principals meeting any of the criteria set forth in 2 C.F.R. § 180.335; (xi) Issuance of Obligations: copies of any final issuing instrument (together with any continuing disclosure documents, ordinances, official statement, certifications or cash flow projections in connection therewith), prepared in connection with the incurrence of any Permitted Debt(including any Additional Obligations),together Schedule V-3 with a confirmation by the Borrower that such additional indebtedness satisfies the applicable requirements under the definition of "Permitted Debt"; provided, that such notice may be accomplished through the posting of the relevant documents on EMMA under the WIFIA CUSIP Number with a reference to the relevant WIFIA provision of this Agreement; (xii) Postings on EMMA: the posting of any document on EMMA in accordance with the requirements of any continuing disclosure agreement or similar document with respect to any Outstanding Obligations relating to annual financial information and operating data and the reporting of significant events; provided, that such notice may be accomplished through the posting of the relevant document on EMMA under the WIFIA CUSIP Number with a reference to the relevant WIFIA provision of this Agreement; (xiii) SAM /UEI: any change in the Borrower's SAM registration status (including any exclusions, expiration or inactive registration) or UEI Number (including any expiration or change in effectiveness);provided,that such notice may be accomplished through the posting of the relevant document on EMMA under the WIFIA CUSIP Number with a reference to the relevant WIFIA provision of this Agreement; (xiv) Reorganization, Consolidation or Merger: the occurrence of any reorganiza ' onsolidatio ergerpVgethe with the agreements and documents authorizin; he reor:anization, co solidation r me er; and (xv) Fiscal Ye any change to o doption of a fiscal year other than the Initial ,• 8 - iscal Year; v. ed, that is otice may b ccomplished through the posting of the relevant document on EMMA un er the WIFIA USIP Number with a reference to the relevant WIFIA provision of this Agreement; and (xvi) Other Adverse Events: the occurrence of any other event or condition, including, without limitation, any notice of breach from a contract counterparty or any holder of any Obligations, that could reasonably be expected to result in a Material Adverse Effect. (b) The Borrower shall, at any time while the WIFIA Loan remains Outstanding, promptly deliver to the WIFIA Lender such additional information regarding the business, financial, legal or organizational affairs of the Borrower or regarding the System, the Project or the [Pledged Revenues] as the WIFIA Lender may from time to time reasonably request. The Borrower agrees that the delivery of any documents or information under and pursuant to this Agreement shall not be construed as compliance with, or affect in any manner, any obligations of the Borrower under any other contracts, agreements, decrees, Governmental Approvals, or other documents with EPA (other than the WIFIA Loan Documents) or the Federal Government. Schedule V-4 SCHEDULE VI WIFIA LOAN AMORTIZATION SCHEDULE [To be attached with final interest rate on the Effective Date] D RA F T Schedule VI-1 EXHIBIT A FORM OF WIFIA NOTE CITY OF LAKE OSWEGO, OREGON LAKE OSWEGO WASTEWATER TREATMENT FACILITY REPLACEMENT PROJECT (WIFIA ID—21111OR) WIFIA NOTE Interest Rate Final Maturity Date Dated Date WIFIA CUSIP [ ]%, subject to the June 1, 2063, subject [ ] [ ] Default Rate (as to adjustment as set defined and in forth in the WIFIA accordance with the Loan Agreement WIFIA Loan Agreement) 1111.n m Registered Own UNITED STATES I 1 1 v NTAL PROTECTION AGENCY, acting by ancit 1 ugh the Administrator of the Environmental Protection Agency Maximum Principal $123,480,000 (excluding capitalized interest, if any) Amount CITY OF LAKE OSWEGO, OREGON, a municipal corporation under the laws of the State of Oregon (the "Borrower"), for value received, hereby promises to pay to the order of the UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, acting by and through the Administrator of the United States Environmental Protection Agency, or its assigns (the "WIFIA Lender"), the lesser of(x) the Maximum Principal Amount set forth above and (y) the aggregate unpaid principal amount of all Disbursements made by the WIFIA Lender (such lesser amount,together with any interest that is capitalized and added to principal in accordance with the provisions of the WIFIA Loan Agreement(as defined below), being hereinafter referred to as the "Outstanding Principal Sum"), together with accrued and unpaid interest (including, if applicable, interest at the Default Rate, as defined in the WIFIA Loan Agreement) on the Outstanding Principal Sum and all fees, costs and other amounts payable in connection therewith, all as more fully described in that certain WIFIA Loan Agreement, dated as of the date hereof, between the WIFIA Lender and the Borrower(the "WIFIA Loan Agreement"). All capitalized terms used in this WIFIA Note and not defined herein shall have the meanings set forth in the WIFIA Loan Agreement. Exhibit A-1 The WIFIA Debt Service hereof shall be payable in the amounts, manner and on the Payment Dates as set forth in the WIFIA Loan Amortization Schedule in accordance with the WIFIA Loan Agreement (which WIFIA Loan Amortization Schedule may be revised from time to time in accordance with the WIFIA Loan Agreement), until paid in full (which Loan Amortization Schedule, as modified from time to time in accordance with the terms of the WIFIA Loan Agreement, is incorporated in and is a part of this WIFIA Note). The WIFIA Lender is hereby authorized to modify the WIFIA Loan Amortization Schedule from time to time to reflect the amount of each Disbursement made thereunder and the date and amount of principal or interest paid by the Borrower thereunder and otherwise in accordance with the terms of the WIFIA Loan Agreement. Absent manifest error,the WIFIA Lender's determination of such matters as set forth on the WIFIA Loan Amortization Schedule to the WIFIA Loan Agreement shall be conclusive evidence thereof;provided,however,that neither the failure to make any such recordation nor any error in such recordation shall affect in any manner the Borrower's obligations hereunder or under any other WIFIA Loan Document. Payments hereon are to be made in accordance with Section 8(b)(Manner of Payment)and Section 31 (Notices) of the WIFIA Loan Agreement as the same become due. Principal of and interest on this WIFIA Note shall be made in Dollars and in immediately available funds (without counterclaim, offset or deduction). Any payment in respect of the WIFIA Note shall be treated as a payment in respect of the WIFIA Loan and any prepayment of principal in respect of the WIFIA Loan shall be treated as a redemption in respect of the WIFIA Note. If the Final Maturity Date is adjusted in accordance with the WIFIA Loan A ment, a� VIFIA Note shall be deemed to be amended two change the due date o ch r 'sed Final M rity Date without any further action required on the part of the Borrower th Lend and such amendment shall in no way amend,modify or affect the other proviso of this WIFI ote without the prior written agreement of the WIFIA Lender. Any.such amendm nt shall be re cted in a revised Loan Amortization Schedule. This WIFIA Note has been executed under and pursuant to the WIFIA Loan Documents and is issued to evidence the obligation of the Borrower under the WIFIA Loan Documents to repay the loan made by the WIFIA Lender and any other payments of any kind required to be paid by the Borrower under the WIFIA Loan Agreement or the other WIFIA Loan Documents referred to therein. Reference is made to the WIFIA Loan Agreement for all details relating to the Borrower's obligations hereunder. Payment of the obligations of the Borrower under this WIFIA Note is secured by the Pledged Revenues pursuant to the WIFIA Loan Agreement. The WIFIA Loan represented by this WIFIA Note is a full faith and credit obligation of the Borrower, which obligation is absolute and unconditional and not subject to annual appropriation or any setoff, counterclaim, recoupment, defense, insolvency, bankruptcy, reorganization, abatement or any other event or circumstance, whether or not similar to any of the foregoing. The Lien on the Pledged Revenues securing this WIFIA Note for the benefit of the WIFIA Lender is on a parity in right of payment and right of security to the Lien on the Pledged Revenues in favor of the other Obligations. This WIFIA Note may be prepaid at the option of the Borrower in whole or in part(and, if in part, the principal installments and amounts thereof to be prepaid are to be determined in accordance with the WIFIA Loan Agreement; provided, however, such prepayments shall be in Exhibit A-2 principal amounts of at least $1,000,000 or any integral multiple of$1 in excess thereof), without penalty or premium, and otherwise in accordance with the WIFIA Loan Agreement. Any delay on the part of the WIFIA Lender in exercising any right hereunder shall not operate as a waiver of any such right, and any waiver granted with respect to one default shall not operate as a waiver in the event of any subsequent default. All acts,conditions and things required by the Constitution and laws of the State to happen, exist, and be performed precedent to and in the issuance of this WIFIA Note have happened, exist and have been performed as so required. This WIFIA Note is issued with the intent that the federal laws of the United States of America shall govern its construction to the extent such federal laws are applicable and the internal laws of the State shall govern its construction to the extent such federal laws are not applicable. IN WITNESS WHEREOF,the Borrower has caused this WIFIA Note to be executed in its name and its seal to be affixed hereto and attested by its duly authorized officer, all as of the Effective Date set forth above. CITY OF LAKE OSWEGO, OREGON, by its authorized representative D (SEAL) R A e: FT ATTEST: By: Name: Title: Exhibit A-3 (FORM OF ASSIGNMENT) FOR VALUE RECEIVED, the Undersigned hereby unconditionally sells, assigns and transfers unto (Please Insert Social Security or other identifying number of Assignee(s)): the within WIFIA Note and all rights thereunder. Dated: NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within note in every particular,without alteration or enlargement or any change whatever. DRAFT Exhibit A-4 EXHIBIT B FORM OF CLOSING CERTIFICATE Reference is made to that certain WIFIA Loan Agreement, dated as of[ ], 2025 (the "WIFIA Loan Agreement"),by and among City of Lake Oswego, Oregon(the"Borrower") and the United States Environmental Protection Agency, acting by and through the Administrator(the "WIFIA Lender"). Capitalized terms used in this certificate and not defined shall have the respective meanings ascribed to such terms in the WIFIA Loan Agreement. In connection with Section 11(a) (Conditions Precedent to Effectiveness) of the WIFIA Loan Agreement,the undersigned, as the Borrower's Authorized Representative, does hereby certify on behalf of the Borrower and not in his/her personal capacity, as of the date hereof: (a) pursuant to Section 11(a)(v) of the WIFIA Loan Agreement, attached hereto as Annex A is an incumbency certificate that lists all persons, together with their positions and specimen signatures, who are duly authorized by the Borrower to execute the WIFIA Loan Documents to which the Borrower is or will be a party, and who have been appointed as a Borrower's Authorized Representative in accordance with Section 21 (Borrower's Authorized Representative) of the WIFIA Loan Agreement; Al (b) purs ant to ection 11(a)(ii) of : IFIA Loan Agree nt, the Borrower has delivered to the WIF Lender . s of any Related D ment with respect to which all or a portion o proc: or will be applied nd all or any portion of Total PPct costs, i each case th ha been entere to on or prior to the Effective Date, and each suc document is complete, ful y executed, and in full force and effect, and all conditions contained in the Related Documents that are necessary to the closing of the WIFIA transaction contemplated hereby (if any) have been fulfilled; (c) pursuant to Section 11(a)(v)(A) of the WIFIA Loan Agreement, (i) the maximum principal amount of the WIFIA Loan (excluding any capitalized interest), together with the amount of any other credit assistance provided under the Act to the Borrower, does not exceed forty-nine percent (49%) of reasonably anticipated Eligible Project Costs; (ii) the aggregate amount of Eligible Project Costs previously incurred prior to the Effective Date does not exceed fifty-one percent (51%)of Eligible Project Costs; and(iii) the total federal assistance provided to the Project, including the maximum principal amount of the WIFIA Loan (excluding any capitalized interest), does not exceed eighty percent (80%) of Total Project Costs; (d) pursuant to Section 11(a)(v)(B) of the WIFIA Loan Agreement, the Borrower is in compliance with NEPA and any applicable federal, state or local environmental review and approval requirements with respect to the Project; Exhibit B-1 (e) pursuant to Section 11(a)(v)(C) of the WIFIA Loan Agreement, the Borrower has (i) obtained a FEIN, as evidenced by the Borrower's W-9 which is attached hereto as Annex B-1, and a UEI Number, in each case as set forth on Part A of Schedule I (WIFIA Loan Specific Terms) to the WIFIA Loan Agreement, and (ii) registered with, and obtained confirmation of active SAM registration status, which confirmation is attached hereto as Annex B-2; (f) pursuant to Section 11(a)(v)(D) of the WIFIA Loan Agreement, the Borrower has obtained the WIFIA CUSIP Number, as set forth on Part A of Schedule I (WIFIA Loan Specific Terms) to the WIFIA Loan Agreement, and which confirmation is attached hereto as Annex C; (g) pursuant to Section 11(a)(v)(E)of the WIFIA Loan Agreement,the representations and warranties of the Borrower set forth in the WIFIA Loan Agreement and in each other WIFIA Loan Document to which the Borrower is a party are true and correct on and as of the date hereof, except to the extent that such representations and warranties expressly relate to an earlier date, in which case such representations and warranties were true and correct as of such earlier date; (h) pursuant to Section 11(a)(v)(F) of the WIFIA Loan Agreement, no Material Adverse Effect,or any event or condition that could reasonably be expected to have a Material dverse Effect,has oc ed or arisen since the date.the Application; and (i) pu ant to ction 11(a)(vi) of th IF Loan Agreement, the rating letter deli ered e fIFIA Lendej pursu t uch Section 11(a)(vii) has not been reduceswithdrawn or suspended as oft e fective Date. IN WITNESS WHEREOF,the undersigned has executed this certificate as of the date first mentioned above. CITY OF LAKE OSWEGO, OREGON, by its authorized representative By: Name: Title: Exhibit B-2 ANNEX A TO EXHIBIT B INCUMBENCY CERTIFICATE1° The undersigned certifies that he/she is the [Secretary] of City of Lake Oswego, Oregon, a municipal corporation of the State of Oregon, (the "Borrower"), and as such he/she is authorized to execute this certificate and further certifies that the following persons have been elected or appointed, are qualified, and are now acting as officers or authorized persons of the Borrower in the capacity or capacities indicated below,and that the signatures set forth opposite their respective names are their true and genuine signatures. He/She further certifies that any of the officers listed below is authorized to sign agreements and give written instructions with regard to any matters pertaining to the WIFIA Loan Documents as the Borrower's Authorized Representative (each as defined in that certain WIFIA Loan Agreement, dated as of the date hereof,between the Borrower and the United States Environmental Protection Agency,acting by and through the Administrator): Name Title Signature [ ] [ ] [ ] [ ] r ] r LI [ ] IN WITNESS WHEREOF, the undersigned has executed this certificate as of this day of[ ], 2025. CITY OF LAKE OSWEGO, OREGON, by its authorized representative By: Name: Title: 10 Note to Borrower:Please complete. Exhibit B-3 EXHIBIT C FORM OF PUBLIC BENEFITS REPORT Pursuant to [Section 11(a)(vii))and]Part D of Schedule V(Reporting Requirements)of the WIFIA Loan Agreement (as defined below), CITY OF LAKE OSWEGO, OREGON, (the "Borrower") is providing this Public Benefits Report in connection with the Lake Oswego Wastewater Treatment Facility Replacement Project (WIFIA ID — 211110R). Capitalized terms used in this certificate and not defined shall have the respective meanings ascribed to such terms in the WIFIA Loan Agreement dated [on or about the date hereof][ ] (the "WIFIA Loan Agreement"), between the Borrower and the United States Environmental Protection Agency, acting by and through the Administrator. Reporting Period: [Prior to the Effective Date][within ninety(90) days following the Substantial Completion Date][within ninety (90) following the fifth (5th) anniversary of the Substantial Completion Date] (i) The number of total jobs and direct jobs projected to be created by the Project during the period between the Effective Date and the Substantial Completion Date: WIFIA projects that the Project will create ] total 'obs, of which the Borrower projects [ ] will be direct jobs. (ii) Indicate (yes or no) whether the Project will assist the Borro r in complying with applicable regulaluirements, and if yes, describe how t project assists with regulator nce:■ Yes ❑ If yes, additional description: [ ] No D (iii) The Project will assist the Borrower with the following environmental measure:1 (A) Amount by which the Project will provide new, expanded, improved, more reliable, more resilient, or more efficient treatment capacity for wastewater treatment: [ ] MGD; (B) Amount by which the Project will provide a higher level of treatment at wastewater treatment plants: [ ] MGD; and 'Note to Borrower:WIFIA Engineer has estimated these amounts to be,respectively,(A)52.3 MGD,(B)52.3 MGD and(C) 1533 Tons/year.Please confirm. Exhibit C-1 (C) Amount by which the Project will increase Class A and Class B biosolids production: [ ] Tons/year. D RA F T Exhibit C-2 EXHIBIT D FORM OF REQUISITION VIA EMAIL United States Environmental Protection Agency 1200 Pennsylvania Avenue NW WJC-E 7334A Washington, D.C. 20460 Attention: WIFIA Director Email: WIFIA_Portfolio@epa.gov Re: Lake Oswego Wastewater Treatment Facility Replacement Project (WIFIA ID — 211110R) Ladies and Gentlemen: Pursuant to Section 4(Disbursement Conditions)and Schedule IV(Requisition Procedures)of the WIFIA Loan Agreement, dated as of [ ], 2025 (the "WIFIA Loan Agreement"), by and between CITY OF LAKE OSWEGO, OREGON, (the "Borrower") and the UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, acting by and through the Administrator (the "WIFIA Lender' e Borrower hereb eques Disbursement in the amount set forth below in respect of Eligi Prot Costs paid inc I • 'y thelBorrower. Ca alized terms used but not defined herein ve the eaning set forth i r IFIILoan greem t. In connection Requisition t r undersigned, as the Borrower's Authorized Representative, hereby represents and certifies the following: 1. Project name LAKE OSWEGO WASTEWATER TREATMENT FACILITY REPLACEMENT PROJECT 2. Borrower name CITY OF LAKE OSWEGO, OREGON 3. WIFIA Loan ID 21111OR 4. Borrower UEI Number YJJFCP3HM9L6 5. Borrower FEIN number m 93-6002231 6. Requisition number [ ] 7. Requested Disbursement amount $[ ] 8. Requested date of Disbursement [ ] (the "Disbursement Date")1 1 Note this should be the actual disbursement date on which the Borrower requests to receive the funds,not the date that this Requisition form is submitted to the WIFIA Lender. Exhibit D-1 9. Total amounts previously disbursed $[ ] under the WIFIA Loan Agreement 10. Wire or ACH transfer instructions(please [ ] specify method) 11. As of the date hereof, and immediately after giving effect to the Disbursement of WIFIA Loan proceeds requested under this Requisition, (a)no Default or Event of Default and no event of default under any other Related Document shall have occurred and be continuing and (b) no event that, with the giving of notice or the passage of time or both, would constitute an event of default under any other Related Document, shall have occurred and be continuing. 12. No Material Adverse Effect, or any event or condition that could reasonably be expected to have a Material Adverse Effect, has occurred since the Effective Date. 13. The aggregate amount of all Disbursements(including the requested Disbursement amount under this Requisition but excluding any interest that is capitalized in accordance with the WIFIA Loan Agreement)does not exceed(a)the maximum principal amount of the WIFIA Loan or(b)the amount of Eligible Project Costs paid or incurred by the Borrower. 14. The Eligib - ' -•- t Costs for which reim r semeF e`t is being requested has not been reim• sed o lid y any previous urse WIFIA Loan proceeds or(b) any other rce of d ng for the'Proj •ene Project Budget. 15. The Borro •r a • :ch f its co .c s and • '• at all ers with respect to the Project, h. 9 plied with all . 1 • cable law , gulati s and requirements, including 40 U.S.C. §§3141-3144, 3146, and 3147 (relating to Davis-Bacon Act requirements)(and regulations relating thereto)and 33 U.S.C. §3914(relating to American iron and steel products). Supporting documentation, such as certified payroll records and certifications for all iron and steel products used for the Project, are being maintained and are available for review upon request by the WIFIA Lender. 16. The representations and warranties of the Borrower set forth in the WIFIA Loan Agreement and in each other WIFIA Loan Document are true and correct as of the date hereof and as of the Disbursement Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case, such representations and warranties are true and correct as of such earlier date). 17. The Borrower has delivered all required deliverables under and in compliance with the requirements of Schedule V (Reporting Requirements), except as has been otherwise agreed by the WIFIA Lender. 18. The amount hereby being requested for Disbursement is with respect to Eligible Project Costs for which [all][a portion][none] of the Eligible Project Costs Documentation was previously submitted to and approved by the WIFIA Lender in accordance with Schedule IV(Requisition Procedures)and Schedule V(Reporting Requirements)of the WIFIA Loan Agreement. The [following table below][attached excel sheet] sets out a summary of any Exhibit D-2 Eligible Project Costs that have not otherwise been previously submitted to the WIFIA Lender for approval, and supporting Eligible Project Costs Documentation in respect of such new Eligible Project Costs is attached hereto.2 WIFIA USE ONLY Vendor Invoice Invoice Paymen Invoice WIFIA Activit Descriptio Approve Notes or Number Date t Date Amount Request y n of d Contrac a ed Type6 Activity' Amount tor Amount Name3 s 19. [Pursuant to Section 11(b)(iv) of the WIFIA Loan Agreement, the Borrower has delivered to the WIFIA Lender a copy of the Intergovernmental Agreement, which document is complete, fully executed, and in full force and effect.? 20. [The Borrower has demonstrated to the WIFIA Lender's satisfaction that(A)the National Historic Preservation Act Section 106 consultation process relating to the Project has concluded and B) the Borrower has not carried out ally destruction, excavation, mobilizati r o er gr d-d ing prior lo the coil sion o e NHPA Section 106 consul ation.]9 The undersigned acknowledges that if e Borrower makes a false, fictitious, or fraudulent claim, statement, submission, or certification tom Government in connections with the Project, the Government reserves the right to impose on the Borrower the penalties of 18 U.S.C. § 1001,to the extent the Government deems appropriate. Date: CITY OF LAKE OSWEGO, OREGON, 2 See Schedules IV,V and Exhibit E of the WIFIA Loan Agreement for additional details on EPC Documentation. 3 If seeking reimbursement for internal costs,enter"Internally financed activities." ' Vendor's number indicated on the invoice sent to the Borrower. 5 If the amount requested for reimbursement by the WIFIA Lender is less than the total amount of the invoice,include an explanation for the difference. 6 Specify whether activity is: (a) Development phase activity, which includes planning, preliminary engineering, design, environmental review, revenue forecasting and other pre-construction activities; (b) Construction, which includes construction, reconstruction, rehabilitation and replacement activities; (c) Acquisition of real property, which includes acquiring an interest in real property, environmental mitigation, construction contingencies and acquisition of equipment;(d)Carrying costs,including capitalized interest,as necessary to meet market requirements, reasonably required reserve funds,capital issuance expenses and other carrying costs during construction;(e)WIFIA fees,including for application and credit processing;or(f)Other,with an explanation in the"Description of Activity" column. Provide a brief description of the activities included in the invoice for which WIFIA funds are being requested and any other notes that will aid in the review of the disbursement request. 8 Include for the Requisition for the initial Disbursement. 9 Include for the Requisition for the initial Disbursement. Exhibit D-3 by its authorized representative By: Name: Title: D RA F T Exhibit D-4 EXHIBIT E FORM OF CERTIFICATION OF ELIGIBLE PROJECT COSTS DOCUMENTATION VIA EMAIL United States Environmental Protection Agency' 1200 Pennsylvania Avenue NW WJC-E 7334A Washington, D.C. 20460 Attention: WIFIA Director Email: WIFIA_Portfolio@epa.gov Re: Lake Oswego Wastewater Treatment Facility Replacement Project (WIFIA ID — 211110R) Ladies and Gentlemen: Pursuant to Part C of Schedule V(Reporting Requirements) of the WIFIA Loan Agreement, dated as of [ ], 2025 (the "WIFIA Loan Agreement"), by and between CITY OF LAKE OSWEGO, ORE I ► the " : • • . •r") andite UN ED S FTIRONMENTAL PROTECTION A " ,cti i sy an, rou Ad i is ra or e A Lender"), the Borrower hereby -sents t is certifica - connection w - :orrow 's delivery of Eligible Project Costs Doc entatisn to the W N A Lender. Capit. ►e. erms use but not defined herein have the meaning t fort• the WIFI \ oa�Agreet. L The undersigned does hereby represent and certify the following: 1. This certificate is being delivered to the WIFIA Lender in connection with the Eligible Project Costs during the period between [ ] and ] ] (the "Quarterly Period"). 2. A summary of the Eligible Project Costs incurred, invoiced and/or paid (as the case may be) is set out in the [attached excel sheet][table on the following page:] 'If there is a Servicer for the WIFIA Loan,provide a copy to the Servicer as well and include its notice details here. Exhibit E-1 WIFIA USE ONLY Vendor or Invoice Invoice Payment Invoice Activity Description Approved Notes Contractor Number3 Date Date Amount Type4 of Activity5 Amount Name2 3. The anticipated sources of funding for such Eligible Project Costs are [listed below][set forth in the attached excel sheet]. 4. Supporting Eligible Project Costs Documentation for the above Eligible Project Costs for the Quarterly Period are also attached hereto.6 5. The most recently delivered Construction Monitoring Report delivered in accordance with Part C of Schedule V (Reporting Requirements) sets out a summary of the progress of construction of the Project, no change has occurred since the date of such Construction Monitoring Report that could reasonably be expected to cause a Material Adverse Effect, and the Borrower is otherwise in compliance with Part C of Schedule V (Reporting Requirements). AR r71. Date: OF LAKE OSWEGO, OREGON,' By: Name: Title: 2 If the expectation is to seek reimbursement for internal costs,enter"Internally financed activities." 3 Vendor's number indicated on the invoice sent to the Borrower. 4 Specify whether activity is: (a) Development phase activity, which includes planning, preliminary engineering, design, environmental review, revenue forecasting and other pre-construction activities; (b) Construction, which includes construction, reconstruction, rehabilitation and replacement activities; (c) Acquisition of real property, which includes acquiring an interest in real property, environmental mitigation, construction contingencies and acquisition of equipment; (d) Carrying costs, including capitalized interest on other Project Obligations during construction,as necessary to meet market requirements,reasonably required reserve funds,capital issuance expenses and other carrying costs during construction; (e)WIFIA fees, including for application and credit processing; or(f) Other,with an explanation in the"Description of Activity"column. 5 Provide a brief description of the activities included in the invoice for which WIFIA funds are being requested and any other notes that will aid in the review of the documentation. 6 See Schedules IV and V of the WIFIA Loan Agreement for additional details on EPC Documentation. To be executed by the Borrower's Authorized Representative. Exhibit E-2 EXHIBIT F FORM OF CONSTRUCTION MONITORING REPORT VIA EMAIL United States Environmental Protection Agency 1200 Pennsylvania Avenue NW WJC-E 7334A Washington, DC 20460 Attn: WIFIA Director Email: WIFIA_Portfolio@epa.gov Re: Lake Oswego Wastewater Treatment Facility Replacement Project(WIFIA ID—21111 OR) This Construction Monitoring Report for the period of [insert relevant quarterly period] (the "Quarterly Period") is provided pursuant to Part D of Schedule V (Reporting Requirements) of the WIFIA Loan Agreement, dated as of[ ], 2025 (the"WIFIA Loan Agreement"),by and between CITY OF LAKE OSWEGO, OREGON, (the "Borrower") and the UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, acting by and through the Administrator of the Environmental Protection gent " IFIA nder"). Unless otherwise defined herein, all capitalized terms i this nstru tion itof eport have the mea ings assigned to those terms in the WIFI: Loan Agree 1. Project St L ' ide narrat s mary h roject's cons ction progress during the Quarter y •eriod, inc uding wi respect to the Project components or sub-projects where appropriate. Complete the table in Appendix A to update the Project scope, schedule, and costs with the latest information. 2. Current Projected Substantial Completion Date: If the current Projected Substantial Completion Date differs than the date set forth in the Construction Monitoring Report most recently delivered to the WIFIA Lender (or, if no such report has yet been provided, the date of the Projected Substantial Completion Date set forth in the WIFIA Loan Agreement as of the Effective Date),provide a description in reasonable detail for such projected delay or difference: 3. Material Problems (if any) Exhibit F-1 Note any problems encountered or anticipated during the construction of the Project during the Quarterly Period that (1) impedes Project completion within the scope, costs, and schedule outlined in the WIFIA Loan Agreement or (2) relates to unforeseen complications in connection with the construction of the Project. This may include commissioning/start-up issues, constructability issues for the Project as planned, adverse impacts to Project surroundings, changes in or issues with meeting environmental or federal compliance requirements, and unanticipated or abnormal permit approval timelines. Include an assessment of the impact and any current plans to address the problems. 4. Other Matters Related to the Project(if applicable) Date: CITY OF LAKE OSWEGO, OREGON, ame: Title: Exhibit F-2 APPENDIX A' Project Scope Project Schedule Project Costs Estimate Bid Original d Estimate Costs Project Complet Contract Advertis Contract NTP Substant Substant Original d Costs Earned Compon Award Effective ial Contract to ent ed(Y/N) /Vendor ement Date Date Completi ial or Paid Amount Complet Date on Date Completi e to Date on Date Total Table Definitions: Project Component— project name or ID as tracked by the borrower Complete (Y/N)—indication that project is complete, and no additional updates will be provided Description(program of projects only)—brief overview of scope of work for the project component. Location (progra is oi'li'�—physical p, 'ct bou Covered by existi NEPA? (program of projec • )— er to the envi nmental review documents that is basis for the NEPA findi, , 'e p hin th eographic scope and scope of activities scribed in the document Contract/Vendor—the contract identifier and contractor that is/will be completing the project construction. Bid Advertisement Date—the date the bid was advertised Contract Award date—the date the contract was awarded NTP Effective date—the effective date to proceed with the construction in the Notice to Proceed Original Substantial Completion Date—the substantial completion date for the given project as noted in the original contract award Estimated Substantial Completion Date—the latest date estimate for substantial completion for the given project component Original Contract Amount—the original contract award amount Estimated Costs to Complete—the latest cost estimates to complete the given project component Costs Earned or Paid to Date—the latest incurred contract costs for the given project component Total—Total the cost amounts across all project components and contracts 1 Appendix A summarizes all project components that will be bid in the next quarter,are currently under construction, or have completed construction. It should be a cumulative list of projects that is updated each quarter. A Microsoft Excel spreadsheet with similar table format is acceptable. Exhibit F-3 EXHIBIT G FORM OF CERTIFICATE OF SUBSTANTIAL COMPLETION [Letterhead of Borrower] [Date] VIA EMAIL United States Environmental Protection Agency 1200 Pennsylvania Avenue NW WJC-E 7334A Washington, DC 20460 Attn: WIFIA Director Email: WIFIA_Portfolio@epa.gov Project: Lake Oswego Wastewater Treatment Facility Replacement Project (WIFIA ID — 211110R) Dear Director: This Notice is provided ursuant to Part E of Schedule V(Reporting Requirements) of that certain WIFIA Loan Agr (the "WIFIA oan eement"),mil of [ 'I ], 2025, by and between CITY 0 AKE OSWEGO, O G he "Borrower") and e UNITED STATES ENVIRONMENT PROTEC 0 GEN , acting hroug is Administrator (the "WIFIA Lender' Unless otherwise defined herein,all capitalized terms in this certificate have the meanings assigned to those terms in the WIFIA Loan Agreement. I, the undersigned, in my capacity as the Borrower's Authorized Representative and not in my individual capacity, do hereby certify to the WIFIA Lender that: (a) the Project has satisfied each of the requirements for Substantial Completion set forth in the Construction Contracts; (b) Substantial Completion has been declared under each of the relevant Construction Contracts and copies of the notices of Substantial Completion under such agreements are attached to this certification; (c) Substantial Completion, as defined in the WIFIA Loan Agreement, has been achieved and the Substantial Completion Date is [ ]; and (d) The total federal assistance provided to the Project, including the maximum principal amount of the WIFIA Loan (excluding any interest that is capitalized in accordance with the terms hereof), does not exceed eighty percent(80%) of Total Project Costs. Exhibit G-1 CITY OF LAKE OSWEGO, OREGON, by its authorized representative By: Name: Title: D RA F T Exhibit G-2 EXHIBIT H-1 OPINIONS REQUIRED FROM GENERAL COUNSEL TO BORROWER An opinion of the counsel of the Borrower, dated as of the Effective Date,to the effect that: (a) the Borrower is a validly existing municipal corporation of the State of Oregon; (b)the Borrower has all requisite power and authority to conduct its business and to execute and deliver,and to perform its obligations under the WIFIA Loan Documents to which it is a party; (c) the execution and delivery by the Borrower of, and the performance of its respective obligations under, the WIFIA Loan Documents to which it is a party, have been duly authorized by all necessary organizational or regulatory action, and other than the Borrower's Organizational Documents, no further instruments or documents are necessary for the Borrower to execute and deliver, and to perform its obligations under, the WIFIA Loan Documents to which it is a party and to consummate and implement the transactions contemplated by the WIFIA Loan Documents; (d)the Borrower has duly executed and delivered each WIFIA Loan Document to which it is a party and each such WIFIA Loan Document constitutes the legal,valid and binding obligation of such party; enforceable against such •arty in accordance with their res ective terms; (e)no auth *zation, n• t,or o' •r ap of,o egistration,declaration or other filing with any governmental authority . ..nited State f A of the State is required on the part of the Borrower for the execution : delivery by Alc arty of, and the performance of such party under, any WIFIA Loan Document - v rich it is W other than authorizations, consents, approvals, registrations, declarations and filings that have already been timely obtained or made by the Borrower; (f) the execution and delivery by the Borrower of, and compliance with the provisions of, the WIFIA Loan Documents to which it is a party in each case do not(i)violate the Organizational Documents of the Borrower, (ii) violate the law of the United States of America or of the State or (iii) conflict with or constitute a breach of or default under any material agreement or other instrument known to such counsel to which the Borrower is a party,or to the best of such counsel's knowledge, after reasonable review, any court order, consent decree, statute, rule, regulation or any other law to which the Borrower is subject; (g) the Borrower is not an investment company required to register under the Investment Company Act of 1940, as amended; and (h) to the knowledge of such counsel after due inquiry, there are no actions, suits, proceedings or investigations against the Borrower by or before any court, arbitrator or any other Governmental Authority in connection with the Related Documents or the System (including the Project) that are pending. Exhibit H 1-1 EXHIBIT H-2 OPINIONS REQUIRED FROM BOND COUNSEL TO BORROWER An opinion of bond counsel, dated as of the Effective Date, to the effect that: (a)the Borrower has been duly created and validly exists as a municipal corporation of the State under and pursuant to the laws of the State (including Oregon Revised Statutes Section [287A.315], as amended to the date hereof) (the "Borrower Act"), with good right and power to issue the WIFIA Note; (b) the Borrower has the right and power under the laws of the State, including the Borrower Act, to enter into the WIFIA Loan Documents and the WIFIA Note, and each has been duly authorized, executed and delivered by the Borrower,is in full force and effect, and constitutes a legal, valid and binding agreement of the Borrower enforceable against the Borrower in accordance with its respective terms and conditions; (c) the WIFIA Note (i) is secured by the Pledge, (ii) is enforceable under the laws of the State without any further action by the Borrower or any other Person, and(iii)ranks pari passu in right of payment and right of security with all other Obligations; (d)pursuan n IZtatutes S ion [2, - . , Loan Agreement creates a valid and bindin full faith and credit pledge o i the Borrower Pledged Revenues to secure the payment of the 2rincipa interest on, and o I I er unts p able in respect of the WIFIA Note, irrespective whither a pa has noLf e 1 f the pledge without the need for any physical delivery,recordatioit filing oher act.iltrstiint to the Ple ,which is an absolute and unconditional obligation of the Borrower, the Borrower has pledged its full faith and credit and revenue-raising power (including taxing power) to make the payments due under the WIFIA Note.; (e) all actions by the Borrower that are required for the application of Pledged Revenues as required under the WIFIA Loan Documents have been duly and lawfully made; (f) the Borrower has complied with the requirements of State law to lawfully grant the Pledge and use the Pledged Revenues as required by the terms of the WIFIA Loan Agreement; (g) the Borrower is not eligible to be a debtor in either a voluntary or involuntary case under the United States Bankruptcy Code; and (h) the Borrower is not entitled to claim governmental immunity in any breach of contract action under the WIFIA Loan Agreement or the WIFIA Note. Exhibit H2-1 2913213.7 042000 DRFT