HomeMy WebLinkAboutCC Reso No 2018-099 Banc of America Leasing & Capital LLCRESOLUTION NO. 2018 -099
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LAKE ELSINORE, CALIFORNIA,
AUTHORIZING THE EXECUTION AND DELIVERY OF: (1) EQUIPMENT LEASE /PURCHASE
AGREEMENT WITH BANC OF AMERICA LEASING & CAPITAL LLC; (2) ESCROW AND
ACCOUNT CONTROL AGREEMENT WITH BANC OF AMERICA LEASING & CAPITAL LLC
AND WILMINGTON TRUST, NATIONAL ASSOCIATION; (3) PAYING AGENT AGREEMENT
WITH BANC OF AMERICA LEASING & CAPITAL LLC, WESTERN RIVERSIDE COUNCIL
OF GOVERNMENTS AND WILMINGTON TRUST, NATIONAL ASSOCIATION; (4)
IMPLEMENTATION AGREEMENT WITH WESTERN RIVERSIDE COUNCIL OF
GOVERNMENTS; AND AUTHORIZING CERTAIN ACTIONS IN CONNECTION THEREWITH
Whereas, the City of Lake Elsinore (City) is a municipal corporation duly organized and existing under and
pursuant to the Constitution and laws of the State of California; and
Whereas, the City desires to finance certain improvements (Improvements) consisting of the acquisition
of certain street lights and the installation of certain energy savings equipment thereto as described in that
certain Purchase and Sale Agreement dated May 30, 2017 (Purchase Agreement) by and between the
City and Southern California Edison, a California corporation; and
Whereas, the City desires to provide for financing in the approximate amount of $3,500,000.00 for the
acquisition and installation of the Improvements; and
Whereas, Banc of America Leasing & Capital LLC (Banc of America) has proposed a cost - effective lease
purchase financing arrangement for the acquisition and installation of the Improvements, as set forth under
the Equipment Lease /Purchase Agreement (Agreement) between Banc of America and the City, the form
of which has been presented to the Council and is on file with the City Clerk; and
Whereas, in connection with the execution and delivery of the Agreement, it will be necessary for the City
to enter into an Escrow and Account Control Agreement (Escrow Agreement) among the City, Banc of
America and Wilmington Trust, National Association, as escrow agent, the form of which has been
presented to the Council and is on file with the City Clerk; and
Whereas, the City has determined that this lease financing arrangement is the most economical means
for providing the Improvements to the City; and
Whereas, as a condition of the Agreement, the City must properly maintain, repair and replace such
streetlights (Services) during the term of the Lease Agreement; and
Whereas, the City believes that it can achieve economies of scale for such Services if the City authorizes
Western Riverside Council of Governments ( WRCOG) to administer the Services on behalf of the City and
other member agencies of WRCOG; and
Whereas, to allow WRCOG to administer the Services, the City must enter into an Implementation
Agreement (Implementation Agreement) with WRCOG, the form of which has been presented to the City
and is on file with the City Clerk; and
Whereas, the City desires to enter into the Paying Agent Agreement (Paying Agent Agreement) with Banc
of America and Wilmington Trust, National Association, and WRCOG pursuant to which funds deposited
in accordance with the Agreement and Implementation Agreement will be held and disbursed, the form of
which has been presented to the City and is on file with the City Clerk.
NOW, THEREFORE, IT IS HEREBY RESOLVED BY THE CITY COUNCIL OF THE CITY OF LAKE
ELSINORE AS FOLLOWS:
Section 1. CEQA. Based upon its review of the entire record before the City Council (Council), the Council
in its role as a CEQA responsible agency hereby finds and determines that the proposed Agreement and
Escrow Agreement, as part of the Project authorized in the Implementation Agreement between the City
and the WRCOG, is categorically exempt from environmental review under CEQA pursuant to State CEQA
Guidelines §§ 15301, 15302, 15303 and 15061(b)(3).
The Class 1 exemption specifically exempts from further CEQA review the operation, repair, maintenance,
and minor repair of existing public or private structures, involving negligible or no expansion of use beyond
that existing at the time of the lead agency's determination. The lease financing arrangement will provide
Improvements that require the maintenance on existing streetlights and does not involve an expansion of
the floor area of the structures. The replacement of the bulbs to high- efficiency bulbs is a minor alteration.
It does not change the use of the street lights, and is more beneficial in terms of reduced energy use and
improved public safety. The Class 2 exemption specifically exempts from further CEQA review the
replacement or reconstruction of existing structures and facilities where the new structure will be located
on the same site as the structure replaced and will have substantially the same purpose and capacity as
the structure replaced. The Improvements will have the same purpose as the existing streetlights and the
new LED bulbs will not exceed the capacity of the existing bulbs. The Class 3 exemption specifically
exempts from further CEQA review the construction and location of limited numbers of new, small facilities
or structures;, installation of small new equipment and facilities in small structures; and the conversion of
existing small structures from one use to another where only minor modifications are made to the exterior
of the structure. The Improvements include the installation of new LED bulbs in existing small structures
and general maintenance in accordance with the Class 3 exemption.
None of the exceptions to the use of the Class 1, 2 or 3 categorical exemptions identified in State CEQA
Guidelines section 15300.2 apply. The Improvements include the retrofitting of light poles within the City's
jurisdiction, but none are located in a particularly sensitive environment and therefore there would not be
impacts on an environmental resource of hazardous or critical concern. The Improvements will not result
in a cumulative impact from successive projects of the same type in the same place, over time, as they
entail the upgrade of bulbs on all currently owned SCE fixtures within the City's jurisdiction. There are no
unusual circumstances surrounding the Improvements that result in a reasonable possibility of a significant
effect on the environment, as there are no sensitive resources on the existing pole sites and the
Improvements do not involve structural modifications. The replacement of bulbs and maintenance of
existing structures will not damage scenic resources, including trees, historic buildings, rock outcroppings,
or similar resources. The Improvements will not take place on any hazardous waste sites or cause a
substantial adverse change in the significance of a historical resource as the existing poles are not
considered historical resources. Thus, the categorical exemptions apply, and no further environmental
review is required. The Improvements to be provided as part of the lease financing arrangement are also
exempt from CEQA pursuant to State CEQA Guidelines Section 15061(b)(3), which exempts a Project if
"the activity is covered by the general rule that CEQA applies only to projects which have the potential for
causing a significant effect on the environment. Where it can be seen with certainty that there is no
possibility that the activity in question may have a significant effect on the environment, the activity is not
subject to CEQA." The execution of the Agreement and Escrow Agreement regarding the Improvements
project involves replacing existing light bulbs in City's jurisdictions with LED technology bulbs. The
Improvements do not involve an expansion of use or the bulbs' capacity. Accordingly, there is no possibility
that obtaining financing for the replacement of bulbs will have a significant effect on the environment.
Section 2. Authorization and Approval of Agreement, 1 =scrow Agreement. Implementation Agreement and
Laving Agent Agreement. The Council hereby approves and authorizes the City to enter into (a) the
Agreement in a principal amount which shall not exceed $3,500,000.00 in the form attached hereto as
Exhibit A and incorporated hereby by reference, together with any changes therein or additions thereto
which are deemed advisable by the City Manager, (b) the Escrow Agreement in the form attached hereto
as Exhibit B and incorporated hereby by reference, together with any changes therein or additions thereto
which are deemed advisable by the City Manager (c) the Implementation Agreement in the form attached
hereto as Exhibit C and incorporated hereby by reference, together with any changes therein or additions
thereto which are deemed advisable by the City Manager and (d) the Paying Agent Agreement in the form
attached hereto as Exhibit D and incorporated hereby by reference, together with any changes therein or
additions thereto which are deemed advisable by the City Manager. The City Manager is authorized and
directed to take all steps and actions which are necessary to accomplish execution of the Agreement, the
Escrow Agreement, the Implementation Agreement and Paying Agent Agreement pursuant to the
authorization given by and the conditions specified in this resolution. The City Manager, or his designee,
is authorized to execute the Agreement, the Escrow Agreement, the Implementation Agreement, the
Paying Agent Agreement, and appendices to the Professional Services Agreement and Equipment
Purchase Agreement between WRCOG and Siemens Industry, Inc. for and on behalf of the City.
Section 3. Attestations. The City Clerk or other appropriate City officer is hereby authorized and directed
to attest the signature of the City Manager or of such other person or persons as may have been
designated by the City Manager, and to affix and attest the seal of the City, as may be required or
appropriate in connection with the execution and delivery of the Agreement, the Escrow Agreement, the
Implementation Agreement and the Paying Agent Agreement.
Section 4. Other Actions. The City Manager and his designees are each hereby authorized and directed,
jointly and severally, to take any and all actions and to execute and deliver any and all agreements,
documents and certificates which they may deem necessary or advisable in order to carry out, give effect
to and comply with the terms of this Resolution, the Agreement, the Escrow Agreement, the
Implementation Agreement and the Paying Agent Agreement. Such actions are hereby ratified, confirmed
and approved.
Section 5. General. Liability. Nothing contained in this Resolution, the Agreement, the Escrow Agreement
nor any other instrument shall be construed with respect to the City, as Lessee, as incurring a pecuniary
liability or charge upon the general credit of the City, as Lessee, or against its taxing power, nor shall the
breach of any agreement contained in this Resolution, the Agreement, the Escrow Agreement or any other
instrument or document executed in connection therewith impose any pecuniary liability upon the City, as
Lessee, or any charge upon its general credit or against its taxing power, except to the extent that the
Rental Payments payable under the Agreement are limited obligations of the City, as Lessee, subject to
annual appropriation by its governing body, as provided in the Agreement.
Section F. Appointment of Authorized Lessee Representatives. The City Manager and her or his designee
(Authorized Representatives) are each hereby designated to act as authorized representatives of the City,
as Lessee, for purposes of the Agreement and the Escrow Agreement until such time as the governing
body of the City, as Lessee shall designate any other or different authorized representative for purposes
of the Agreement or the Escrow Agreement.
Section 7. Severability. If any section, paragraph, clause or provision of this Resolution shall for any reason
be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause
or provision shall not affect any of the remaining provisions of this Resolution.
Section 8. Realer. All bylaws, orders and resolutions or parts thereof, inconsistent herewith, are hereby
repealed to the extent only of such inconsistency. This repealer shall not be construed as reviving any
bylaw, order, Resolution or Ordinance or part thereof.
Section 9. Location and Custodian of Records. The documents and materials associated with the action
that constitute the record of proceedings on which these findings are based are located at the City of Lake
Elsinore, City Clerk's Department, Lake Elsinore, California.
Section 10. Notice of Exemption. The Council hereby directs staff to prepare and the City Clerk to file a
Notice of Exemption with the Riverside County Clerk within five working days of the approval of the
proposed project.
Section 11. Effect. This Resolution shall take effect immediately upon its passage.
Section 12. The City Clerk shall certify to the adoption of this Resolution and enter it into the book of
original Resolutions.
Passed and Adopted on this 10th day of July 2018.
Mayor
Attest:
Susan M. Domen, MMC
City Clerk
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF LAKE ELSINORE )
Johnson
I, Susan M. Domen, MMC, City Clerk of the City of Lake Elsinore, California, do hereby certify that
Resolution No. 2018 -099 was adopted by the City Council of the City of Lake Elsinore, California, at the
Regular meeting of July 24, 2018, and that the same was adopted by the following vote:
AYES: Council Members Hickman, Magee and Tisdale; Mayor Pro -Tem Manos and Mayor Johnson
NOES: None
ABSENT: None
ABSTAIN: None
r
Susan M. Domen, MMC
City Clerk
EXHIBIT I
[Form of] Escrow and Account Control Agreement
This Escrow an
d
-I
limited liability company
"Lessor "),
Account Control Agreement (this "Agreement "), dated as of
by and among Banc of America Leasing & Capital, LLC, a Delaware
(together with its successors and assigns, hereinafter referred to as
. a [city] [county] [special district] [body corporate and politic]
existing under the laws of the State of California (hereinafter referred to as "Lessee ") and
Wilmington Trust, National Association, a _ (and any successor escrow
agent, the "Escrow Agent ").
Reference is made to that certain Equipment Lease /Purchase Agreement dated as of
between Lessor and Lessee (hereinafter referred to as the "Lease "),
covering the acquisition and lease of certain Equipment described therein (the "Equipment "). It is
a requirement of the Lease that the Acquisition Amount ($ ) be deposited
into a segregated escrow account under terms satisfactory to Lessor, for the purpose of fully
funding the Lease, and providing a mechanism for the application of such amounts to the purchase
of and payment for the Equipment.
NOW, THEREFORE, in consideration of the mutual promises contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. Creation of Escrow Account.
(a) There is hereby created an escrow fund to be known as the
" Escrow Account" (the "Escrow Account ") to be held by the Escrow
Agent for the purposes stated herein, for the benefit of Lessor and Lessee, to be held, disbursed
and returned in accordance with the terms hereof.
(b) Lessee may, from time to time, provide written instructions for Escrow
Agent to use any available cash in the Escrow Account to purchase any money market fund or
liquid deposit investment vehicle that Escrow Agent from time to time makes available to the
parties hereto. Such written instructions shall be provided via delivery to Escrow Agent of a signed
and completed Escrow Account Investment Selection Form (such form available from Escrow
Agent upon request). All funds invested by Escrow Agent at the direction of Lessee in such short -
term investments shall be deemed to be part of the Escrow Account and subject to all the terms
and conditions of this Agreement. If any cash is received for the Escrow Account after the cut -off
time for the designated short -term investment vehicle, the Escrow Agent shall hold such cash
uninvested until the next Business Day. In the absence of written instructions designating a short -
term investment for cash, cash in the Escrow Account shall remain uninvested. Escrow Agent
shall have no obligation to pay interest on cash in respect of any period during which it remains
uninvested. Lessee shall be solely responsible for ascertaining that all proposed investments and
reinvestments are Qualified Investments (defined below) and that they comply with federal, state
and local laws, regulations and ordinances governing investment of such funds and for providing
appropriate notice to the Escrow Agent for the reinvestment of any maturing investment.
2018 -099 Agreement
2251726
Accordingly, the Escrow Agent shall not be responsible for any liability, cost, expense, loss or
claim of any kind, directly or indirectly arising out of or related to the investment or reinvestment
of all or any portion of the moneys on deposit in the Escrow Account pursuant to Lessee's
instructions, and Lessee agrees to and does hereby release the Escrow Agent from any such
liability, cost, expenses, loss or claim with respect to such investment pursuant to Lessee's
instructions. Notwithstanding anything herein to the contrary, Lessor shall not be responsible for
any liability, cost, expense, loss or claim of any kind, directly or indirectly arising out of or related
to the investment or reinvestment of all or any portion of the moneys on deposit in the Escrow
Account, and Lessee agrees to and does hereby release the Lessor from any such liability, cost,
expenses, loss or claim. Interest on the Escrow Account shall become part of the Escrow Account,
and gains and losses on the investment of the moneys on deposit in the Escrow Account shall be
borne by the Escrow Account. The Escrow Agent shall have no discretion whatsoever with respect
to the management, disposition or investment of the Escrow Account. The Escrow Agent shall
not be responsible for any market decline in the value of the Escrow Account and has no obligation
to notify Lessor and Lessee of any such decline or take any action with respect to the Escrow
Account, except upon specific written instructions stated herein. For purposes of this Agreement,
"Qualified Investments" means any investments which meet the requirements of [California
Government Code Sections 53600 et seq].I
(c) Unless the Escrow Account is earlier terminated in accordance with the
provisions of paragraph (d) below, amounts in the Escrow Account shall be disbursed by the
Escrow Agent in payment of amounts described in Section 2 hereof upon receipt of written
instruction(s) from Lessor, as is more fully described in Section 2 hereof. If the amounts in the
Escrow Account are insufficient to pay such amounts, Lessee shall deposit into the Escrow
Account any funds needed to complete the acquisition of the Equipment from legally available
funds; provided, that if such legally available funds will be insufficient to complete the acquisition
of the Equipment, then Lessee shall promptly notify Lessor of such deficiency in writing. Any
moneys remaining in the Escrow Account on or after the earliest of (i) the expiration of the
Acquisition Period, (ii) the date on which Lessee executes an Acceptance Certificate or (iii) the
date on which the Lessee delivers to the Escrow Agent the executed Disbursement Request to
effect the final disbursement to pay (or reimburse) Equipment Costs from the Escrow Account
shall be applied as provided in Section 4 hereof.
(d) The Escrow Account shall be terminated at the earliest of (i) the final
distribution of amounts in the Escrow Account, (ii) the date on which Lessee executes an
Acceptance Certificate or (iii) written notice given by Lessor of the occurrence of an Event of
Default under the Lease or termination of the Lease due to an Event of Non - Appropriation.
Notwithstanding the foregoing, this Agreement shall not terminate nor shall the Escrow Account
be closed until all funds deposited hereunder have been disbursed.
(e) The Escrow Agent may act in reliance upon any writing or instrument or
signature which it, in good faith, believes to be genuine and may assume the validity and accuracy
of any statement or assertion contained in such a writing or instrument. The Escrow Agent shall
not be liable in any manner for the sufficiency or correctness as to form, manner of execution, or
To be confirmed by Lessee's counsel.
%J
validity of any instrument nor as to the identity, authority, or right of any person executing the
same; and its duties hereunder shall be limited to the receipt of such moneys, instruments or other
documents received by it as the Escrow Agent, and for the disposition of the same in accordance
herewith. Notwithstanding and without limiting the generality of the foregoing, concurrent with
the execution ofthis Agreement, Lessee and Lessor, respectively, shall deliverto the Escrow Agent
an authorized signers form in the form of Exhibit A -1 (Lessee) and Exhibit A -2 (Lessor) attached
hereto. Notwithstanding the foregoing sentence, the Escrow Agent is authorized to comply with
and rely upon any notices, instructions or other communications believed by it to have been sent
or given by the parties or by a person or persons authorized by the parties which comply with the
terms and conditions set forth herein. The Escrow Agent specifically allows for receiving direction
(including in form required by Section 2, as applicable) by written or electronic transmission from
an authorized representative with the following caveat, Lessee and Lessor agree to indemnify and
hold harmless the Escrow Agent against any and all claims, losses, damages, liabilities, judgments,
costs and expenses (including reasonable attorneys' fees) (collectively, "Losses ") incurred or
sustained by the Escrow Agent as a result of or in connection with the Escrow Agent's reliance
upon and compliance with such instructions or directions given by written or electronic
transmission given by each, respectively, provided, however, that such Losses have not arisen from
the gross negligence or willful misconduct of the Escrow Agent, it being understood that
forbearance on the part of the Escrow Agent to verify or confirm that the person giving the
instructions or directions, is, in fact, an authorized person shall not be deemed to constitute gross
negligence or willful misconduct.
In the event conflicting instructions as to the disposition of all or any portion of the
Escrow Account are at any time given by Lessor and Lessee, the Escrow Agent shall abide by the
instructions or entitlement orders given by Lessor without consent of the Lessee or exercise its
rights under (g) below. Escrow Agent shall notify Lessee of such conflicting instructions as soon
as it becomes aware of such conflict. Escrow Agent shall notify Lessee if it is unable to follow its
instructions.
(f) Unless the Escrow Agent is guilty of negligence or misconduct with regard
to its duties hereunder, Lessee agrees to and does hereby release and indemnify the Escrow Agent
and hold it harmless from any and all claims, liabilities, losses, actions, suits or proceedings at law
or in equity, or any other expense, fees or charges of any character or nature, which it may incur
or with which it may be threatened by reason of its acting as Escrow Agent under this Agreement;
and in connection therewith, does (to the fullest extent authorized by State law) indemnify the
Escrow Agent against any and all expenses; including reasonable attorneys' fees and the cost of
defending any action, suit or proceeding or resisting any claim.
(g) If Lessee and Lessor shall be in disagreement about the interpretation of the
Lease, or about the rights and obligations, or the propriety of any action contemplated by the
Escrow Agent hereunder, the Escrow Agent may, but shall not be required to, file an appropriate
civil action including an interpleader action to resolve the disagreement. The Escrow Agent shall
be reimbursed by Lessee for all costs, including reasonable attorneys' fees, in connection with
such civil action, and shall be fully protected in suspending all or part of its activities under the
Lease until a final judgment in such action is received.
(h) Unless determined in a court of competent jurisdiction that it engaged in
willful misconduct or acted in bad faith, any action or non - action asserted by Escrow Agent to
have been taken by it on the advice of reasonably selected outside counsel shall be presumed not
to have constituted gross negligence, willful misconduct or bad faith. Escrow Agent shall not be
liable for any mistake of fact or error in judgment unless such mistake of fact or error in judgment
is determined by a court of competent jurisdiction to have been made in bad faith.
(i) Lessee shall (to the extent permitted by law and from legally available
funds) reimburse the Escrow Agent for all reasonable costs and expenses, including those of the
Escrow Agent's attorneys, agents and employees incurred for non - routine administration of the
Escrow Account and the performance of the Escrow Agent's powers and duties hereunder in
connection with any Event of Default under the Lease, any termination of the Lease due to an
Event of Non - Appropriation or in connection with any dispute between Lessor and Lessee
concerning the Escrow Account.
0) The Escrow Agent or any successor may at any time resign by giving mailed
notice to Lessee and Lessor of its intention to resign and of the proposed date of resignation (the
"Effective Date "), which shall be a date not less than 60 days after such notice is delivered to an
express carrier, charges prepaid, unless an earlier resignation date and the appointment of a
successor shall have been approved by the Lessee and Lessor. After the Effective Date, the Escrow
Agent shall be under no further obligation except to hold the Escrow Account in accordance with
the terms of this Agreement, pending receipt of written instructions from Lessor regarding further
disposition of the Escrow Account.
(k) The Escrow Agent shall have no responsibilities, obligations or duties other
than those expressly set forth in this Agreement and no implied duties responsibilities or
obligations shall be read into this Agreement.
2. Acquisition of Property.
(a) Acquisition Contracts. Lessee will arrange for, supervise and provide for,
or cause to be supervised and provided for, the acquisition of the Equipment, with moneys
available in the Escrow Account. Lessee represents the estimated costs of the Equipment are
within the funds estimated to be available therefor, and Lessor makes no warranty or representation
with respect thereto. Lessor shall have no liability under any of the acquisition or construction
contracts. Lessee shall obtain all necessary permits and approvals, if any, for the acquisition,
equipping and installation of the Equipment, and the operation and maintenance thereof. Escrow
Agent shall have no duty to monitor or enforce Lessee's compliance with the foregoing covenant.
(b) Authorized Escrow Account Disbursements. It is agreed as between Lessee
and Lessor that disbursements from the Escrow Account shall be made for the purpose of paying
(including the reimbursement to Lessee for advances from its own funds to accomplish the
purposes hereinafter described) the cost of acquiring the Equipment.
(c) Requisition Procedure. No disbursement from the Escrow Account shall be
made unless and until Lessor has approved such requisition. Lessor shall accept or deny a
Disbursement Request within three (3) business days of receipt of the Disbursement Request. No
4
disbursement from the Escrow Account shall be made to pay all or any portion of the Purchase
Price (as defined in the Pole Agreement) to Southern California Edison (or to reimburse Lessee
for its payment of all or any portion of said Purchase Price to Southern California Edison), until
Lessor has received (i) the [applieable12 completed and signed Provision of Detail of True -Up
Process [and Request for True -Up Amendment] in the form of Exhibit K to the Lease and Lessee
has satisfied the applicable covenants set forth in Section 2.01(r) of the Lease and (ii) invoices and
bills of sale relating to all the property, equipment and streetlights purchased or reimbursed (or to
be purchased or reimbursed) with the proceeds of such disbursement and the payment of such
Purchase Price. Prior to disbursement from the Escrow Account there shall be filed with the
Escrow Agent a requisition for such payment in the form of Disbursement Request attached hereto
as Schedule 1, stating each amount to be paid and the name of the person, firm or corporation to
whom payment thereof is due and the manner of disbursement (check or wire). The Escrow Agent
is authorized to obtain and rely on confirmation of such Disbursement Request and payment
instructions by telephone call -back to the person or persons designated for verifying such requests
on Exhibit A -2 (such person verifying the request shall be different than the person initiating the
request). The Lessor and Lessee hereby confirm that any call -back performed by Escrow Agent
to verify a disbursement instruction pursuant to a Disbursement Request submitted pursuant to this
Section 2(c) before release, shall be made to Lessor only and Escrow Agent shall have no
obligation to call -back Lessee.
Each such requisition shall be signed by an authorized representative of Lessee (an
"Authorized Representative ") and by Lessor, and shall be subject to the following conditions,
which Escrow Agent shall conclusively presume have been satisfied at such time as a requisition
executed by Lessee and Lessor is delivered to it:
1. Delivery to Lessor of an executed Disbursement Request in the form
attached hereto as Schedule 1 and providing Lessor with certification of all
such representations and other items as contained in said form;
2. Delivery to Lessor of invoices (and proofs of payment of such invoices, if
Lessee seeks reimbursement) and bills of sale (relating to the purchase of
Equipment and showing title transferring to Lessee) therefor as required by
Section 2.01(r) and Section 3.04 of the Lease and any additional
documentation reasonably requested by Lessor; and
The disbursement shall occur during the Acquisition Period.
Lessee and Lessor agree that their execution of the form attached hereto as Schedule 1 and
delivery of the executed form to Escrow Agent confirms that all of the requirements and conditions
with respect to disbursements set forth in this Section 2 have been satisfied.
3. Deposit to Escrow Account. Upon satisfaction of the conditions specified in
Section 3.04 of the Lease, Lessor will cause the Acquisition Amount to be deposited in the Escrow
Account. Lessee agrees to pay any costs with respect to the Equipment in excess of amounts
available therefor in the Escrow Account with legally available funds; provided, that if such legally
2 Include for multi -phase PSAs.
available funds will be insufficient to complete the acquisition of the Equipment, then Lessee shall
promptly notify Lessor of such deficiency in writing.
4. Excessive_ Escrow Account. Upon receipt of written instructions from Lessor
including a representation that one of the following conditions has been satisfied (upon which
representation Escrow Agent shall conclusively rely), any funds remaining in the Escrow Account
on or after the earliest of (a) the expiration of the Acquisition Period, (b) the date on which Lessee
executes an Acceptance Certificate, (c) the date on which the Lessee delivers to the Escrow Agent
the executed Disbursement Request to effect the final disbursement to pay (or reimburse)
Equipment Costs from the Escrow Account, or (d) upon a termination of the Escrow Account as
otherwise provided herein, shall be distributed by the Escrow Agent to the Lessor in order for the
Lessor to apply such funds to amounts owed by Lessee under the Lease in accordance with
Section 4.05 of the Lease.
5. Seeurlly Interest. The Escrow Agent and Lessee acknowledge and agree that the
Escrow Account and all proceeds thereof are being held by Escrow Agent for disbursement or
return as set forth herein. Lessee hereby grants to Lessor a first priority perfected security interest
in the Escrow Account, and all proceeds thereof, and all investments made with any amounts in
the Escrow Account. If the Escrow Account, or any part thereof, is converted to investments as
set forth in this Agreement, such investments shall be made in the name of Escrow Agent and the
Escrow Agent hereby agrees to hold such investments as bailee for Lessor so that Lessor is deemed
to have possession of such investments for the purpose of perfecting its security interest.
6. Control of Escrow Account. In order to perfect Lessor's security interest by means
of control in (i) the Escrow Account established hereunder, (ii) all securities entitlements,
investment property and other financial assets now or hereafter credited to the Escrow Account,
(iii) all of Lessee's rights in respect of the Escrow Account, such securities entitlements,
investment property and other financial assets, and (iv) all products, proceeds and revenues of and
from any of the foregoing personal property (collectively, the "Collateral "), Lessor, Lessee and
Escrow Agent further agree as follows:
(a) All terms used in this Section 6 which are defined in the Commercial Code
of the State of California ( "Commercial Code ") but are not otherwise defined herein shall have the
meanings assigned to such terms in the Commercial Code, as in effect on the date of this
Agreement.
(b) Escrow Agent will comply with all entitlement orders originated by Lessor
with respect to the Collateral, or any portion of the Collateral, without further consent by Lessee.
Lessor shall provide a copy of any such entitlement order to Lessee concurrently with the delivery
of such notice to Escrow Agent. Escrow Agent shall conclusively presume that a copy of any
entitlement order delivered to it was simultaneously delivered to Lessee without any responsibility
to independently confirm such delivery.
(c) Provided that account investments shall be held in the name of the Escrow
Agent, Escrow Agent hereby represents and warrants (a) that the records of Escrow Agent show
that Lessee is the sole owner of the Collateral, (b) that Escrow Agent has not been served with any
notice of levy or received any notice of any security interest in or other claim to the Collateral, or
any portion of the Collateral, other than Lessor's claim pursuant to this Agreement, and (c) that
Escrow Agent is not presently obligated to accept any entitlement order from any person with
respect to the Collateral, except for entitlement orders that Escrow Agent is obligated to accept
from Lessor under this Agreement and entitlement orders that Escrow Agent, subject to the
provisions of paragraph (e) below, is obligated to accept from Lessee.
(d) Without the prior written consent of Lessor, Escrow Agent will not enter
into any agreement by which Escrow Agent agrees to comply with any entitlement order of any
person other than Lessor or, subject to the provisions of paragraph (e) below, Lessee, with respect
to any portion or all of the Collateral. Escrow Agent shall promptly notify Lessor and Lessee if
any person requests Escrow Agent to enter into any such agreement or otherwise asserts or seeks
to assert a lien, encumbrance or adverse claim against any portion or all of the Collateral.
(e) Except as otherwise provided in this paragraph (e) and subject to
Section 1(b) hereof, Lessee may effect sales, trades, transfers and exchanges of Collateral within
the Escrow Account, but will not, without the prior written consent of Lessor, withdraw any
Collateral from the Escrow Account. Escrow Agent acknowledges that Lessor reserves the right,
by delivery of written notice to Escrow Agent, to prohibit Lessee from effecting any withdrawals
(including withdrawals of ordinary cash dividends and interest income), sales, trades, transfers or
exchanges of any Collateral held in the Escrow Account. Further, Escrow Agent hereby agrees to
comply with any and all written instructions delivered by Lessor to Escrow Agent (once it has had
a reasonable opportunity to comply therewith) and has no obligation to, and will not, investigate
the reason for any action taken by Lessor, the amount of any obligations of Lessee to Lessor, the
validity of any of Lessor's claims against or agreements with Lessee, the existence of any defaults
under such agreements, or any other matter.
(f) Lessee hereby irrevocably authorizes Escrow Agent to comply with all
instructions and entitlement orders delivered by Lessor to Escrow Agent. Lessor shall provide a
copy of such instructions and entitlement orders to Lessee at the same time as it is delivered to the
Escrow Agent unless such payment instructions are consistent with the Disbursement Request
submitted by Lessee.
(g) Escrow Agent will not attempt to assert control, and does not claim and will
not accept any security or other interest in, any part of the Collateral, and Escrow Agent will not
exercise, enforce or attempt to enforce any right of setoff against the Collateral, or otherwise
charge or deduct from the Collateral any amount whatsoever.
(h) Escrow Agent and Lessee hereby agree that any property held in the Escrow
Account shall be treated as a financial asset under such section of the Commercial Code as
corresponds with Section 8 -102 of the Uniform Commercial Code, notwithstanding any contrary
provision of any other agreement to which Escrow Agent may be a party.
(i) Escrow Agent is hereby authorized and instructed, and hereby agrees, to
send to Lessor at its address set forth in Section 8 below, concurrently with the sending thereof to
Lessee, duplicate copies of any and all monthly Escrow Account statements or reports issued or
sent to Lessee with respect to the Escrow Account. Escrow Agent is hereby authorized and
instructed, and hereby agrees, to send to Lessee at its address set forth in Section 8 below,
7
concurrently with the sending thereof to Lessor, duplicate copies of any and all monthly Escrow
Account statements or reports issued or sent to Lessor with respect to the Escrow Account.
7. Information Required Under USA PATRIOT ACT. The parties acknowledge that
in order to help the United States government fight the funding of terrorism and money laundering
activities, pursuant to Federal regulations that became effective on October 1, 2003 (Section 326
of the USA PATRIOT ACT) all financial institutions are required to obtain, verify, record and
update information that identifies each person establishing a relationship or opening an account.
The parties to this Agreement agree that they will provide to the Escrow Agent such information
as it may request, from time to time, in order for the Escrow Agent to satisfy the requirements of
the USA PATRIOT ACT, including but not limited to the name, address, tax identification number
and other information that will allow it to identify the individual or entity who is establishing the
relationship or opening the account and may also ask for formation documents such as articles of
incorporation or other identifying documents to be provided.
8. Miscellaneous. Capitalized terms not otherwise defined herein shall have the
meanings assigned to them in the Lease. This Agreement may not be amended except in writing
signed by all parties hereto. This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original instrument and each shall have the force and effect of
an original and all of which together constitute, and shall be deemed to constitute, one and the
same instrument. Notices hereunder shall be made in writing and shall be deemed to have been
duly given when personally delivered or when deposited in the mail, first class postage prepaid, or
delivered to an express carrier, charges prepaid, or sent by facsimile with electronic confirmation,
addressed to each party at its address below.
Notices and other communications hereunder may be delivered or furnished by electronic
mail provided that any formal notice be attached to an email message in PDF format and provided
further that any notice or other communication sent to an e-mail address shall be deemed received
upon and only upon the sender's receipt of affirmative acknowledgement or receipt from the
intended recipient. For purposes hereof no acknowledgement of receipt generated on an automated
basis shall be deemed sufficient for any purpose hereunder or admissible as evidence of receipt.
If to Lessor: Banc of America Leasing & Capital, LLC
11333 McCormick Road
Mail Code: MD5- 032 -07 -05
Hunt Valley, MD 21031
Attn: Contract Administration
Fax: (443) 541 -3057
If to Lessee:
Attn:
Fax:
If to Escrow Agent
Wilmington Trust, National Association
650 Town Center Drive, Suite 600
Costa Mesa, CA 92626
Attn: Aimee Tabor
Phone: (714) 384 -4177
Fax: (714) 384 -4151
Email: atabor2 @WilmingtonTrust.com
9. Lessee and Lessor understand and agree that they are required to provide the
Escrow Agent with a properly completed and signed Tax Certification (as defined below) and that
the Escrow Agent may not perform its duties hereunder without having been provided with such
Tax Certification. As used herein "Tax Certification" shall mean an IRS form W -9 or W -8 as
described above. The Escrow Agent will comply with any U.S. tax withholding or backup
withholding and reporting requirements that are required by law. With respect to earnings
allocable to a foreign person, the Escrow Agent will withhold U.S. tax as required by law and
report such earnings and taxes withheld, if any, for the benefit of such foreign person on IRS Form
1042 -S (or any other required form), unless such earnings and withheld taxes are exempt from
reporting under Treasury Regulation Section 1.1461- 1(c)(2)(ii) or under other applicable law.
With respect to earnings allocable to a United States person, the Escrow Agent will report such
income, if required, on IRS Form 1099 or any other form required by law. The IRS Forms 1099
and /or 1042 -S shall show the Escrow Agent as payor and Lessee as payee. Escrow Agent shall
recognize Lessee as the designated party for regulatory reporting purposes.
Lessee and Lessor agree that they are not relieved of their respective obligations, if any, to
prepare and file information reports under the Internal Revenue Code of 1986, as amended (the
"Code") Section 6041, and the Treasury regulations thereunder, with respect to amounts of
imputed interest income, as determined pursuant to Code Sections 483 or 1272. The Escrow Agent
shall not be responsible for determining or reporting such imputed interest.
10. This Agreement shall be governed by and construed in accordance with the laws of
the State of California and the parties hereto consent to jurisdiction in the State of California and
venue in any state or Federal court located in the County of Riverside, California.
11. Any bank or corporation into which the Escrow Agent may be merged or with
which it may be consolidated, or any bank or corporation to whom the Escrow Agent may transfer
a substantial amount of its escrow business, shall be the successor to the Escrow Agent without
the execution or filing of any paper or any further act on the part of any of the parties, anything
herein to the contrary notwithstanding. Any bank or corporation into which the Lessor may be
merged or with which it may be consolidated, or any bank or corporation to whom the Lessor may
transfer a substantial amount of its business, shall be the successor to the Lessor without the
execution or filing of any paper or any further act on the part of any of the parties, anything herein
to the contrary notwithstanding. The Lessee's rights and obligations under this Agreement shall
continue upon the occurrence of a merger pursuant to this Section 11.
12. This Agreement may be amended, modified, and /or supplemented only by an
instrument in writing executed by all parties hereto.
13. No party hereto shall assign its rights hereunder until its assignee has submitted to
the Escrow Agent (i) Patriot Act disclosure materials and the Escrow Agent has determined that
on the basis of such materials it may accept such assignee as a customer and (ii) assignee has
delivered an IRS Form W -8 or W -9, as appropriate, to the Escrow Agent which the Escrow Agent
has determined to have been properly signed and completed.
14. Escrow Agent will treat information related to this Agreement as confidential but,
unless prohibited by law, Lessee and Lessor authorize the transfer or disclosure of any information
relating to the Agreement to and between the subsidiaries, officers, affiliates and other
representatives and advisors of Escrow Agent and third parties selected by any of them, wherever
situated, for confidential use in the ordinary course of business, and further acknowledge that
Escrow Agent and any such subsidiary, officer, affiliate or third party may transfer or disclose
any such information as required by any law, court, regulator or legal process.
Lessor will treat information related to this Agreement as confidential but, unless prohibited by
law, Escrow Agent and Lessee authorize the transfer or disclosure of any information relating to
the Agreement to and between the subsidiaries, officers, affiliates, other representatives and
advisors of Lessor and debt and equity sources and third parties selected by any of them, and to
their prospective assignees wherever situated, for confidential use in the ordinary course of
business, and further acknowledge that Lessor and any such subsidiary, officer, affiliate, debt and
equity source or third party or prospective assignee may transfer or disclose any such information
as required by any law, court, regulator or legal process.
10
In Witness Whereof, the parties have executed this Escrow and Account Control
Agreement as of the date first above written.
Banc of America Leasing & Capital, LLC
as Lessor as Lessee
Name:
Title:
Wilmington Trust, National Association
as Escrow Agent
By:
Name:
Title:
Name:
Title:
[Signature Page to Escrow and Account Control Agreement]
SCHEDULE I
to the Escrow and Account Control Agreement
FORM OF DISBURSEMENT REQUEST
Re: Equipment Lease /Purchase Agreement dated as of by and
between Banc of America Leasing & Capital, LLC, as Lessor and
. as Lessee (the "Lease ") (Capitalized terms not otherwise defined
herein shall have the meanings assigned to them in the Lease.)
In accordance with the terms of the Escrow and Account Control Agreement, dated as of
(the "Escrow Account and Account Control Agreement ") by and
among Banc of America Leasing & Capital, LLC ( "Lessor "), _
( "Lessee ") and Wilmington Trust, National Association, (the "Escrow Agent "), the undersigned
hereby requests the Escrow Agent pay the following persons the following amounts from the
Escrow Account created under the Escrow Account and Account Control Agreement for the
following purposes:
Disbursement Amounts:
Payee's Name and Address Invoice Number Dollar Amount Purpose
(if disbursement via wire,
must include wire transfer
instructions)
(i) (a) Each obligation specified in the table herein titled as "Disbursement Amounts"
has been incurred by Lessee in the stated amount, (b) the same is a proper charge against the
Escrow Account for costs relating to the Equipment identified in the Lease, and (c) has not been
paid (or has been paid by Lessee and Lessee requests reimbursement thereof). [None of the
obligations specified in the table herein titled as "Disbursement Amounts" are to pay the
Purchase Price (as defined in the Pole Agreement) to Southern California Edison (or to
reimburse Lessee for its payment of said Purchase Price to Southern California Edison).] [All
or a portion of the obligations specified in the. table herein titled as "Disbursement Amounts"
are to pay [a portion of] the [final] Purchase Price (as defined in the Pole Agreement) to
Southern California Edison (or to reimburse Lessee for payment of [a portion of] said [final]
Purchase Price to Southern California Edison), and Lessee has heretofore provided Lessor
with (x) the [applicable]3 completed and signed Provision of Detail of True -Up Process [and
Request for True -Up Amendment] in the form of Exhibit K to the Lease and Lessee has
heretofore satisfied the applicable requirements of Section 2.01(r) of the Lease and (y)
invoices and bills of sale relating to all the property, equipment and streetlights purchased
or reimbursed (or to be purchased or reimbursed) with the proceeds of such disbursement
and the payment of such Purchase Price.]
(ii) For each item of Equipment relating to an obligation specified in the table herein
titled as "Disbursement Amounts" (a) Lessee has conducted such inspection and testing of the
Equipment as it deems necessary and appropriate in order to determine the Equipment's capability
and functionality in order to accept such Equipment, (b) such Equipment has been delivered,
installed, is operating in a manner consistent with the intended use and has been inspected and
finally accepted for all purposes by Lessee and title thereto has transferred to Lessee and any
security interest of Southern California Edison and /or Vendor therein has been released and (c) the
date on which Equipment acceptance occurred is 20. Attached hereto is the
original invoice with respect to such obligation.
(iii) The undersigned, as Authorized Representative, has no actual notice of any
vendor's, mechanic's or other liens or rights to liens, chattel mortgages, conditional sales contracts
or security interest which should be satisfied or discharged before such payment is made.
(iv) This requisition contains no item representing payment on account, or any retained
percentages which Lessee is, at the date hereof, entitled to retain (except to the extent such amounts
represent a reimbursement to Lessee).
(v) The Equipment is insured in accordance with the Lease.
(vi) No Event of Default, and no event which with notice or lapse of time, or both,
would become an Event of Default, under the Lease has occurred and is continuing at the date
hereof. No Event of Non-appropriation has occurred or is threatened with respect to the Lease.
(vii) The disbursement shall occur during the Acquisition Period.
(viii) The representations, warranties and covenants of Lessee set forth in the Lease are
true and correct as of the date hereof.
(ix) No Material Adverse Change has occurred since the date of the execution and
delivery of the Lease.
3 Include for multi -phase PSAs.
Dated:
By:
Name:
Title:
Disbursement of funds from the Escrow
Account in accordance with the'foregoing
Disbursement Request hereby is authorized
BAN oi, An ERICA LEASING & CAPITAL, LLC
as Lessor under the Lease
By:
Name:
Title:
[AN "EXHIBIT A -1" MUST BE COMPLETED AND EXECUTED AT TIME OF EXECUTION OF THE AGREEMENT]
EXHIBIT A -1
FORM OF INCUMBENCY AND AUTHORIZATION CERTIFICATE
The undersigned, a duly elected or appointed and acting
[City Clerk] [County Clerk] of
follows:
[Secretary]
( "Lessee ") certifies as
A. The following listed persons are duly elected or appointed and acting officials of
Lessee (the "Officials") in the capacity set forth opposite their respective names below and that
the original or facsimile signatures are true and correct as of the date hereof,
B. The Resolution of Lessee's City Council, No. , dated , 20,
authorized the Officials, on behalf of Lessee, to negotiate, execute and deliver the Equipment
Lease /Purchase Agreement dated as of by and between Lessee and Banc
of America Leasing & Capital, LLC ("Lessor"), the Escrow and Account Control Agreement
dated as of among Lessor, Lessee and Wilmington Trust, National
Association, as Escrow Agent, and all documents related thereto and delivered in connection
therewith (collectively, the "Agreements").
Name of Official
Dated:
Title
By: `
Name:
Title:
Signature
(The signer of this Certificate cannot be listed above as authorized to execute the Agreements.)
[AN "EXHIBIT A -2" MUST BE COMPLETED AND EXECUTED AT TIME OF EXECUTION OF THE AGREEMENT]
EXHIBIT A -2
Escrow and Account Control Agreement dated as of by and among Banc
of America Leasing & Capital, LLC, Lessor, , as Lessee and
Wilmington Trust, National Association, Escrow Agent
Certificate of Authorized Representatives — [Lessor]
Name: Terri Preston Name: Nancy Nusenko
Title: Authorized Agent
Phone: 443 -541 -3642
Facsimile:
E -mail:
Signature:
443 -541 -3057
Terri.Preston@bami.com
Fund Transfer / Disbursement Authority Level:
❑
Initiate '
❑
Verify transactions initiated by others
Name:
Nancy K. Hepner
Title:
Authorized Aaent
Phone: 443 -541 -3645
Facsimile: 804 -553 -2407
Title: Authorized
Phone: 443 -541 -3646
Facsimile: 443 -541 -3057
E -mail: Nancv.a.nusenkona.baml.com
Signature:
Fund Transfer / Disbursement Authority Level:
❑ Initiate
❑ Verify transactions initiated by others
Name: Arlene Sobieck
Title: Authorized
Phone: 443 -541 -3643
Facsimile: 443 -541 -3057
E -mail: Nancy.k.hepner @baml.com E -mail: Arlene.sobieck @baml.com
Signature:
Fund Transfer / Disbursement Authority Level:
❑ Initiate
❑ Verify transactions initiated by others
Signature:
Fund Transfer / Disbursement Authority Level:
❑ Initiate
❑ Verify transactions initiated by others
The Escrow Agent is authorized to comply with and rely upon any notices, instructions or other
communications believed by it to have been sent or given by the person or persons identified above
including without limitation, to initiate and verify funds transfers as indicated.
Banc of America Leasing & Capital, LLC
By:
Name:
Title:
Date:
EQUIPMENT LEASE /PURCHASE AGREEMENT'
(ESCROW ACCOUNT; IMPLEMENTATION AGREEMENT)
This Equipment Lease /Purchase Agreement (the "Agreement") dated as of
and entered into between Banc of America Leasing & Capital, LLC, a Delaware limited
liability company (together with its successors, assigns and transferees, and as more particularly
defined herein, "Lessor "), and the . a [city] [county] [special district] [body
corporate and politic] existing under the laws of the State of California ("Lessee").
WITNESSETH:
WHEREAS, Lessee desires the Lessor to finance the acquisition, installation [and retrofitting
of] certain Equipment (as such term is defined herein) to be leased by Lessee, subject to the terms
and conditions hereof; and
WHEREAS, Lessee is authorized under the constitution and laws of the State to enter into
this Agreement for the purposes set forth herein;
Now, THEREFORE, for good and valuable consideration, receipt and sufficiency of which
is hereby acknowledged, and in consideration of the premises hereinafter contained, the parties
hereby agree as follows:
ARTICLE I
Section 1.01. Definitions. The following terms will have the meanings indicated below
unless the context clearly requires otherwise:
"Acquisition Amount" means $ . The Acquisition Amount is the amount
represented by Lessee to be sufficient, together with other funds of the Lessee (if any) that are
legally available for that purpose, to acquire and install the Equipment.
"Acquisition Period" means the period ending five (5) business days prior to
[ "Additional Lessee -Owned Streetlights" means all streetlights and related fixtures
owned by Lessee and located within the , described on Exhibit G attached
hereto (as may be amended by a True -Up Amendment), and all replacements, repairs,
restorations, modifications and improvements thereof or thereto; provided that "Additional
Lessee -Owned Streetlights" shall not include Lessee -Owned Streetlights or Retired
Streetlights.]
This form is for Member Agencies that enter into an Implementation Agreement with WRCOG.
2018 -099 Escrow Agreement 1-
2251726
"Agreement" means this Equipment Lease /Purchase Agreement, including the exhibits
hereto, together with any amendments and modifications to the Agreement pursuant to
Section 13.04.
"Closing Date " has the meaning set forth in the Pole Agreement.2
"Collateral" has the meaning provided in Section 6.02.
"Collection Fund" has the meaning set forth in the Paying Agent Agreement.
"Commencement Date " means the date when Lessee's obligation to pay rent commences
hereunder, which shall be the date on which the Acquisition Amount is deposited with the Escrow
Agent.
"Contract Rate " means the rate identified as such in the Payment Schedule.
"Disbursement Request" means the disbursement request attached to the Escrow
Agreement as Schedule I and made a part thereof.
"Disposed Equipment Collateral Value" means an amount equal to the product obtained
by multiplying (A) the Prepayment Price shown on the Payment Schedule for the Rental Payment
Date next preceding the Partial Prepayment Date (or if the Partial Prepayment Date occurs prior
to the first Rental Payment Date for which the Prepayment Price is shown, then the product
obtained by multiplying the then aggregate unpaid principal component of Rental Payments
outstanding on the Partial Prepayment Date times 102 %) times (B) a fraction (i) the numerator of
which equals the cost of the Equipment (including any costs of installation or other related costs
financed or refinanced under this Agreement) located in or on such property, facilities and
buildings subject to demolition, disposition, damage, destruction, casualty, title defect or
condemnation event, as the case may be, and (ii) the denominator of which equals the total cost of
the Equipment financed under this Agreement.
"Disposed Equipment Prepayment Amount" means, as of a Partial Prepayment Date, an
amount equal to the Disposed Equipment Collateral Value.
"Equipment" means [(a)] the property listed in the Equipment Schedule (as may be
amended by a True -Up Amendment, if any) and all replacements, repairs, restorations,
modifications and improvements thereof or thereto made pursuant to Article V or Section 8.01 [,
(b) the Lessee -Owned Streetlights and (c) the Additional Lessee -Owned Streetlights] [;
provided that Equipment shall exclude any Retired Streetlights]. Whenever reference is made
in this Agreement to Equipment, such reference shall be deemed to include all such replacements,
repairs, restorations, modifications and improvements of or to such Equipment.
Confirm specific terminology in particular City's PSA,
CA Appropriation 72016 -2-
"Equipment Costs" means the total cost of the Equipment, including related costs such as
freight, installation and sales and other taxes, capitalizable costs, and costs of issuance incurred in
connection with the acquisition, installation and /or financing of the Equipment.
"Equipment Schedule" means the equipment schedule attached hereto as Exhibit A and
made a part hereof.
"Escrow Account" means the fund established and held by the Escrow Agent pursuant to
the Escrow Agreement.
"Escrow Agent" means the Escrow Agent identified in the Escrow Agreement, and its
successors and assigns.
"Escrow Agreement" means the Escrow and Account Control Agreement dated as of
, 2018 in form and substance acceptable to and executed by Lessee, Lessor and the
Escrow Agent, pursuant to which an Escrow Account is established and administered.
"Event of Default " means an Event of Default described in Section 12.01.
"Event ofNon- appropriation " means the failure of Lessee's governing body to appropriate
or otherwise make available funds to pay Rental Payments under this Agreement following the
Original Term or then current Renewal Term sufficient for the continued performance of this
Agreement by Lessee.
"Excess Proceeds" has the meaning provided in Section 4.05.
"Implementation Agreement" means the Implementation Agreement dated as of
,20 between WRCOG and Lessee relating to the acquisition and maintenance
of the Equipment, as the same may be amended by WRCOG and Lessee, with the prior written
consent of Lessor.
"Inoperable Component" has the meaning provided in Section 5.04.
"[Inventory Inspection Period]" has the meaning provided in the Pole Agreement.3
"Lease Term " means the Scheduled Term upon its expiration or as terminated as provided
in Section 3.03.
"Lessee " means the entity referred to as Lessee in the first paragraph of this Agreement.
"Lessee -Owned Streetlights" means the streetlights and related fixtures owned by Lessee,
as identified in Exhibit A attached hereto, as may be amended with the prior written consent of
Confirm specific terminology in particular City's PSA. "Inventory, Planning and Inspection Period" in some
PSAs.
CA Appropriation 72016 -3-
Lessor in its discretion or upon the True -Up Process, and located within the
(x) which are to be acquired, constructed, furnished and installed with amounts to be disbursed
pursuant to the Escrow Agreement (and thereby constituting Equipment hereunder) and /or (y) on,
about and to which a portion of the Equipment is to be acquired, constructed, furnished and
installed with amounts to be disbursed pursuant to the Escrow Agreement[; provided that "Lessee -
Owned Streetlights" shall not include Retired Streetlights].
"Lessor" means (a) the entity referred to as Lessor in the first paragraph of this Agreement
and its successors or (b) any assignee or transferee of any right, title or interest of Lessor in and to
this Agreement, including the Equipment, the Rental Payments and other amounts due hereunder,
pursuant to Section 11.0 1, or the Escrow Account, but does not include any entity solely by reason
of that entity retaining or assuming any obligation of Lessor to perform hereunder.
"Lien" means any lien (statutory or otherwise), security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, deposit arrangement, encumbrance, preference, priority or
other security or preferential arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing and the filing of any financing
statement under the Uniform Commercial Code or comparable law of any jurisdiction).
"Light Pole License Agreement" means that certain No -Fee Light Pole License Agreement
for Wireless Attachment between Southern California Edison and Lessee dated as of
including amendments and supplements thereto relating to the issuance of licenses thereunder to
Southern California Edison in order for Southern California Edison to attach certain wireless
equipment (the "SCE Equipment") to the [Streetlights] and Lessee's poles and facilities for the
purpose of operating or managing the provision of electricity to the [Streetlights], all as further
described therein. Nothing in this Agreement shall require Lessee to maintain such Light Pole
License Agreement beyond the term of such agreement.
"Material Adverse Change" means any change in Lessee's creditworthiness that could
reasonably be expected to have a material adverse effect on (a) the financial condition or
operations of Lessee, or (b) Lessee's ability to perform its obligations under this Agreement.
"Material Adverse Effect" means any event or occurrence which could (a) adversely affect
the rights, interests, remedies or security of the Lessor under this Agreement or with respect to the
Collateral, (b) impair the ability of the Lessee to perform its obligations under this Agreement, the
WRCOG Agreements and /or any Vendor Agreement or (c) have an adverse effect upon the
legality, validity, binding effect or enforceability against the Lessee of this Agreement, the
WRCOG Agreements and /or any Vendor Agreement.
"Original Term " means the period from the Commencement Date until the end of the fiscal
year of Lessee in effect at such Commencement Date.
"Outstanding Balance" means the amount that is shown for each Rental Payment Date
under the column titled "Outstanding Balance" on the Payment Schedule.
CA Appropriation 72016 4-
"Partial Prepayment Date " means a business day selected by Lessee that is the earlier of
the next Rental Payment Date or 65 days after the casualty, title defect or condemnation event (or
such other date approved in writing by Lessor), and shall be the date that Lessee exercises its right
of partial prepayment following a partial casualty or condemnation event as provided in Section
10.01(b)(2). Lessee shall provide Lessor with at least 60 days prior written notice of the Partial
Prepayment Date.
"Paying Agent Agreement" means the Paying Agent Agreement dated as of
20_ among Lessee, Lessor, WRCOG and Wilmington Trust, National
Association, as paying agent, with respect to the Collection Fund and the subaccounts therein and
which provides for the orderly distribution of payments under this Agreement and the
Implementation Agreement, as the same may be amended from time to time.
"Payment Schedule " means the payment schedule attached hereto as Exhibit B and made
a part hereof.
[ "Phase Closing Date" has the meaning set forth in the Pole Agreement.1 4
"Pole Agreement" means (i) that Purchase and Sale Agreement between Southern
California Edison and Lessee dated as of including amendments and
supplements thereto, relating to, among other things, the purchase of certain Equipment from
Southern California Edison and (ii) any such other agreements pursuant to which licenses are
issued thereunder to Lessee in order for Lessee or its Vendor to attach certain Equipment to Pole
Owner's poles and facilities all as further described therein.
"Pole Owner" means Southern California Edison, its successors or assigns, or any other
owner of the streetlights, brackets, photocells and poles to be acquired by Lessee.
"Prepayment Price" means the amount provided under the column titled "Prepayment
Price" in the Payment Schedule minus the amount of any partial prepayment pursuant to Section
10.01(b) paid prior to the date of prepayment pursuant to Section 10.01(a).
"Principal Portion" means the amount that is shown for each Rental Payment Date under
the column titled "Principal Portion" on the Payment Schedule.
"Professional Services Agreement" means (a) the Professional Services Agreement dated
as of , 20 between WRCOG and (the "Consultant") together
with Appendix — attached thereto executed by WRCOG, the Consultant and Lessee, as the same
may be amended from time to time and (b) any subsequent agreement entered into between
WRCOG and a third party provider and accepted and agreed to in writing by the Lessee for the
services described therein, as the same may be amended from time to time.
"Real Property" means real estate where the Equipment is and /or will be located.
Include for multi -phase PSAs. Confirm specific terminology in particular City's PSA.
CA Appropriation 72016 -5-
"Real Property Issue " has the meaning provided in Section 2.01(t).
"Related Agreements" means this Agreement, the Escrow Agreement and each of the
WRCOG Agreements.
"Renewal Terms" means the consecutive renewal terms of this Agreement, the first of
which commences immediately after the end of the Original Term and each having a duration and
term coextensive with each successive fiscal year of Lessee; provided that the final such Renewal
Term shall commence on the first day of the last such fiscal year and end on the first business day
after the last scheduled Rental Payment Date.
"Rental Payment Date " means each date on which Lessee is required to make a Rental
Payment under this Agreement as specified in the Payment Schedule.
"Rental Payment Subaccount" has the meaning set forth in the Paying Agent Agreement.
"Rental Payments" means the basic rental payments payable by Lessee on the Rental
Payment Dates and in the amounts as specified in the Payment Schedule, consisting of a principal
component and an interest component, and in all cases sufficient to repay such principal
component and interest thereon at the applicable Contract Rate.
"Replaced Equipment" has the meaning provided in Section 8.01.
"Replacement Equipment" has the meaning provided in Section 8.01.
[ "Retired Streetlights" means in the aggregate over the Lease Term, the up to 5
Streetlights that are permitted, pursuant to Section 5.04(c) hereof, to be retired and removed
from Equipment and not replaced.]
"Scheduled Term " means the Original Term and all Renewal Terms, with a final Renewal
Term ending on
"State " means the State of California.
[ "Streetlights" means all Additional Lessee -Owned Streetlights and all Lessee -Owned
Streetlights, in each case, subject to Lessor's first priority Lien under this Agreement, but
shall exclude any Retired Streetlights.]
"Surety Bond" means a payment or performance bond.
Before closing, we will hard code the #.of streetlights that can be permanently retired which cannot exceed
1% of the number of Lessee -Owned Streetlights under this Agreement. In connection with a True -Up
Amendment this number can be recalibrated.
CA Appropriation 72016 -6-
"True -Up Amendment" means an amendment to this Agreement and the Equipment
Schedule executed by Lessee and Lessor substantially in the form attached as Exhibit J hereto.
"True -Up Process" means, upon the expiration of the [fina1]6 [Inventory Inspection
Period] and following the Closing Date under the Pole Agreement, the execution of the True -Up
Amendment by Lessee and Lessor to adjust the Equipment under this Agreement to add, delete or
modify references to be consistent with the property, equipment and /or streetlights acquired under
the Pole Agreement during and as a result of the [final]? [Inventory Inspection Period].
"Vendor" means the manufacturer, installer, contractor, supplier or provider of the
Equipment or services (excluding Southern California Edison and WRCOG) with respect to the
Equipment or any other person as well as the agents or dealers of the manufacturer, installer,
contractor, supplier or provider with whom Lessee arranged Lessee's acquisition, installation,
operation, maintenance and /or servicing of the Equipment.
"Vendor Agreement" means any contract entered into by Lessee and any Vendor for the
acquisition, installation, maintenance and /or servicing of the Equipment, and shall include, without
limitation, the WRCOG EPA and the Professional Services Agreement.
" WRCOG" means Western Riverside Council of Governments, a joint powers authority
formed under Government Code sections 6500 et seq.
" WRCOG Agreements" means the Implementation Agreement, the Professional Services
Agreement, the WRCOG EPA, and the Paying Agent Agreement.
" WRCOG EPA" means the Equipment Purchase Agreement dated as of
20 between WRCOG and (the "Contractor") together with
Appendix — attached thereto executed by WRCOG, the Contractor and Lessee, as the same may
be amended from time to time.
ARTICLE II
Section 2.01. Representations, Warranties and Covenants of Lessee. For the benefit of
Lessor, Lessee represents and warrants as of the Commencement Date (and such other dates as
may be provided herein), and covenants at all times during the Lease Term as follows:
(a) Lessee is a [city] [county] [special district] [body corporate and politic],
duly organized and existing under the constitution and laws of the State, with full power
and authority to enter into this Agreement and the Related Agreements and the transactions
contemplated hereby and thereby and to perform all of its obligations hereunder and
thereunder.
Include for multi -phase PSAs.
Include for multi -phase PSAs.
CA Appropriation 72016 -7-
(b) Lessee has duly authorized the execution and delivery of this Agreement
and the Related Agreements by proper action of its governing body at a meeting duly
called, regularly convened and attended throughout by the requisite quorum of the
members thereof, or by other appropriate official approval, and all requirements have been
met and procedures have occurred in order to ensure the validity and enforceability of this
Agreement and the Related Agreements.
(c) No event or condition that constitutes, or with the giving of notice or the
lapse of time or both would constitute, an Event of Default exists at the date hereof. No
Event of Non - appropriation has occurred or is threatened with respect to this Agreement.
(d) Lessee will do or cause to be done all things, as legally permissible,
necessary to preserve and keep in full force and effect its existence as a [city] [county]
[special district] [body corporate and politic] of the State.
(e) Lessee has complied with such procurement and public bidding
requirements as are applicable to this Agreement and the Related Agreements and the
acquisition and installation by Lessee of the Equipment, under federal, regional, state and
local law, statute, rule, ordinance, regulation, code, license, authorization, decision,
injunction, interpretation, order or decree of any court or other governmental authority.
(f) During the Lease Term, the Equipment will be used by Lessee only for the
purpose of performing essential governmental or proprietary functions of Lessee consistent
with the permissible scope of Lessee's authority. Lessee does not intend to sell or
otherwise dispose of the Equipment or any interest therein prior to the last Rental Payment
(including all Renewal Terms) scheduled to be paid hereunder.
(g) Lessee has kept, and throughout the Lease Term shall keep, its books and
records in accordance with generally accepted accounting principles and practices
consistently applied, and shall deliver to Lessor (i) annual audited financial statements
(including (1) a balance sheet, (2) statement of revenues, expenses and changes in fund
balances for budget and actual, (3) statement of cash flows, and (4) footnotes, schedules
and attachments to the financial statements) within nine months of its fiscal year end,
(ii) such other financial statements and information as Lessor may reasonably request, and
(iii) upon Lessor's request, its annual budget for any prior five fiscal years or current fiscal
year or for the following fiscal year when approved but not later than thirty (30) days prior
to the end of its current fiscal year. The financial statements described in subsection (g)(i)
shall be accompanied by an unqualified opinion of Lessee's independent auditor. Credit
information relating to Lessee may be disseminated among Lessor and any of its affiliates
and any of their respective successors and assigns. All financial statements and other
information delivered to Lessor by the Lessee is correct as of the date thereof. Since [date
of most recent audit], no material adverse change has occurred in the Lessee's financial
condition that would adversely affect the Lessee's ability to perform its obligations
hereunder.
CA Appropriation 72016 -8-
(h) Lessee has an essential need for the Equipment and expects to make
immediate use of the Equipment. Lessee's need for the Equipment is not temporary and
Lessee does not expect the need for any item of the Equipment to diminish during the
Scheduled Term.
(i) The payment of the Rental Payments or any portion thereof is not (under
the terms of this Agreement or any other Related Agreement) directly or indirectly
(x) secured by any interest in property used or to be used in any activity carried on by any
person other than a state or local governmental unit or payments in respect of such property;
or (y) on a present value basis, derived from payments (whether or not to Lessee) in respect
of property, or borrowed money, used or to be used in any activity carried on by any person
other than a state or local governmental unit, except where failure to comply with such
requirement would not result in a Material Adverse Effect or a Material Adverse Change.
The Equipment will not be used or operated, directly or indirectly, in any activity carried
on by any person other than a state or local governmental unit if it would result in a Material
Adverse Effect or a Material Adverse Change. No portion of the Acquisition Amount will
be used, directly or indirectly, to make or finance loans to any person other than Lessee if
it would result in a Material Adverse Effect or a Material Adverse Change. Lessee has not
entered into any management or other service contract with respect to the use and operation
of the Equipment that would result in a Material Adverse Effect or a Material Adverse
Change.
0) There is no pending litigation, tax claim, other proceeding or dispute (of
which Lessee is aware, has notice or has been served), or to Lessee's best knowledge,
threatened, litigation, tax claim, proceeding or dispute against Lessee that could materially
adversely affect Lessee's financial condition or impairs its ability to perform its obligations
under this Agreement or any Related Agreement. There is no public vote or referendum
pending, proposed or concluded, the results of which could adversely affect Lessee's
financial condition or impairs its ability to perform its obligations under this Agreement or
any Related Agreement. Lessee will, at its expense, maintain its legal existence in good
standing and do any further act and execute, acknowledge, deliver, file, register and record
any further documents Lessor may reasonably request in order to protect Lessor's first
priority security interest in the Equipment, the Escrow Account, the Collection Fund and
the Rental Payment Subaccount, and Lessor's rights and benefits under this Agreement and
the Related Agreements.
(k) With respect to the Real Property: (i) Lessee is the fee owner of the Real
Property and has good and marketable title thereto, and there exists no mortgage, pledge,
Lien, security interest, charge or other encumbrance of any nature whatsoever on or with
respect to such Real Property, (ii) the Equipment will be located on improvements within,
a right -of -way that is dedicated to public use for a period that is longer than the Scheduled
Term and /or (iii) to the extent neither (i) or nor (ii) is true with respect to any portion of
the Real Property ( "Non- Lessee Real Property"), then Lessee has the right to enter onto
said Non - Lessee Real Property for -the purposes of returning-the Equipment to Lessor
and /or exercising remedies under this Agreement on behalf of Lessor, including, without
limitation (subject to the Light Pole License Agreement), the right to physically detach and
CA Appropriation 72016 -9-
remove the Equipment from the Non- Lessee Real Property and return the same to
Lessor. Lessee is (or upon the acquisition of the Lessee -Owned Streetlight under the Pole
Agreement, will be) the fee of owner with free and clear title to all the Lessee -Owned
Streetlights on, about and to which a portion of the Equipment is or will be located. Lessee
has the right to install, operate, maintain and remove Equipment on, to and from the Lessee -
Owned Streetlights for a period that is longer than the Scheduled Term, and the right, upon
Lessor's request (subject to the Light Pole License Agreement), to physically detach and
remove the Equipment from the Lessee -Owned Streetlights and return the same to
Lessor. Lessee covenants and agrees that throughout the Lease Term and prior to the
payment of the last scheduled Rental Payment and the payment of all other amounts due
hereunder, Lessee shall not, to the extent it may legally agree to do so, transfer title to or
control over, or encumber the Real Property to another entity or devote any portion of the
Real Property to another entity. The Light Pole License Agreement does not and shall in
no way impair, adversely affect or prime Lessor's first priority Lien on any of the
Equipment under this Agreement; provided, however, Lessor acknowledges that the Light
Pole License Agreement may require the substitution of certain existing poles and /or
provision of certain notices prior to the removal of the Equipment.
(1) The portion of the Equipment that is or will be subject to a Pole Agreement
is and will be located on within a right -of -way that is dedicated to public use for a period
that is longer than the Scheduled Term. Based solely on Southern California Edison's
representations in the Pole Agreement, Southern California Edison owns, operates and
maintains overhead electric distribution facilities, including distribution poles on which the
portion of the Equipment is to be installed, within the political jurisdiction of Lessee. Any
streetlights (other than Lessee -Owned Streetlights[ and Additional Lessee -Owned
Streetlights]) on, about and to which any portion of the Equipment is to be acquired,
constructed, furnished and installed are all subject to the applicable Pole Agreement, which
is currently in full force and effect. Lessee has obtained, or will have obtained prior to
disbursement from the Escrow Account for the related Equipment, all necessary licenses,
permits, approvals or other authorizations, if any, issued by any applicable governmental
authority and /or the Pole Owner in accordance with the applicable Pole Agreement for the
specific locations for the Equipment to be installed.
(m) [(i)] The portion of the Equipment that is and will be acquired and installed
on Lessee -Owned Streetlights are and will be located on, or on improvements within, a
right -of -way that is dedicated to public use for a period that is longer than the Scheduled
Term. Lessee is entitled to the benefit and use of such right -of -way for the Lessee -Owned
Streetlights and has good and marketable title to the Lessee -Owned Streetlights on, about
and to which a portion of the Equipment is or will be located. Subject to the Light Pole
License Agreement, there exists no mortgage, pledge, Lien, security interest, charge or
other encumbrance of any nature whatsoever on or with respect to the Lessee -Owned
Streetlights, except under this Agreement. [Subject to modification by a True -Up
Amendment, the number of Lessee -Owned Streetlights subject to Lessor's Lien under
this Agreement is and shall be at least equal to at all times (unless any such
Lessee -Owned Streetlights are permitted to be Retired Streetlights pursuant to
Section 5.04(c) hereof, in which case the number may be reduced by the number
CA Appropriation 72016 _10-
of such applicable Retired Streetlights).]
f(ii) Lessee is the fee owner with free and clear title to all the Additional
Lessee -Owned Streetlights. The Additional Lessee -Owned Streetlights are and will
be located on, or on improvements within, a right -of -way that is dedicated to public
use for a period that is longer than the Scheduled Term. Lessee is entitled to the
benefit and use of such right -of -way for the Additional Lessee -Owned Streetlights and
has good and marketable title to the Additional Lessee -Owned Streetlights on, about
and to which a portion of the Equipment is or will be located. Subject to the Light
Pole License Agreement, there exists no mortgage, pledge, Lien, security interest,
charge or other encumbrance of any nature whatsoever on or with respect to the
Additional Lessee -Owned Streetlights, except under this Agreement. Subject to
modification by a True -Up Amendment, the number of Additional Lessee -Owned
Streetlights subject to Lessor's first priority Lien under this Agreement is and shall
be at least equal to at all times (unless any such Additional Lessee -Owned
Streetlights are permitted to be Retired Streetlights pursuant to Section 5.04(c)
hereof, in which case the number may be reduced by the number of such
applicable Retired Streetlights). The insured value of each Additional Lessee -Owned
Streetlight shall equal or exceed the insured value of each Lessee -Owned Streetlight.
(iii) At all times, Lessee shall ensure that the number of Additional Lessee -
Owned Streetlights subject to Lessor's first priority Lien under this Agreement shall
equal at least 10% of the number of Lessee -Owned Streetlights. The sum of (A) the
aggregate number of Additional Lessee -Owned Streetlights subject to Lessor's first
priority Lien under this Agreement plus (B) the aggregate number of Lessee -Owned
Streetlights subject to Lessor's first priority Lien under this Agreement, is and shall
be at least equal to at all times (the "Required Collateral Amount') unless any
such Streetlights are permitted to be Retired Streetlights pursuant to Section 5.04(c)
hereof, in which case the number may be reduced by the number of such
applicable Retired Streetlights.]
(n) No lease, rental agreement, lease - purchase agreement, payment agreement
or contract for purchase to which Lessee has been a party at any time during the past ten
(10) years has been terminated by Lessee as a result of insufficient funds being
appropriated in any fiscal year. No event of default that Lessee did not cure during the
applicable cure period has existed or occurred under any debt, revenue bond or obligation
which Lessee has issued during the past ten (10) years.
(o) In connection with Lessor's remedies to obtain possession pursuant to
Section 12.02 of the portion of the Equipment that is or will be subject to the Pole
Agreement, Lessee has the authority to enter upon the premises where items of such
Equipment are located for the purpose of disconnecting, de- installing and removing such
items of Equipment from such premises, subject to compliance with the applicable Pole
Agreement.
CA Appropriation 72016 - I I -
(p) Lessee represents to Lessor that that it has adopted a debt policy in
compliance with SB 1029 and Section 8855 of the Government Code of California et seq.
and covenants that it shall comply with Section 8855 of the Government Code of California
et seq. throughout the Lease Term.
(q) Lessee has complied with the requirements of California Government Code
Section 37350 and 37351 et seq. and all other applicable California law in connection with
this Agreement and the Equipment.
(r) In connection with each request for a disbursement from the Escrow
Account to pay all or any portion of the Purchase Price (as defined in the Pole Agreement)
on [each Phase Closing Date and]g the Closing Date under the Pole Agreement, Lessee
shall (i) complete and submit to Lessor a certificate setting forth the details of the property,
equipment and /or streetlights acquired or adjusted under the Pole Agreement as a result of
the [related]9 [Inventory Inspection Period] in reasonable detail, substantially in the
form attached hereto as Exhibit K and (ii) provide Lessor with invoices and bills of sale
relating to all the property, equipment and streetlights purchased or reimbursed (or to be
purchased or reimbursed) with the proceeds of such disbursement and the payment of such
Purchase Price. If any of the property, equipment and /or streetlights acquired under the
Pole Agreement differs from the Equipment described on the Commencement Date, then
prior to requesting the disbursement from the Escrow Account to pay the [final] 10 Purchase
Price (as defined in the Pole Agreement) on the [final] I1 Closing Date, Lessee shall request
(pursuant to the form attached hereto as Exhibit K) that Lessor execute a True -Up
Amendment to add to, delete some of or modify the Equipment under this Agreement to
be consistent with the property, equipment and /or streetlights acquired under the Pole
Agreement following the [final] 12 [Inventory Inspection Period]. Lessee shall provide
Lessor with such other information that Lessor may reasonably request to substantiate the
change in or status of the property, equipment and /or streetlights acquired under the Pole
Agreement. Lessee and Lessor shall negotiate in good faith in determining any adjustment
to the Equipment based on the changes in the property, equipment and /or streetlights
acquired under the Pole Agreement and in connection therewith, Lessee and Lessor shall
execute a True -Up Amendment prior to the expiration of the Acquisition Period (or such
later period consented to by Lessor in its sole discretion). Lessee shall pay all of Lessor's
reasonable costs and expenses (including reasonable legal fees) in connection with the
execution and delivery of a True -Up Amendment and preparation and filing of
amendments to financing statements (personal property and fixture filings) and other
Include for multi -phase PSAs.
Include for multi -phase PSAs.
10 Include for multi -phase PSAs.
11 Include for multi -phase PSAs.
12 Include for multi -phase PSAs.
CA Appropriation 72016 -12-
documents which Lessor deems necessary or appropriate to establish and maintain Lessor's
security interest in the Equipment in connection with or following a True -Up Process. The
True -Up Process may not occur more than once during the Lease Term.
(s) Lessee is in compliance with all Pole Agreements, Light Pole License
Agreements, each WRCOG Agreement and each Vendor Agreement. Lessee shall deliver,
or cause to be delivered, to Lessor such information as Lessor shall request regarding
WRCOG, the WRCOG Agreements, the Pole Agreement, the Light Pole License
Agreement and the Vendor Agreements to the extent Lessee is in possession of such
information.
(t) Upon an Event of Default or an Event of Non - appropriation, Lessee shall at
Lessor's direction (subject to compliance with the Light Pole License Agreement) enter
onto the Real Property, including any Non - Lessee Real Property, and physically detach
and remove the Equipment and return the same to Lessor pursuant to Section 3.03 hereof.
(u) Except as set forth in the Light Pole License Agreement, to the best
knowledge of the Lessee, there exists no mortgage, pledge, Lien, security interest, reverter,
charge or other encumbrance of any nature whatsoever on or with respect to the Real
Property or the [Lessee- Owned] Streetlights that would adversely affect Lessee's first
priority Lien on and security interest in, the Equipment. In the event any Lien,
encumbrance, reverter, restriction, asserted encumbrance, claim, dispute or other issue
exists or arises with respect to the Lessee's legal title to or valid and marketable, beneficial
use and enjoyment of the Real Property or impairs or adversely impacts Lessor's right, title
or interest in the Equipment or any of Lessor's rights or remedies under this Agreement
with respect to the Equipment, (each of the foregoing referred to as a "Real Property
Issue"), Lessee will take all steps necessary to promptly quiet, resolve and /or eliminate
such Real Property Issue to the satisfaction of Lessor and ensure that Lessee and Lessor
have adequate access to and use of (including beneficial use and enjoyment of) the Real
Property for all purposes of the Equipment contemplated herein and Lessee shall, to the
extent it may legally agree to do so, ensure that its fee interest in the Real Property and
Lessor's right, title or interest in the Equipment and rights or remedies under this
Agreement with respect to the Equipment remain free and clear of Real Property Issues.
(v) Lessee has obtained, or will have obtained prior to disbursement from the
Escrow Account for the related Equipment, all necessary licenses, permits, approvals or
other authorizations, if any, issued by any applicable governmental authority to acquire,
construct, furnish and install the Equipment as contemplated by this Agreement.
(w) Lessee represents and warrants that as of the Commencement Date the Light
Pole License Agreement encumbers and affects only out of the _ Streetlights.
Lessee covenants and agrees that the Light Pole License Agreement is limited to permitting
Southern California Edison to attach its wireless communicating device used solely in
connection with Southern California Edison's utility operations together with associated
ancillary equipment owned by Southern California Edison to serve the purpose of
managing Southern California Edison's electrical grid and provision of electricity for
CA Appropriation 72016 -13-
Lessee's streetlights. Lessee covenants and agrees that the Light Pole License Agreement
will not at any time encumber or affect more than 5% of the streetlights comprising the
Equipment. To the extent the Light Pole License Agreement at any time encumbers or
affects more than 5% of the streetlights comprising the Equipment, any and all restrictions
on Lessor's rights and remedies hereunder being subject to the Light Pole License
Agreement shall automatically and immediately be limited to only 5% of the streetlights
comprising the Equipment and the parties shall enter into an amendment to this Agreement
to reflect such limited impact of the Light Pole License Agreement, provided that such
limited impact shall apply even if the parties fail to enter into such amendment.
(x) Lessee acknowledges and covenants that to the extent applicable to this
Agreement and /or any Related Agreement, Lessee is solely responsible for and shall
comply with the legal requirements under the California Government Code Chapter 11.5
§§ 8855 -8859 et seq., as amended (the "CDIACAct "). Without limiting the generality of
the foregoing, at the times and in the manner required by the CDIAC Act and the California
Debt and Investment Advisory Commission ( "CDIAC "), Lessee shall be solely
responsible for (i) preparing, submitting and filing the report of the proposed debt issuance
relating to this Agreement by the method required by CDIAC, (ii) preparing, submitting
and filing the report of final sale (and accompanying documents) relating to this Agreement
by the method required by CDIAC, (iii) submitting an annual report relating to the report
of final sale for this Agreement by the method required by CDIAC, and (iv) paying all fees
charged by CDIAC or the CDIAC Act relating to this Agreement, including, but not limited
to the fee in an amount equal to one - fortieth of one percent of the Acquisition Amount,
but not to exceed five thousand dollars ($5,000) relating to this Agreement.
ARTICLE III
Section 3.01. Lease of Equipment. Subject to the terms and conditions of this Agreement,
Lessor agrees to provide the Acquisition Amount to acquire the Equipment. Lessor hereby
demises, leases, and transfers to Lessee, and Lessee hereby acquires, rents and leases from Lessor,
the Equipment. The Lease Term may be continued, solely at the option of Lessee, at the end of
the Original Term or any Renewal Term for the next succeeding Renewal Term up to the maximum
Lease Term as set forth in the Payment Schedule. At the end of the Original Term and at the end
of each Renewal Term until the maximum Lease Term has been completed, Lessee shall be
deemed to have exercised its option to continue this Agreement for the next Renewal Term unless
Lessee shall have terminated this Agreement pursuant to Section 3.03 or Section 10.01. The terms
and conditions during any Renewal Term shall be the same as the terms and conditions during the
Original Term, except that the Rental Payments shall be as provided in the Payment Schedule.
Section 3.02. Continuation of Lease Term. Lessee intends, subject to Section 3.03, to
continue the Lease Term through the Original Term and all Renewal Terms and to pay the Rental
Payments due hereunder in each fiscal year that such Rental Payments are due. Lessee affirms
that sufficient funds are legally available to pay all Rental Payments when due during the current
fiscal year at the time of the execution of this Agreement, and Lessee reasonably believes that an
amount sufficient to make all Rental Payments during the entire Scheduled Term can be obtained
from legally available funds of Lessee at the time of execution of this Agreement. Lessee further
CA Appropriation 72016 -14-
intends to do all things lawfully within its power to obtain and maintain funds sufficient and
available to discharge its obligation to make Rental Payments due hereunder, including making
provision for such payments to the extent necessary in each budget or appropriation request
submitted and adopted in accordance with applicable provisions of law. Notwithstanding the
foregoing, the decision whether or not to budget and appropriate funds or to extend the Lease Term
for any Renewal Term is within the sole discretion of the governing body of Lessee.
Section 3.03. Nonappropriation. Lessee is obligated only to pay such Rental Payments as
may lawfully be made during Lessee's then current fiscal year from funds budgeted and
appropriated for that purpose. Should Lessee fail to budget, appropriate or otherwise make
available funds to pay Rental Payments following the then current Original Term or Renewal
Term, this Agreement shall be deemed terminated at the end of the then current Original Term or
Renewal Term. Lessee agrees to deliver notice to Lessor of such termination promptly after any
decision to non - appropriate is made, but failure to give such notice shall not extend the Scheduled
Term beyond such Original Term or then current Renewal Term. If this Agreement is terminated
in accordance with this Section, Lessee agrees to cease use of the Equipment and, subject to the
Light Pole License Agreement, peaceably remove and deliver to Lessor at Lessee's sole expense
the Equipment at the location(s) in the State of California to be specified by Lessor; provided, that
Lessee shall pay month -to -month rent at the Contract Rate for each month or part thereof that
Lessee fails to return the Equipment pursuant to this Section 3.03.
Section 3.04. Conditions to Lessor's Performance. (a) As a prerequisite to the performance
by Lessor of any of its obligations under this Agreement, Lessee shall deliver to Lessor, in form
and substance satisfactory to Lessor, the following:
(i) An Escrow Agreement substantially in the form attached hereto as Exhibit I,
satisfactory to Lessor and executed by Lessee and the Escrow Agent and Counterpart No.
1 of _ manually executed and serially numbered counterparts of this Agreement;
(ii) A certified copy of a resolution, ordinance or other official action of
Lessee's governing body, substantially in the form attached hereto as Exhibit C -1,
authorizing the execution and delivery of this Agreement and the Escrow Agreement and
performance by Lessee of its obligations under this Agreement and the Escrow Agreement;
(iii) A Certificate completed and executed by the Clerk or Secretary or other
comparable officer of Lessee, substantially in the form attached hereto as Exhibit C -2,
completed to the satisfaction of Lessor;
(iv) An opinion of counsel to Lessee substantially in the form attached hereto as
Exhibit D and otherwise satisfactory to Lessor;
(v) Evidence of insurance as required by Section 7.02 hereof;
(vi) All documents, including financing statements, affidavits, notices and
similar instruments, in form satisfactory to Lessor, which Lessor deems necessary or
appropriate at that time pursuant to Section 6.02;
CA Appropriation 72016 -15-
(vii) A Certificate completed and executed by an officer of the Lessee certifying
that (A) the Lessee is the fee owner of the real estate on which the Equipment is and will
be located and has good and marketable title thereto, and there exists no mortgage, pledge,
Lien, security interest, charge or other encumbrance of any nature whatsoever on or with
respect to such real estate, (B) the Equipment will be located on improvements within a
right -of -way that is dedicated to public use for a period that is longer than the Schedule
Term of this Agreement and /or (C) except as expressly disclosed in writing to the Lessor
prior to the Commencement Date and consented to in writing by the Lessor, no person or
entity other than Lessee has an interest in the real estate on which the Equipment is and
will be located;
(viii) Wire instructions for payments to be made to WRCOG, Vendors and
Form W -9 from WRCOG and each such Vendor;
(ix) A certified copy of any Surety Bond satisfying the conditions set forth in
Section 7.04, or, at Lessor's sole discretion, such Surety Bonds may be provided after the
Commencement Date, provided, however, that no "Disbursement Request" pursuant to the
Escrow Agreement shall be authorized by Lessor until such Surety Bonds satisfying the
conditions set forth in Section 7.04 have been delivered to Lessor;
(x) Invoices (and proofs of payment of such invoices, if Lessee seeks
reimbursement) and bills of sale as required by Section 5.01(b);
(xi) Fully executed copies of the Pole Agreement, the Light Pole License
Agreement, each WRCOG Agreement and each Vendor Agreement;
(xii) A "Summary of Expected Purchase Price and Facilities under Pole
Agreement on Commencement Date" completed and executed by Lessee, substantially in
the form attached hereto as Exhibit M, completed to the satisfaction of Lessor;
(xiii) To the extent applicable to this Agreement as provided by the CDIAC Act,
evidence that Lessee has prepared, submitted and filed the report of the proposed debt
issuance relating to this Agreement by the method required by CDIAC and the CDIAC
Act; and
(xiv) Such other items reasonably required by Lessor.
(b) In addition to satisfaction of the conditions set forth in subsection (a) of this
Section 3.04, the performance by Lessor of any of its obligations under this Agreement and the
Escrow Agreement shall be subject to: (i) no Material Adverse Change shall have occurred since
the date of this Agreement, (ii) no Event of Default or Event of Non- appropriation shall have
occurred and then be continuing and (iii) no event or condition has occurred which, with notice,
the passage of time or any combination of the foregoing would constitute an Event of Default or
Event of Non - appropriation under. this Agreement.
CA Appropriation 72016 -16-
(c) Subject to satisfaction of the foregoing, Lessor will deposit the Acquisition Amount
with the Escrow Agent for deposit into the Escrow Account as provided in the Escrow Agreement.
ARTICLE IV
Section 4.01. Rental Payments. Subject to Section 3.03, Lessee shall promptly pay Rental
Payments, in lawful money of the United States of America, to Lessor on the Rental Payment
Dates and in such amounts as provided in the Payment Schedule. Interest on the Acquisition
Amount shall begin to accrue as of the Commencement Date. If any Rental Payment or other
amount payable hereunder is not paid within ten (10) days of its due date, Lessee shall pay an
administrative late charge of five percent (5 %) of the amount not timely paid or the maximum
amount permitted by law, whichever is less. Rental Payments consist of principal and interest
components as more fully detailed on the Payment Schedule, the interest on which begins to accrue
as of the Commencement Date.
Section 4.02. Interest and Principal Components. A portion of each Rental Payment is
paid as, and represents payment of, interest, and the balance of each Rental Payment is paid as,
and represents payment of, principal as more fully detailed on the Payment Schedule.
Section 4.03. Rental Payments to Constitute a Current Expense of Lessee. Lessor and
Lessee understand and intend that the obligation of Lessee to pay Rental Payments shall constitute
a current expense of Lessee payable solely from its general fund or other funds that are legally
available for that purpose and shall not in any way be construed to be a debt of Lessee in
contravention of any applicable constitutional or statutory limitation or requirement concerning
the creation of indebtedness by Lessee, nor shall anything contained herein constitute a pledge of
the general tax revenues, funds or moneys of Lessee.
Section 4.04. Rental Payments to be Unconditional. Except as provided in Section 3.03,
the obligations of Lessee to make Rental Payments and to perform and observe the other covenants
and agreements contained in this Agreement shall be absolute and unconditional in all events
without abatement, diminution, deduction, set -off or defense, for any reason, including without
limitation any failure of the Equipment, any defects, malfunctions, breakdowns or infirmities in
the Equipment or any accident, condemnation or unforeseen circumstances, any disputes with the
Lessor, WRCOG or any Vendor of any Equipment, or disputes under any WRCOG Agreement,
or failure of WRCOG or any Vendor to deliver any Equipment or otherwise perform any of its
obligations for whatever reason under any Vendor Agreement or WRCOG Agreement, including
dissolution, bankruptcy, insolvency, reorganization or any similar event with respect to WRCOG
or any Vendor.
Section 4.05. Mandatory Prepayment. (A) Any funds not applied to Equipment Costs and
remaining in the Escrow Account on the earlier of (1) the expiration of the Acquisition Period or
(2) the date on which Lessee delivers to Lessor the executed Disbursement Request to effect the
final disbursement to pay (or reimburse) Equipment Costs from the Escrow Account (such
amounts remaining in the Escrow Account on the earlier of such dates,'referred to as the "Excess
Proceeds") and /or (B) any Surety Bond Proceeds that are not applied to the payment and
performance of the Vendor's obligations in accordance with the related Vendor Agreement: shall
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be applied by Lessor on each successive Rental Payment Date thereafter to all or a portion of the
Rental Payment due and owing in the succeeding twelve (12) months and any remaining amounts
shall be applied by Lessor as prepayment to the remaining unpaid Principal Portion owing
hereunder in the inverse order of Rental Payment Dates, on the following terms:
first, the portion of the Excess Proceeds or Surety Bond Proceeds, as the case may
be, that is equal to 5% or less of the original aggregate principal component of all Rental
Payments under this Agreement shall be applied to prepay principal components of Rental
Payments at a price of 100% of such prepaid principal components plus accrued interest
thereon at the Contract Rate to the prepayment date; and
second, any remaining Excess Proceeds or Surety Bond Proceeds, as the case may
be, if any, shall be applied to further prepay the principal component of Rental Payments
at a price of 102% of such prepaid principal components plus accrued interest thereon at
the Contract Rate to the prepayment date.
In connection with any prepayment pursuant to this Section 4.05, Lessee shall pay the
prepayment premium and interest portion of Rental Payments accrued to the prepayment date on
such principal portion to be prepaid from funds other than the Excess Proceeds. In connection
with any partial prepayment of Rental Payments, Lessor shall prepare a new Payment Schedule
and deliver the same to the Lessee, which shall be binding, absent manifest error.
ARTICLE V
Section 5.01. Delivery, Installation and Acceptance of Equipment. (a) Lessee shall order
the Equipment to be acquired and financed hereunder, cause the Equipment to be delivered and
installed at the location specified in the Equipment Schedule and pay any and all delivery and
installation costs and other Equipment Costs in connection therewith through a Disbursement
Request; provided that for costs in excess of the Acquisition Amount, Lessee shall pay such costs
directly from its own legally available funds. Lessee shall conduct such inspection and testing of
the Equipment as it deems necessary and appropriate in order to determine the Equipment's
capability and functionality in order to accept such Equipment. When the Equipment has been
delivered and installed, Lessee shall promptly accept such Equipment and evidence said
acceptance by executing and delivering Disbursement Requests to the Lessor pursuant to the
Escrow Agreement for the purpose of effecting disbursements from the Escrow Account to pay
(or reimburse) Equipment Costs for the Equipment so acquired and installed. In connection with
the execution and delivery by Lessee of the final Disbursement Request, Lessee shall deliver to
Lessor an "Acceptance Certificate" in the form attached hereto as Exhibit E.
(b) Lessee shall deliver to Lessor together with each Disbursement Request original
invoices (and proof of payment of such invoices if Lessee seeks reimbursement for prior
expenditures) and bills of sale or other evidence of title transfer relating to each item of Equipment
accepted by Lessee as evidenced by such Disbursement Request. Once approved, Lessor shall
deliver such Disbursement Request to the Escrow Agent for disbursement from the Escrow
Account in accordance with the Escrow Agreement.
CA Appropriation 72016 -18-
Section 5.02. Quiet Enjoyment of Equipment. So long as Lessee is not in default hereunder,
neither Lessor nor any entity claiming by, through or under Lessor, shall interfere with Lessee's
quiet use and enjoyment of the Equipment during the Lease Term.
Section 5.03. Location; Inspection. Once installed, no item of the Equipment will be
moved or relocated from the location specified for it in the Equipment Schedule without Lessor's
prior written consent, which consent shall not be unreasonably withheld[; provided that so long
as Lessor has at all times a first priority Lien and security interest on the Required Collateral
Amount of Streetlights, Lessee may temporarily or permanently move or relocate up to
13 Streetlights from time to time in order to address Lessee's governmental purposes;
provided further, that (i) Lessor shall retain at all times its first priority security interest on
such moved or relocated Streetlights, (ii) Lessee shall make and confirm all the
representations, warranties and covenants set forth in Section 2.01(k) to Lessor with respect
to such movement or relocation, and (iii) Lessee shall confirm in writing to Lessor that such
movement and relocation does not result in any change in the Collateral or Equipment
description, identifiers or ID number, and in the event such movement or relocation does
result in a change in the Collateral or Equipment description, identifiers or ID number,
Lessee shall pay all of Lessor's reasonable costs and expenses (including reasonable legal
fees) in connection with the execution and delivery of an amendment and preparation and
filing of amendments to financing statements (personal property and fixture filings) and
other documents which Lessor deems necessary or appropriate to establish and maintain
Lessor's security interest in the Collateral or Equipment in connection with such movement
or relocation]. No such consent will be required for repair and /or replacement of Equipment in
accordance with Section 5.04 hereof if such Equipment is repaired or replaced and returned to the
same original location. Lessor shall have the right at all reasonable times during regular business
hours to enter into and upon the property where the Equipment is located for the purpose of
inspecting the Equipment; provided that, unless an Event of Default or an Event of Non -
appropriation (or event which with the passage of time or the giving of notice or both would
constitute an Event of Default or an Event of Non - appropriation) has occurred, such inspection
may be subject to Lessee's encroachment proceedings to the extent applicable for safety purposes.
In the event of extreme weather - related events in which public safety is in jeopardy, the Lessee
shall provide Lessor with notice as soon as practicable of such event and any known potential or
actual impact to the Equipment, and the Lessor shall operate in good faith in taking such public
safety concerns into consideration in exercising its rights and remedies under this Agreement. If
in Lessee's reasonable determination any portion of the Equipment poses an imminent danger to
public safety (i.e. immediate serious risk of death or serious physical harm), without prior consent
of the Lessor the Lessee may temporarily remove or relocate the Equipment solely to prevent
immediate serious risk of death or serious physical harm to the public; provided that (x) the Lessee
shall provide Lessor with notice as soon as practicable of such event and any known potential or
actual impact to the Equipment, and (y) once the immediate serious risk of death or serious
physical harm the public has reasonably abated Lessee shall promptly fully restore, replace, repair
13 Before closing, we will hard code the # of Streetlights that can be temporarily moved for that deal. Every
deal using this provision must have 10% over -col lateral ization.
CA Appropriation 72016 -19-
and maintain the Equipment pursuant to Section 5.04 hereof and as otherwise required under this
Agreement.
Section 5.04. Use and Maintenance of the Equipment; Retired Streetlights. (a) Lessee, and
its agents, delegees and designees, shall not install, use, operate or maintain the Equipment (or
cause the Equipment to be installed, used, operated or maintained) in violation of any applicable
law or in a manner contrary to that contemplated hereby. Lessee shall provide all permits and
licenses, if any, necessary for the installation and operation of the Equipment. In addition, Lessee
agrees to comply in all respects with all applicable laws, regulations and rulings of any legislative,
executive, administrative, or judicial body, including, without limitation, all anti -money
laundering laws and regulations; provided that Lessee may contest in good faith the validity or
application of any such law, regulation or ruling in any reasonable manner that does not, in the
opinion of Lessor, adversely affect the interest of Lessor in and to the Equipment or its interest or
rights hereunder.
(b) Lessee agrees that it shall, either directly or through WRCOG, as provided in the
Implementation Agreement, (1) use, operate, protect, maintain, preserve, and keep the Equipment
in good repair, condition, appearance and operating order, in the same condition as when received,
ordinary wear and tear excepted; (2) use, operate, protect and maintain the Equipment
(i) consistent with prudent industry practice (but in no event less than the extent to which Lessee
maintains other similar equipment in the prudent management of its assets and properties) and (ii)
in compliance with California Public Utilities Commission Order 165 ( "Order 165") and all
applicable insurance policies, laws, ordinances, rules, regulations and manufacturer's
recommended maintenance and repair procedures, to the extent such procedures are not in conflict
with Order 165 to the extent Order 165 is in effect; (3) proceed promptly, at its expense, to protect
its rights and exercise its remedies under any warranty then in effect with respect to the Equipment
(although all such remedies shall be exercised by Lessee, the order of exercising remedies may be
prioritized in the most efficient manner); and (4) replace or rebuild any component of the
Equipment that becomes permanently unfit for normal use or inoperable during the Lease Term
(herein, the "Inoperable Component") in order to keep the Equipment as a whole in good repair
and working order during the Lease Term. Lessee shall promptly notify Lessor in writing if at any
time Equipment acquired (individually or in the aggregate) with five percent (5 %) or more of the
original Acquisition Amount (the "Noticed Equipment") is reasonably expected within forty -five
(45) days to be or become an Inoperable Component(s); provided if Lessee becomes aware that
any Noticed Equipment is or will become an Inoperable Component in a shorter time period,
Lessee shall notify Lessor in writing within five (5) business days of such receipt of knowledge.
Lessee shall promptly replace or rebuild, or cause to be replaced or rebuilt, the Inoperable
Component with a similar component of comparable or improved make and model that has at least
the equivalent value and utility of the Inoperable Component, a remaining useful life of no less
than the remaining Scheduled Term and such replacement or rebuilt component shall be in good
operating condition. Lessor shall have no responsibility to maintain, repair or make improvements
or additions to the Equipment. When and if available, Lessee agrees to pay any costs necessary
for the manufacturer to re- certify the Equipment as eligible for manufacturer's maintenance upon
the return of the Equipment to Lessor as provided for in Section 3.03 or 12.02(b), unless it is more
cost effective for Lessee to replace the Equipment in accordance with Section 8.01.
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(c) Notwithstanding anything herein to the contrary, so long as no Event of Default (or
event which with the passage of time or the giving of notice or both would constitute an Event of
Default) has occurred thereunder and no Event of Non - appropriation has occurred or is threatened,
Lessee may retire and exclude from the Equipment up to 14 Streetlights in the aggregate over
the course of the Lease Term (which number is subject to adjustment following modification by a
True -Up Amendment) without prepayment or penalty or obligation to replace such Streetlights,
provided that Lessee shall (i) provide Lessor with at least 30 days prior written notice substantially
in the form of Exhibit O attached hereto, (ii) re -make and confirm all the representations,
warranties and covenants set forth in this Agreement for the benefit of Lessor and (iii) confirm in
writing to Lessor, (1) the number of Streetlights being retired at that time, (2) the cumulative
number of Retired Streetlights under this Agreement taking into account the Streetlights then being
retired, (3) the number of Streetlights that will remain subject to this Agreement, (4) the number
of Lessee -Owned Streetlights that will remain subject to this Agreement [and (5) the number of
Additional Lessee -Owned Streetlights that will remain subject to this Agreement] and
provide such other information or confirmations with respect to the Retired Streetlights, the
Equipment and the Collateral as Lessor may request.
(d) Lessee shall not alter any item of Equipment or install any accessory, equipment or
device on an item of Equipment if that would impair any applicable warranty, the originally
intended function or the value of that Equipment. All repairs, parts, accessories, equipment and
devices furnished, affixed to or installed on any Equipment owned by Lessee, excluding temporary
replacements, shall thereupon become subject to the security interest of Lessor, subject to the Light
Pole License Agreement.
Section 5.05. Obligations Under Pole Agreement. Lessee hereby covenants and agrees
to perform, or cause to be performed, its duties and obligations under each Pole Agreement strictly
in accordance with the terms and provisions of each such Pole Agreement, for the purpose of
maintaining the benefits thereunder for the installation, operation and maintenance of the portion
of the Equipment subject to thereto during the Lease Term, including without limitation the timely
removal of such Equipment if and when required by the applicable Pole Agreement in order to
prevent such Equipment from becoming subject to any Lien or security interest in favor of Pole
Owner. Lessee shall maintain in full force and effect during the Lease Term each applicable Pole
Agreement until such time as full and marketable title in the streetlights, poles, related fixtures has
passed to and vested in Lessee. Lessee shall not abandon any such Equipment or exercise its
option, if any, to terminate the term of any Pole Agreement so long as any amount remains unpaid
under this Agreement.
ARTICLE VI
Section 601. Title to the Equipment. During the Lease Term, and so long as Lessee is not
in default under Article XII hereof, all right, title and interest in and to each item of the Equipment
14 Before closing, we will hard code the # of streetlights that can be permanently retired which cannot exceed
1% of the number of Lessee -Owned Streetlights under this Agreement. In connection with a True -Up
Amendment this number can be recalibrated.
CA Appropriation 72016 -21-
shall be vested in Lessee immediately upon its acceptance of each item of Equipment, subject to
the terms and conditions hereof. Subject to the Light Pole License Agreement, Lessee shall at all
times protect and defend, at its own cost and expense, its title in and to the Equipment and Lessor's
first priority security interest constituting a first Lien on the Collateral from and against all claims,
Liens and legal processes of its creditors, and keep all Equipment free and clear of all such claims,
Liens and processes. Upon the occurrence of an Event of Default or upon termination of this
Agreement pursuant to Section 3.03, full and unencumbered legal title to the Equipment shall, at
Lessor's option, pass to Lessor, and Lessee shall have no further interest therein. In addition, upon
the occurrence of such an Event of Default or such termination, Lessee shall execute and deliver
to Lessor such documents as Lessor may request to evidence the passage of such legal title to
Lessor and the termination of Lessee's interest therein, and upon request by Lessor (subject to the
Light Pole License Agreement) shall deliver possession of the Equipment to Lessor in accordance
with Section 3.03 or Section 12.02, as applicable. Upon payment of all amounts due and owing
hereunder by Lessee pursuant to Section 10.01 (including upon payment of all Rental payments
and other amounts payable under this Agreement), Lessor's security interest or other interest in
the Equipment shall terminate, and Lessor shall execute and deliver to Lessee such documents as
Lessee may request to evidence the termination of Lessor's security interest in the Equipment
(including applicable UCC -3 termination statements).
Section 6.02. Security Interest. As additional security for the payment and performance of
all of Lessee's obligations hereunder, Lessee hereby grants to Lessor a first priority security
interest constituting a first Lien (subject to the Light Pole License Agreement) on (a) the
Equipment together with all replacements, repairs, restorations, modifications and improvements
thereof or thereto made pursuant to this Agreement and all accessories, equipment, parts and
appurtenances appertaining or attached to any of the Equipment, and all substitutions, renewals,
or replacements of and additions, improvements, accessions and accumulations to any and all of
such Equipment, together with all the rents, issues, income, profits, proceeds and avails therefrom,
(b) the Escrow Account and moneys and investments held from time to time therein, (c) the
Collection Fund and the Rental Payment Subaccount and moneys and investments held from time
to time therein (but not the Administrative Fee Subaccount, the Annual Maintenance Subaccount
or the Re- lamping Reserve Subaccount), (d) all accounts, chattel paper, deposit accounts,
documents, instruments, general intangibles and investment property (including any securities
accounts and security entitlements relating thereto) evidenced by or arising out of or otherwise
relating to the foregoing collateral described in clauses (a), (b) and (c) above, as such terms are
defined in Article 9 of the California Commercial Code and (e) any and all proceeds of any of the
foregoing (collectively, the "Collateral"). Lessee authorizes Lessor to file (and Lessee agrees to
execute, if applicable) such notices of assignment, chattel mortgages, financing statements and
other documents, in form satisfactory to Lessor, which Lessor deems necessary or appropriate to
establish and maintain Lessor's security interest in the Equipment, the Escrow Account and the
proceeds thereof, including, without limitation, such financing statements with respect to personal
property and fixtures under Article 9 of the California Commercial Code and treating such Article
9 as applicable to entities such as Lessee.
Section 6.03. Personal Property, No Encumbrances. Lessee agrees that, to the extent
permitted by State law, the Equipment is deemed to be and will remain personal property, and will
not be deemed to be affixed to or a part of the real estate on which it may be situated,
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notwithstanding that the Equipment or any part thereof may be or hereafter become in any manner
physically affixed or attached to real estate or any building thereon. Other than the Light Pole
License Agreement (if and to the extent applicable) and encumbrances existing on the
Commencement Date that are consented to in writing by the Lessor and identified on Exhibit N
hereto, Lessee shall not create, incur, assume or permit to exist any mortgage, pledge, Lien,
security interest, charge or other encumbrance of any nature whatsoever on any of the real estate
where the Equipment is or will be located or enter into any agreement to sell or assign or enter into
any sale /leaseback arrangement of such real estate (each an 'Encumbering Instrument") without
the prior written consent of Lessor; provided, that if Lessor or its assigns is furnished with a waiver
of interest in the Equipment acceptable to Lessor or its assigns in its discretion from any party
taking an interest in any such real estate prior to such interest taking effect (which may be in the
form of an acknowledgement in the Encumbering Instrument of Lessor's purchase money first
priority security interest and rights in the Equipment and a carve -out of the Equipment from the
Lien of the Encumbering Instrument), such consent shall not be unreasonably withheld and
Lessor's response shall be provided within ten (10) business days of the request for such consent.
ARTICLE VII
Section 7.01. Liens, Taxes, Other Governmental Charges and Utility Charges. Lessee
shall keep the Equipment free of all levies, Liens, and encumbrances except those created by this
Agreement and in particular, Lessee shall not create, incur, assume, permit or suffer to exist Lien
or encumbrance with respect to the Equipment that impairs Lessee's use of the Equipment or has
an adverse effect on Lessor's rights, interests, security or remedies in and to the Equipment or
under this Agreement. Lessee shall promptly, at its own expense, take such action as may be
necessary to duly discharge or remove any such Lien or encumbrance, if the same shall arise at
any time; provided that Lessee may in good faith contest any such Lien or encumbrance, if it
provides reasonable security to Lessor against any loss or forfeiture upon Lessor's request. Except
as expressly limited by this Section, Lessee shall promptly pay (a) all utilities, sales and other
taxes, special assessments and other charges of any kind that are at any time lawfully assessed or
levied against or with respect to the Equipment, the Rental Payments or any part of either thereof,
or which become due during the Lease Term, whether assessed against Lessee or Lessor; and (b)
the fee charged by the California Debt and Investment Advisory Commission with respect to this
Agreement pursuant to Section 8856 (or any successor provision) of the California Government
Code. Lessee shall also pay all utility and other charges incurred in the operation, use and
maintenance of the Equipment. Lessee shall pay such taxes, assessments or charges as the same
may become due; provided that, with respect to any such utilities, taxes, assessments or charges
that may lawfully be paid in installments over a period of years, Lessee shall be obligated to pay
only such installments as accrue during the Lease Term; provided, further, Lessee may, at Lessee's
expense and in its name, in good faith contest any such taxes, assessments, or other charges in
good faith by appropriate proceedings which prevent enforcement of the matter under contest and
as to which adequate reserves have been established in accordance with generally accepted
accounting principles, and, in the event thereof such taxes, assessments, or other charges so
contested and reserved may remain unpaid during the period of such contest and any appeal
therefrom. Lessee shall not be required to pay any federal, state or local income, inheritance,
estate, succession, transfer, gift, franchise, gross receipts, profit, excess profit, capital stock,
corporate, or similar tax payable by Lessor, its successors or assigns, unless such tax is made in
CA Appropriation 72016 -23-
lieu of or as a substitute for any tax, assessment or charge which is the obligation of Lessee under
this Section. During the Lease Term, Lessor will not claim ownership of the Equipment for the
purposes of any tax credits, benefits or deductions with respect to the Equipment.
Section 7.02. Insurance. Lessee shall during the Lease Term maintain or cause to be
maintained (a) casualty insurance naming Lessor and its assigns as loss payee and insuring the
Equipment against loss or damage by fire and all other risks covered by the standard extended
coverage endorsement then in use in the State, and any other risks reasonably required by Lessor,
in an amount at least equal to the greater of (i) the then applicable Prepayment Price of the
Equipment or (ii) the replacement cost of the Equipment; (b) liability insurance naming Lessor
and its assigns as additional insured that protects Lessor from liability with limits of at least
$5,000,000 per occurrence for bodily injury and property damage coverage (such liability
insurance coverage may be in a combination of primary general liability and /or excess liability
umbrella coverage), and in all events in form and amount satisfactory to Lessor; and (c) worker's
compensation coverage as required by the laws of the State; provided that, with Lessor's prior
written consent, Lessee may self - insure against the risks described in clauses (a) and /or (b). In the
event Lessee is permitted, at Lessor's sole discretion, to self - insure as provided in this Section
7.02, Lessee shall provide to Lessor a self - insurance letter in substantially the form attached hereto
as Exhibit F. Lessee shall furnish to Lessor evidence of such insurance or self - insurance coverage
throughout the Lease Term. Lessee shall not cancel or modify such insurance or self - insurance
coverage in any way that would affect the interests of Lessor without first giving written notice
thereof to Lessor at least thirty (30) days in advance of such cancellation or modification.
Section 7.03. Risk of Loss. Whether or not covered by insurance or self - insurance, Lessee
hereby assumes all risk of loss of, or damage to and liability related to injury or damage to any
persons or property arising from the Equipment from any cause whatsoever, and no such loss of
or damage to or liability arising from the Equipment shall relieve Lessee of the obligation to make
the Rental Payments or to perform any other obligation under this Agreement. Whether or not
covered by insurance or self - insurance, Lessee hereby agrees to reimburse Lessor (to the fullest
extent permitted by applicable law, but only from legally available funds for any and all liabilities,
obligations, losses, costs, claims, taxes or damages suffered or incurred by Lessor, regardless of
the cause thereof and all expenses incurred in connection therewith (including, without limitation,
counsel fees and expenses, and penalties connected therewith imposed on interest received) arising
out of or as a result of (a) entering into of this Agreement or any of the transactions contemplated
hereby, (b) the ordering, acquisition, ownership use, operation, condition, purchase, delivery,
acceptance, rejection, storage or return of any item of the Equipment, (c) any accident in
connection with the operation, use, condition, possession, storage or return of any item of the
Equipment resulting in damage to property or injury to or death to any person, and /or (d) the breach
of any covenant of Lessee under or in connection with this Agreement or any material
misrepresentation provided by Lessee under or in connection with this Agreement. The provisions
of this Section 7.03 shall continue in full force and effect notwithstanding the full payment of all
obligations under this Agreement or the termination of the Lease Term for any reason.
Section 7.04. Surety Bonds; Lessee to Pursue Remedies Against Contractors and
Sub - Contractors and Their Sureties. Lessee shall, or shall cause WRCOG to, secure from the
Vendor under the Professional Services Agreement and any successor, assignee or replacement
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thereto, directly employed by Lessee in connection with the acquisition, construction, installation,
improvement or equipping of the Equipment from the proceeds of this Agreement, a Surety Bond
executed by a surety company authorized to do business in the State, having a financial strength
rating by A.M. Best Company of "A -" or better, and otherwise satisfactory to Lessor and naming
Lessor as a co- obligee in a sum equal to the entire amount to become payable under each Vendor
Agreement. Each bond shall be conditioned on the completion of the work in accordance with the
plans and specifications for the Equipment and upon payment of all claims of subcontractors and
suppliers. Lessee shall cause the surety company to add Lessor as a co- obligee on each Surety
Bond, and shall deliver a certified copy of each Surety Bond to Lessor promptly upon receipt
thereof by Lessee. Any proceeds from a Surety Bond ( "Surety Bond Proceeds") shall be applied
in accordance with such Surety Bond to the payment and performance of the Vendor's obligations
in accordance with the related Vendor Agreement and, if for whatever reason such proceeds are
not so applied, then first to amounts due to Lessor under this Agreement pursuant to Section 4.05
hereof, and any remaining amounts shall be payable to Lessee.
In the event of a material default of WRCOG or any Vendor under any WRCOG
Agreement or Vendor Agreement in connection with the acquisition, construction, maintenance
and /or servicing of the Equipment or in the event of a material breach of warranty with respect to
any material workmanship or performance guaranty with respect to the Equipment, Lessee will
promptly proceed to exhaust its remedies against WRCOG or the Vendor in default, as applicable
(although all such remedies shall be exercised by Lessee, the order of exercising remedies may be
prioritized in the most efficient manner). Lessee shall advise Lessor of the steps it intends to take
in connection with any such default. Any amounts received by Lessee in respect of damages,
refunds and adjustments or otherwise in connection with the foregoing ( "Vendor Proceeds") shall
be paid to Lessor and applied against Lessee's obligations hereunder pursuant to the prepayment
provisions in Section 10.01(b), unless otherwise approved in writing by Lessor.
Section 7.05. Advances. In the event Lessee shall fail to keep the Equipment in good repair
and working order or shall fail to maintain any insurance required by Section 7.02, Lessor may,
but shall be under no obligation to, maintain and repair the Equipment or obtain and maintain any
such insurance coverages, as the case may be, and pay the cost thereof. All amounts so advanced
by Lessor shall constitute additional rent for the then current Original Term or Renewal Term and
Lessee covenants and agrees to pay such amounts so advanced by Lessor with interest thereon
from the date advanced until paid at a rate equal to the Contract Rate plus 5% per annum or the
maximum amount permitted by law, whichever is less; provided, however, Lessor shall provide
notice to Lessee of any such event.
ARTICLE VIII
Section 8.01. Damage, Destruction and Condemnation. If, prior to the termination of the
Lease Term, (a) the Equipment or any portion thereof is destroyed, in whole or in part, or is
damaged by fire or other casualty or (b) title to, or the temporary use of, the Equipment or any part
thereof shall be taken under the exercise or threat of the power of eminent domain by any
governmental body or by any person, firm or corporation acting Pursuant to governmental
authority, (i) Lessee and Lessor will cause the Net Proceeds of any insurance claim or
condemnation award or sale under threat of condemnation to be applied to the prompt replacement,
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repair, restoration, modification or improvement of the Equipment or such part thereof and any
balance of the Net Proceeds remaining after such work has been completed shall be paid to Lessee
or (ii) Lessee shall exercise its option to prepay the obligations hereunder in accordance with
Section 10.01(b).
If Lessee elects to replace any item of the Equipment (the "Replaced Equipment ") pursuant
to this Section, the replacement equipment (the "Replacement Equipment ") shall be new or of a
similar quality, type, utility and condition at least as good as the Replaced Equipment and shall be
of equal or greater value than the Replaced Equipment. Subject to the Light Pole License
Agreement, if applicable, Lessee shall grant to Lessor a first priority security interest in any such
Replacement Equipment. Lessee shall represent, warrant and covenant to Lessor that each item of
Replacement Equipment is free and clear of all claims, Liens, security interests and encumbrances,
excepting only those Liens created by or through Lessor, and the Light Pole License Agreement,
if applicable, and shall provide to Lessor any and all documents as Lessor may reasonably request
in connection with the replacement, including, but not limited to, documentation in form and
substance satisfactory to Lessor evidencing Lessor's security interest in the Replacement
Equipment. Lessor and Lessee hereby acknowledge and agree that any Replacement Equipment
acquired pursuant to this paragraph shall constitute "Equipment" for purposes of this Agreement.
Lessee shall complete the aforementioned documentation relating to the Replacement Equipment
(such as documentation evidencing Lessee's title to the Replacement Equipment free and clear of
all claims, Liens, security interests and encumbrances subject only to Lessor's security interest in
the Replacement Equipment), on or before the next Rental Payment Date after the occurrence of a
casualty event, or be required to exercise its option to prepay the obligations hereunder with respect
to the damaged Equipment in accordance with Section 10.01(b).
For purposes of this Article VIII, the term "Net Proceeds" shall mean the amount
remaining from the gross proceeds of any insurance claim or condemnation award or sale under
threat of condemnation after deducting all expenses, including attorneys' fees, incurred in the
collection thereof.
Section 8.02. Insufficiency of Net Proceeds. (a) If the Net Proceeds are insufficient to pay
in full the cost of any repair, restoration, modification or improvement referred to in Section 8.01,
Lessee shall, to the extent permitted by law and in any event solely from legally available funds,
either (i) complete such replacement, repair, restoration, modification or improvement and pay any
costs thereof in excess of the amount of the Net Proceeds, or (ii) pay or cause to be paid to Lessor
the amount of the then applicable Prepayment Price, and, upon such payment, the Lease Term
shall terminate and Lessor's security interest in the Equipment shall terminate as provided in
Section 6.01 hereof.
(b) If (x) at least 10% and no more than 50% of the Equipment under this Agreement
is destroyed, or is damaged by fire or other casualty or title to, or the temporary use of, at least
10% and no more than 50% of the Equipment under this Agreement shall be taken under the
exercise or threat of the power of eminent domain by any governmental body or by any person,
firm or corporation acting pursuant to governmental authority, and (y) the Net Proceeds are
insufficient to pay in full the cost of any replacement, repair, restoration, modification or
improvement referred to in Section 8.01, then, no more than once during the Lease Term, in lieu
CA Appropriation 72016 -26-
of paying the full applicable Prepayment Price as described in Section 8.02(a)(ii) above, Lessee
shall have the option of partially prepaying the related Rental Payments pursuant to Section
10.01(b)(2) hereof from legally available funds.
(c) The amount of the Net Proceeds, if any, remaining after completing such repair,
restoration, modification or improvement or after prepaying Rental Payments in full and
purchasing such Equipment shall be retained by Lessee. If Lessee shall make any payments
pursuant to this Section 8.02 to complete such replacement, repair, restoration, modification or
improvement, Lessee shall not be entitled to any reimbursement therefor from Lessor nor shall
Lessee be entitled to any diminution of the amounts payable under Article IV.
ARTICLE IX
Section 9.01. Disclaimer of Warranties. Lessor makes no warranty or representation,
either express or implied, as to the value, design, condition, merchantability or fitness for particular
purpose or fitness for use of any of the Equipment, or any other warranty or representation, express
or implied, with respect thereto and, as to Lessor, Lessee's acquisition of the Equipment shall be
on an "as is" basis. In no event shall Lessor be liable for any incidental, indirect, special or
consequential damage in connection with or arising out of this Agreement, the Equipment or the
existence, furnishing, functioning or Lessee's use of any item, product or service provided for in
this Agreement.
Section 9.02. Amendments of Transaction Documents; Warranties. (a) Lessee covenants
that it shall not amend, modify, rescind, waive or alter the Paying Agent Agreement without the
prior written consent of Lessor.
(b) Lessee covenants that prior to the satisfactory receipt by Lessor of the Acceptance
Certificate (Exhibit E), without the prior written consent of the Lessor it shall not in any material
respect amend, modify, rescind, waive or alter (or permit the assignment or transfer of) any Pole
Agreement, any Light Pole License Agreement, the Implementation Agreement, the Professional
Services Agreement, the WRCOG EPA and /or any Vendor Agreement.
(c) Lessee covenants that after the satisfactory receipt by Lessor of the Acceptance
Certificate, without the prior written consent of the Lessor it shall not amend, modify, rescind,
waive or alter (or permit the assignment or transfer of) any Pole Agreement, any Light Pole License
Agreement, the Implementation Agreement, the Professional Services Agreement, the WRCOG
EPA or any Vendor Agreement if doing so could result in a Material Adverse Change or a Material
Adverse Effect.
(d) At all times after the satisfactory receipt by Lessor of the Acceptance Certificate,
Lessee covenants to provide Lessor with at least fifteen (15) business days' prior written notice of
any proposed amendment, modification, rescission, waiver, assignment, transfer or alteration
(each a "Change ") of any Pole Agreement, any Light Pole License Agreement, the
Implementation Agreement, the Professional Services Agreement, the WRCOG EPA and /or any
Vendor Agreement, in each case that the Change will not result in a Material Adverse Change or
a Material Adverse Effect.
CA Appropriation 72016 -27-
(e) Lessor hereby irrevocably appoints Lessee its agent and attorney -in -fact during the
Lease Term, so long as no Event of Non- appropriation has occurred and Lessee shall not be in
default under this Agreement, to assert from time to time whatever claims and rights (including
without limitation warranties) relating to the Equipment that Lessor may have against Southern
California Edison under the Pole Agreement or WRCOG under the WRCOG Agreements or
Vendor under the Vendor Agreements. Lessee's sole remedy for the breach of such warranty,
indemnification or representation shall be against Southern California Edison under the Pole
Agreement, if applicable, WRCOG and the applicable Vendor of the Equipment, and not against
Lessor. Any such matter shall not have any effect whatsoever on the rights and obligations of
Lessor hereunder, including the right to receive full and timely Rental Payments and other
payments hereunder. Lessee expressly acknowledges that Lessor makes, and has made, no
representations or warranties whatsoever as to the existence or the availability of such warranties
relating to any Equipment.
ARTICLE X
Section 10.01. Prepayment Option. In addition to the prepayment provided by Section 4.05
hereof, Lessee shall have the option to prepay (or satisfy, pursuant to (c) below) its obligations
hereunder at the following times and upon the following terms:
(a) Optional Prepayment. From and after the date specified (if any) in the
Payment Schedule (the "Prepayment Option Commencement Date "), on the Rental
Payment Dates specified in the Payment Schedule, upon not less than thirty (30) days' prior
written notice, and upon payment in full of the sum of (i) the Rental Payments then due
and all other amounts then owing hereunder plus (ii) the then applicable Prepayment Price,
which shall include a prepayment premium on the unpaid Outstanding Balance as set forth
in the Payment Schedule plus (iii) all other amounts then owing hereunder; or
(b) Casualty, Condemnation or Vendor Proceeds Prepayment. (1) In the event
of substantial damage to or destruction, title defect or condemnation of all or a majority of
the Equipment (i.e. more than 50% of the Equipment) or in the event Lessee receives any
Vendor Proceeds, on the day specified in Lessee's notice to Lessor of its exercise of the
prepayment option (which shall be the earlier of the next applicable Rental Payment Date
or sixty (60) calendar days after the casualty, title defect or condemnation event or receipt
of Vendor Proceeds) upon payment in full to Lessor (A) in the event such prepayment
occurs on a Rental Payment Date, the sum of (i) all Rental Payments then due plus (ii) the
then applicable Prepayment Price, which shall include a prepayment premium on the
unpaid Outstanding Balance as set forth in the Payment Schedule plus (iii) all other
amounts then owing hereunder or (B) in the event such prepayment occurs on a date other
than a Rental Payment Date, the sum of (i) of the applicable Prepayment Price shown on
the Payment Schedule for the Rental Payment Date immediately preceding the prepayment
date (or if such prepayment date occurs prior to the first Rental Payment Date, the earliest
Prepayment Price shown on the Payment Schedule), which shall include a prepayment
premium on the unpaid Outstanding Balance as set forth in the Payment Schedule plus (ii)
accrued interest at the Contract Rate on the Outstanding Balance as of the Rental Payment
Date immediately preceding the applicable prepayment date from such Rental Payment
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Date (or if such prepayment date occurs prior to the first Rental Payment Date, the
Commencement Date) to such prepayment date plus (iii) all other amounts then owing
hereunder; or
(2) If (A)(x) at least 10% and no more than 50% of the Equipment is
destroyed, or is damaged by fire or other casualty or title to, or the temporary use
of at least 10% and no more than 50% of the Equipment shall be taken under the
exercise or threat of the power of eminent domain by any governmental body or by
any person, firm or corporation acting pursuant to governmental authority, and (y)
the Net Proceeds are insufficient to pay in full the cost of any replacement, repair,
restoration, modification or improvement referred to in Section 8.01, or (B) Lessee
receives any Vendor Proceeds, then, no more than once during the Lease Term, in
lieu of paying the full applicable Prepayment Price for the Equipment as described
in Section 10.01(b)(1) above, Lessee shall have the option of partially prepaying
the Rental Payments by paying or causing to be paid to Lessor on the Partial
Prepayment Date the principal portion of Rental Payments that are then unpaid
under this Agreement in the amount equal to the Disposed Equipment Prepayment
Amount plus accrued interest on such amount from the Rental Payment Date next
preceding the applicable Partial Prepayment Date to such date plus all other
amounts then due and owing by Lessee under this Agreement. If a Partial
Prepayment Date is also a Rental Payment Date, Lessee shall also pay any Rental
Payment due as of such date and all other amounts then due and owing by Lessee
hereunder. Upon Lessor's receipt of the Disposed Equipment Prepayment Amount
on the applicable Partial Prepayment Date plus all other amounts then due and
owing by Lessee under this Section 10.01(b)(2), Lessor shall adjust the Rental
Payments to be paid by Lessee from and after the applicable Partial Prepayment
Date to reflect credit for payment of the Disposed Equipment Prepayment Amount
as directed by Lessor either in the inverse order of the applicable Rental Payment
Dates or on a pro rata basis (after giving effect to the application of such partial
prepayment to remaining Rental Payments on an inverse or pro rata basis) for the
remainder of the Scheduled Term will satisfy the proviso set forth above in this
Section 10.01(b)(2); or
(c) Payment in Full. Upon the expiration of the Lease Term, upon payment in
full of all Rental Payments then due and all other amounts then owing hereunder to Lessor.
After (i) payment of the applicable Prepayment Price and all other amounts then owing
hereunder in accordance with Section 10.01(a) or (b) of this Agreement or (ii) upon the expiration
of the Lease Term, payment in full of all Rental Payments then due and all other amounts then
owing hereunder in accordance with Section 10.01(c) of this Agreement, Lessor's security
interests in and to the Equipment (or portion thereof so prepaid) will be terminated and Lessee will
own such Equipment (or portion thereof so prepaid) free and clear of Lessor's security interest in
such Equipment.
CA Appropriation 72016 -29-
ARTICLE XI
Section 11.01. Assignment by Lessor. [Lessor is entering into this Lease Agreement for
its own account without a present intention to sell, or transfer, however] 15 (a) Lessor's right,
title and interest in and to this Agreement, the Rental Payments and any other amounts payable by
Lessee hereunder, the Escrow Agreement, its security interest in the Collateral (collectively, the
"Assigned Rights") may be assigned and reassigned by Lessor at any time, in whole or in part, to
one or more assignees or sub - assignees, without the necessity of obtaining the consent of Lessee;
provided, that any such assignment, transfer or conveyance (i) shall be made only to investors each
of whom Lessor reasonably believes is a "qualified institutional buyer" as defined in Rule
144A(a)(1) promulgated under the Securities Act of 1933, as amended, or an "accredited investor"
as defined in Section 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities
Act of 1933, as amended, and in either case is purchasing the Assigned Rights (or any interest
therein) for its own account with no present intention to resell or distribute such Assigned Rights
(or interest therein), subject to each investor's right at any time to dispose of the Assigned Rights
(or any interest therein) as it determines to be in its best interests, (ii) shall not result in more than
35 owners of the Assigned Rights or the creation of any interest in the Assigned Rights in an
aggregate principal component that is less than $100,000 and (iii) shall not require Lessee to make
Rental Payments to more than one hereinafter defined Lease Servicer at a time (or if the Paying
Agent Agreement is in effect, to anyone other than the Paying Agent under the Paying Agent
Agreement), to send notices or otherwise to deal with respect to matters arising hereunder or under
the Escrow Agreement with or to more than one Lease Servicer (as such term is defined below),
and any trust agreement, participation agreement or custodial agreement under which multiple
ownership interests in,the Assigned Rights are created shall provide the method by which the
owners of such interests shall establish the rights and duties of a single entity, trustee, owner,
Servicer or other fiduciary or agent acting on behalf of all of the assignees (herein referred to as
the "Lease Servicer ") to act on their behalf with respect to the Assigned Rights, including with
respect to the exercise of rights and remedies of Lessor on behalf of such owners upon the
occurrence of an Event of Default or an Event of Non - appropriation under this Agreement. Lessor
shall endeavor to provide written notice of any such assignment or reassignment at least three (3)
business days prior to such assignment or reassignment, but in any event Lessor shall provide
Lessee with such notice prior to any such assignment or reassignment (and such notice shall
disclose the name and address of each such assignee and the Lease Servicer, if any). Lessor and
Lessee hereby acknowledge and agree that the restrictions and limitations on transfer as provided
in this Section 11.01 shall apply to the first and subsequent assignees and sub - assignees of any of
the Assigned Rights (or any interest therein). To the extent applicable, Lessor shall comply with
Sections 5950 -5955 of the California Government Code and any other applicable law in assigning
the Assigned Rights, and Lessee shall not be responsible for Lessor's non - compliance with
applicable law in connection with an assignment.
(b) Subject to Section 11.01(a), unless to an affiliate controlling, controlled by or under
common control with Lessor, no assignment, transfer or conveyance permitted by this
Section 11.01 shall be effective as against Lessee until Lessee shall have received a written notice
15 Confirm before closing each deal.
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of assignment that discloses the name and address of each such assignee, identifies the new sole
Lease Servicer, if applicable, and an investment letter in substantially the form attached as Exhibit
L attached hereto (the "Investor Letter") from such assignee; provided, that if such assignment is
made to a bank or trust company as trustee or paying agent for owners of certificates of
participation, participation interests, trust certificates or partnership interests with respect to the
Rental Payments payable under this Agreement, it shall thereafter be sufficient that Lessee receives
notice of the name and address of the bank, trust company or other entity that acts as the Lease
Servicer and no Investor Letter is required; provided further that any such assignment, transfer or
conveyance shall occur only on a private placement basis (and not pursuant to any "public
offering "). Notices of assignment provided pursuant to this Section 11.01(b) shall contain a
confirmation of compliance with the transfer requirements imposed by Section 11.01(a) hereof.
Lessee shall retain all such notices as a register of all assignees and shall make all payments to the
assignee or assignees or Lease Servicer last designated in such register. Lessee shall not have the
right to and shall not assert against any assignee any claim, counterclaim or other right Lessee may
have against Lessor, Southern California Edison, WRCOG or any Vendor. Assignments in part
may include without limitation assignment of all of Lessor's security interest in and to the
Equipment and all rights in, to and under this Agreement related to such Equipment, and all of
Lessor's security interest in and to the Escrow Account, or all rights in, to and under the Escrow
Agreement.
(c) If Lessor notifies Lessee of its intent to assign this Agreement, Lessee agrees that it
shall execute and deliver to Lessor a Notice and Acknowledgement of Assignment substantially
in the form of Exhibit H attached hereto within five (5) business days after its receipt of such
request.
Section 11.02. Assignment and Subleasing by Lessee. None of Lessee's right, title, and
interest in, to and under this Agreement or any portion of the Equipment or the Escrow
Agreement or the Escrow Account may be assigned, encumbered or subleased by Lessee for
any reason, and any purported assignment, encumbrance or sublease without Lessor's prior
written consent shall be null and void.
ARTICLE XII
Section 12.01. Events of Default Defined. Any of the following events shall constitute an
"Event of Default" under this Agreement:
(a) Failure by Lessee to (i) pay any Rental Payment or other payment required
to be paid under this Agreement within ten (10) days after the date when due as specified
herein, (ii) maintain insurance as required herein, or (iii) observe and perform any
covenant, condition or agreement on its part to be observed or performed under Section
2.01(k), [2.01(m)] 2.01(r), 2.01(u), 2.01(w), [5.03,] 6.01 or 6.02 hereof,
(b) Failure by Lessee to observe and perform any covenant, condition or
agreement contained in this Agreement on its part to be observed or performed, other than
as referred to in subparagraph (a) above, for a period of thirty (30) days after written notice
specifying such failure and requesting that it be remedied is given to Lessee by Lessor,
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unless Lessor shall agree in writing to an extension of such time prior to its expiration;
provided that, if the failure stated in the notice cannot be corrected within the applicable
period, Lessor will not unreasonably withhold its consent to an extension of such time if
corrective action is instituted by Lessee within the applicable period and diligently pursued
until the default is corrected;
(c) Any statement, representation or warranty made by Lessee in or pursuant to
this Agreement or its execution, delivery or performance shall prove to have been false,
incorrect, misleading, or breached in any material respect on the date when made;
(d) Any default occurs under any other agreement for borrowing money, lease
financing of property or otherwise receiving credit under which Lessee is an obligor, if
such default (i) arises under any other agreement for borrowing money, lease financing of
property or provision of credit provided by Lessor or any affiliate of Lessor, or (ii) arises
under any obligation for governmental funds (other than enterprise revenues specifically
and solely pledged to the repayment of other obligations) under which there is outstanding,
owing or committed an aggregated amount in excess of $1,000,000 in each case under
which the Lessee is an obligor, and such default remains uncured following the applicable
cure period, if any, and either (1) arises from a failure to pay any amounts due with respect
to such agreement for borrowing money, lease financing of property or provision of credit
and /or (2) causes or permits amounts to become immediately due and payable in full as a
result of such default. In event of a default under this 12.01(d), prior to exercising any
remedies under Section 12.02 of this Agreement, the Lessor shall enter into good faith
negotiations with Lessee to ensure the continued payment of Rental Payments and
performance of Lessee's obligations under this Agreement;
(e) Lessee shall (i) apply for, or consent to, the appointment of a receiver,
trustee, custodian or liquidator of Lessee, or of all or a substantial part of the assets of
Lessee, (ii) be unable, fail or admit in writing its inability generally to pay its debts as they
become due, (iii) make a general assignment for the benefit of creditors, (iv) have an order
for relief entered against it under applicable federal bankruptcy law, or (v) file a voluntary
petition in bankruptcy or a petition or an answer seeking reorganization or an arrangement
with creditors or taking advantage of any insolvency law or any answer admitting the
material allegations of a petition filed against Lessee in any bankruptcy, reorganization,
moratorium or insolvency proceeding;
(f) An order, judgment or decree shall be entered by any court of competent
jurisdiction, approving a petition or appointing a receiver, trustee, custodian or liquidator
for Lessee or of all or a substantial part of the assets of Lessee, in each case without its
application, approval or consent, and such order, judgment or decree shall continue
unstayed and in effect for any period of thirty (30) consecutive days;
(g) Any Pole Agreement shall be terminated (whether by Lessee, the Pole
Owner or otherwise) for any reason whatsoever prior to such time as full and marketable
title in the Equipment purchased thereunder has passed to and vested in Lessee; or
CA Appropriation 72016 -32-
(h) Any license granted pursuant to any Pole Agreement and relating to any
Equipment shall be canceled, terminated, suspended, revoked or otherwise not in full force
and effect at any time during the Lease Term.
Section 12.02. Remedies on Default. Whenever any Event of Default exists, Lessor shall
have the right, at its sole option without any further demand or notice, to take one or any
combination of the following remedial steps:
(a) By written notice to Lessee, Lessor may declare all Rental Payments
payable by Lessee and other amounts payable by Lessee hereunder to the end of the then
current Original Term or Renewal Term to be immediately due and payable;
(b) With or without terminating the Lease Term, but subject to the Light Pole
License Agreement, Lessor may enter the premises where the Equipment is located and
retake possession of such Equipment or require Lessee at Lessee's expense to promptly
return any or all of such Equipment to the possession of Lessor at such place within the
State of California as Lessor shall specify, and sell or lease such Equipment or, for the
account of Lessee, sublease such Equipment, continuing to hold Lessee liable, but solely
from legally available funds, for the difference between (i) the Rental Payments payable
by Lessee and other amounts hereunder that are payable by Lessee to the end of the then
current Original Term or Renewal Term, as the case may be, and (ii) the net proceeds of
any such sale, leasing or subleasing (after deducting all expenses of Lessor in exercising
its remedies hereunder, including without limitation all expenses of taking possession,
storing, reconditioning and selling or leasing such Equipment, any costs related to removal
of equipment owned by Southern California Edison or other equipment, and all brokerage,
auctioneer's and attorney's fees), subject, however, to the provisions of Section 3.03 and
provided, that to the extent that such net proceeds (after payment of costs) exceed the sum
of the remaining Rental Payments and any other amounts due to Lessor hereunder, Lessor
shall promptly pay the amount of such excess to Lessee. The exercise of any such remedies
respecting any such Event of Default shall not relieve Lessee of any other liabilities
hereunder or with respect to the Equipment;
(c) Lessor may terminate the Escrow Agreement and apply any proceeds in the
Escrow Account to the Rental Payments scheduled to be paid hereunder; and /or
(d) Lessor may take whatever action at law or in equity may appear necessary
or desirable to enforce its rights under this Agreement or the Escrow Agreement or as a
secured party in any or all of the Equipment or the Escrow Account.
Section 12.03. No Remedy Exclusive. No remedy herein conferred upon or reserved to
Lessor is intended to be exclusive and every such remedy shall be cumulative and shall be in
addition to every other remedy given hereunder now or hereafter existing at law or in equity. No
delay or omission to exercise any right or power accruing upon any default shall impair any such
right or power or shall be construed to be a waiver thereof, but any such right or power may be
exercised from time to time and as often as may be deemed expedient. In order to entitle Lessor
CA Appropriation 72016 -33-
to exercise any remedy reserved to it in this Article XII it shall not be necessary to give any notice
other than such notice as may be required in this Article XII.
ARTICLE XIII
Section 13.01. Notices. All notices, certificates or other communications under this
Agreement shall be sufficiently given and shall be deemed given when delivered or mailed by
registered mail, postage prepaid, or delivered by overnight courier, or sent by facsimile
transmission (with electronic confirmation) to the parties hereto at the addresses immediately after
the signatures to this Agreement (or at such other address as either party hereto shall designate in
writing to the other for notices to such party) and to any assignee at its address as it appears on the
registration books maintained by Lessee.
Section 13.02. Binding Effect. This Agreement shall inure to the benefit of and shall be
binding upon Lessor and Lessee and their respective successors and assigns.
Section 13.03. Severability. In the event any provision of this Agreement shall be held
invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate
or render unenforceable any other provision hereof.
Section 13.04. Amendments, Changes and Modifications. This Agreement may only be
amended by Lessor and Lessee in writing.
Section 13.05. Execution in Counterparts. This Agreement may be simultaneously executed
in several counterparts, each of which shall be an original and all of which shall constitute but one
and the same instrument; provided, that only Counterpart No. 1 of this Agreement shall constitute
chattel paper for purposes of the applicable Uniform Commercial Code.
Section 13.06 Applicable Law; Venue. This Agreement shall be governed by and construed
in accordance with the laws of the State. The parties hereto consent to jurisdiction in the State of
California and venue in any state or Federal court located in the County of Riverside, California.
Section 13.07. Captions. The captions or headings in this Agreement are for convenience
only and in no way define, limit or describe the scope or intent of any provisions or sections of
this Agreement.
Section 13.08. Entire Agreement. The parties agree that this Agreement constitutes the final
and entire agreement between the parties superseding all conflicting terms or provisions of any
prior proposals, term sheets, solicitation documents, requests for proposals, award notices,
approval letters or any other agreements or understandings between the parties.
Section 13.09. Benefits Limited to Parties. Nothing in this Agreement, expressed or implied,
is intended to give to any person or entity other than Lessee, Lessor (and permitted assigns and
Lease Servicer, if any) any right, remedy or claim under or by reason of this Agreement.
CA Appropriation 72016 -34-
[Remainder of Page Intentionally Left Blank]
[Signature Page Follows]
CA Appropriation 72016 -35-
IN WITNESS WHEREOF, Lessor and Lessee have caused this Agreement to be executed in
their names by their duly authorized representatives as of the date first above written.
LESSOR: LESSEE:
Banc of America Leasing & Capital, LLC California
11333 McCormick Road
Hunt Valley II
M/C MD5- 032 -07 -05
Hunt Valley, MD 21031
Attention: Contract Administration
Fax No.: (443) 541 -3057
Name:
Title:
Attention:
Fax No.:
By:
Name:
Title:
(Seal)
Attest:
By:
Name:
Title:
Counterpart No. of manually executed and serially numbered counterparts.
To the extent that this Agreement constitutes chattel paper (as defined in the Uniform Commercial
Code), no security interest herein may be created through the transfer or possession of any
Counterpart other than Counterpart No. 1.
[Signature Page of Equipment Lease /Purchase Agreement]
LIST OF EXHIBITS
Exhibit A —
Equipment Schedule
Exhibit B —
Payment Schedule
Exhibit C -1
Form of Authorizing Resolution
Exhibit C -2 —
Form of Incumbency and Authorization Certificate
Exhibit D —
Form of Opinion of Counsel
Exhibit E —
Form of Acceptance Certificate
Exhibit F —
Form of Self - Insurance Certificate
Exhibit G —
[Description of Additional Lessee -Owned Streetlights]
Exhibit H
Form of Notice and Acknowledgement of Assignment
Exhibit I —
Form of Escrow and Account Control Agreement
Exhibit J —
Form of True -Up Amendment
Exhibit K
Provision of Detail of True -Up Process [and Request for True -Up
Amendment]
Exhibit L
Form of Investor Letter
Exhibit M
Form of Summary of Expected Purchase Price and Facilities under Pole
Agreement on Commencement Date
Exhibit N —
Permitted Encumbrances on Real Property
Exhibit O —
Form of Notice of Retired Streetlights
EXHIBIT A
EQUIPMENT SCHEDULE
Location of Equipment:
Equipment Description (Scope of Work):
A -1
EXHIBIT B
PAYMENT SCHEDULE
RENTAL RENTAL
PAYMENT PAYMENT INTEREST
DATE AMOUNT PORTION
Contract Rate. The Contract Rate is
PRINCIPAL OUTSTANDING
PORTION BALANCE
% per annum.
PREPAYMENT
PRICE
(including
prepayment
premium, if
applicable)
Prepayment Option Commencement Date. For purposes of Section 10.01 of the
Agreement, the Prepayment Option Commencement Date is
LESSOR:
Banc of America Leasing & Capital, LLC
:
Name:
Title:
LESSEE:
California
LIM
Name:
Title:
EXHIBIT C -1
FORM OF AUTHORIZING RESOLUTION
RESOLUTION NO.
AUTHORIZING THE EXECUTION AND DELIVERY OF (1)
EQUIPMENT LEASE /PURCHASE AGREEMENT WITH BANC
OF AMERICA LEASING & CAPITAL, LLC; (2) ESCROW AND
ACCOUNT CONTROL AGREEMENT WITH BANC OF
AMERICA LEASING & CAPITAL, LLC, AND WILMINGTON
TRUST, NATIONAL ASSOCIATION; (3) PAYING AGENT
AGREEMENT WITH BANC OF AMERICA LEASING &
CAPITAL, LLC, WESTERN RIVERSIDE COUNCIL OF
GOVERNMENTS AND WILMINGTON TRUST, NATIONAL
ASSOCIATION; (4) IMPLEMENTATION AGREEMENT WITH
WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS; AND
AUTHORIZING CERTAIN ACTIONS IN CONNECTION
THEREWITH
WHEREAS, the City of (the "City ") is a municipal corporation
duly organized and existing under and pursuant to the Constitution and laws of the State of
California; and
WHEREAS, the City desires to finance certain improvements (the "Improvements ")
consisting of the acquisition of certain street lights and the installation of certain energy savings
equipment thereto as described in that certain Purchase and Sale Agreement dated
2017 (the "Purchase Agreement ") by and between the City and Southern California Edison, a
California corporation; and
WHEREAS, the City desires to provide for financing in the approximate amount of
$ for the acquisition and installation of the Improvements; and
WHEREAS, Banc of America Leasing & Capital, LLC ( "Banc of America ") has proposed
a cost - effective lease purchase financing arrangement for the acquisition and installation of the
Improvements, as set forth under the Equipment Lease /Purchase Agreement (the "Agreement ")
between Banc of America and the City, the form of which has been presented to the City and is on
file with the City Clerk; and
WHEREAS, in connection with the execution and delivery of the Agreement, it will be
necessary for the City to enter into an Escrow and Account Control Agreement (the "Escrow
Agreement ") among the City, Banc of America and Wilmington Trust, National Association, as
escrow agent, the form of which has been presented to the City and is on file with the City Clerk;
and
WHEREAS, the City has determined that this lease financing arrangement is the most
economical means for providing the Improvements to the City; and
C -1 -1
WHEREAS, as a condition of the Agreement, the City must properly maintain, repair and
replace such streetlights (the "Services ") during the term of the Lease Agreement; and
WHEREAS, the City believes that it can achieve economies of scale for such Services if
the City authorizes Western Riverside Council of Governments ( "WRCOG ") to administer the
Services on behalf of the City and other member agencies of WRCOG; and
WHEREAS, to allow WRCOG to administer the Services, the City must enter into an
Implementation Agreement (the "Implementation Agreement ") with WRCOG, the form of which
has been presented to the City and is on file with the City Clerk; and
WHEREAS, the City desires to enter into the Paying Agent Agreement (the "Paying Agent
Agreement ") with Banc of America and Wilmington Trust, National Association, and WRCOG
pursuant to which funds deposited in accordance with the Agreement and Implementation
Agreement will be held and disbursed, the form of which has been presented to the City and is on
file with the City Clerk.
NOW, THEREFORE, it is resolved by the City Council of the City of
as follows:
SECTION 1. CEQA. Based upon its review of the entire record before the City Council,
the City Council in its role as a CEQA responsible agency hereby finds and determines that the
proposed Agreement and Escrow Agreement, as part of the Project authorized in the
Implementation Agreement between the City and the Western Riverside Council of Governments,
is categorically exempt from environmental review under CEQA pursuant to State CEQA
Guidelines §§ 15301, 15302, 15303 and 15061(b)(3).
The Class 1 exemption specifically exempts from further CEQA review the operation,
repair, maintenance, and minor repair of existing public or private structures, involving negligible
or no expansion of use beyond that existing at the time of the lead agency's determination. The
lease financing arrangement will provide Improvements that require the maintenance on existing
streetlights and does not involve an expansion of the floor area of the structures. The replacement
of the bulbs to high - efficiency bulbs is a minor alteration. It does not change the use of the street
lights, and is more beneficial in terms of reduced energy use and improved public safety. The
Class 2 exemption specifically exempts from further CEQA review the replacement or
reconstruction of existing structures and facilities where the new structure will be located on the
same site as the structure replaced and will have substantially the same purpose and capacity as
the structure replaced. The Improvements will have the same purpose as the existing streetlights
and the new LED bulbs will not exceed the capacity of the existing bulbs. The Class 3 exemption
specifically exempts from further CEQA review the construction and location of limited numbers
of new, small facilities or structures; installation of small new equipment and facilities in small
structures; and the conversion of existing small structures from one use to another where only
minor modifications are made to the exterior of the structure. The Improvements include the
installation of new LED bulbs in existing small structures and general maintenance in accordance
with the Class 3 exemption.
C -1 -2
None of the exceptions to the use of the Class 1, 2 or 3 categorical exemptions identified
in State CEQA Guidelines section 15300.2 apply. The Improvements include the retrofitting of
light poles within the City's jurisdiction, but none are located in a particularly sensitive
environment and therefore there would not be impacts on an environmental resource of hazardous
or critical concern. The Improvements will not result in a cumulative impact from successive
projects of the same type in the same place, over time, as they entail the upgrade of bulbs on all
currently owned SCE fixtures within the City's jurisdiction. There are no unusual circumstances
surrounding the Improvements that result in a reasonable possibility of a significant effect on the
environment, as there are no sensitive resources on the existing pole sites and the Improvements
do not involve structural modifications. The replacement of bulbs and maintenance of existing
structures will not damage scenic resources, including trees, historic buildings, rock outcroppings,
or similar resources. The Improvements will not take place on any hazardous waste sites or cause
a substantial adverse change in the significance of a historical resource as the existing poles are
not considered historical resources. Thus, the categorical exemptions apply, and no further
environmental review is required.
The Improvements to be provided as part of the lease financing arrangement are also
exempt from CEQA pursuant to State CEQA Guidelines Section 15061(b)(3), which exempts a
Project if "the activity is covered by the general rule that CEQA applies only to projects which
have the potential for causing a significant effect on the environment. Where it can be seen with
certainty that there is no possibility that the activity in question may have a significant effect on
the environment, the activity is not subject to CEQA." The execution of the Agreement and
Escrow Agreement regarding the Improvements project involves replacing existing light bulbs in
City's jurisdictions with LED technology bulbs. The Improvements do not involve an expansion
of use or the bulbs' capacity. Accordingly, there is no possibility that obtaining financing for the
replacement of bulbs will have a significant effect on the environment.
SECTION 2. Authorization and Approval of Agreement, Escrow Agreement,
Implementation Agreement and Paying Agent Agreement. The City Council hereby approves and
authorizes the City to enter into (a) the Agreement in a principal amount which shall not exceed
$ in the form attached hereto as Exhibit A and incorporated hereby by reference,
together with any changes therein or additions thereto which are deemed advisable by the City
Manager, (b) the Escrow Agreement in the form attached hereto as Exhibit B and incorporated
hereby by reference, together with any changes therein or additions thereto which are deemed
advisable by the City Manager (c) the Implementation Agreement in the form attached hereto as
Exhibit C and incorporated hereby by reference, together with any changes therein or additions
thereto which are deemed advisable by the City Manager and (d) the Paying Agent Agreement in
the form attached hereto as Exhibit D and incorporated hereby by reference, together with any
changes therein or additions thereto which are deemed advisable by the City Manager. The City
Manager is authorized and directed to take all steps and actions which are necessary to accomplish
execution of the Agreement, the Escrow Agreement, the Implementation Agreement and Paying
Agent Agreement pursuant to the authorization given by and the conditions specified in this
resolution. The City Manager, or his designee, is authorized to execute the Agreement, the Escrow
Agreement, the Implementation Agreement, the Paying Agent Agreement, and appendices to the
Professional Services Agreement and Equipment Purchase Agreement between WRCOG and
Siemens Industry, Inc. for and on behalf of the City.
C -1 -3
SECTION 3. Attestations. The City Clerk or other appropriate City officer is hereby
authorized and directed to attest the signature of the City Manager or of such other person or
persons as may have been designated by the City Manager, and to affix and attest the seal of the
City, as may be required or appropriate in connection with the execution and delivery of the
Agreement, the Escrow Agreement, the Implementation Agreement and the Paying Agent
Agreement .
SECTION 4. Other Actions. The City Manager and his designees are each hereby
authorized and directed, jointly and severally, to take any and all actions and to execute and deliver
any and all agreements, documents and certificates which they may deem necessary or advisable
in order to carry out, give effect to and comply with the terms of this Resolution, the Agreement,
the Escrow Agreement, the Implementation Agreement and the Paying Agent Agreement. Such
actions are hereby ratified, confirmed and approved.
SECTION 5. General Liability. Nothing contained in this Resolution, the Agreement, the
Escrow Agreement nor any other instrument shall be construed with respect to the City, as Lessee,
as incurring a pecuniary liability or charge upon the general credit of the City, as Lessee, or against
its taxing power, nor shall the breach of any agreement contained in this Resolution, the
Agreement, the Escrow Agreement or any other instrument or document executed in connection
therewith impose any pecuniary liability upon the City, as Lessee, or any charge upon its general
credit or against its taxing power, except to the extent that the Rental Payments payable under the
Agreement are limited obligations of the City, as Lessee, subject to annual appropriation by its
governing body, as provided in the Agreement
SECTION 6. Appointment of Authorized Lessee Representatives. The City Manager and
her or his designees (the "Authorized Representatives ") are each hereby designated to act as
authorized representatives of the City, as Lessee, for purposes of the Agreement and the Escrow
Agreement until such time as the governing body of the City, as Lessee, shall designate any other
or different authorized representative for purposes of the Agreement or the Escrow Agreement.
SECTION 7. Severability. If any section, paragraph, clause or provision of this
Resolution shall for any reason be held to be invalid or unenforceable, the invalidity or
unenforceability of such section, paragraph, clause or provision shall not affect any of the
remaining provisions of this Resolution.
SECTION 8. Repealer. All bylaws, orders and resolutions or parts thereof, inconsistent
herewith, are hereby repealed to the extent only of such inconsistency. This repealer shall not be
construed as reviving any bylaw, order, resolution or ordinance or part thereof.
SECTION 9. Location and Custodian of Records. The documents and materials
associated with the action that constitute the record of proceedings on which these findings are
based are located at [insert address and name].
SECTION 10. CEQA _Notice of Exemption. The City Council hereby directs staff to
prepare and file a Notice of Exemption with the Riverside County Clerk within five (5) working
days of the approval of the proposed project.
SECTION 11. Effect. This Resolution shall take effect immediately upon its passage.
C -1 -4
PASSED AND ADOPTED this day of . 2018, by the following vote:
AYES:
NOES:
ABSTENTIONS:
ABSENT:
Approved:
Attest:
Mayor
, City Clerk
C -1 -5
EXHIBIT C -2
FORM OF INCUMBENCY AND AUTHORIZATION CERTIFICATE
The undersigned, a duly elected or appointed and acting [Secretary] [City Clerk][County
Clerk] of , California ( "Lessee ") certifies as follows:
Dated:
A. The following listed persons are duly elected or appointed and acting
officials of Lessee (the "Officials ") in the capacity set forth opposite their respective names
below and the original or facsimile signatures below are true and correct as of the date
hereof;
B. The Resolution of Lessee's City Council, No. . dated ,
20 , authorized the Officials, on behalf of Lessee, to negotiate, execute and deliver the
Equipment Lease /Purchase Agreement dated as of by and between
Lessee and Banc of America Leasing & Capital, LLC ( "Lessor "), the Escrow and Account
Control Agreement dated as of I among Lessor, Lessee and Wilmington
Trust, National Association, as Escrow Agent, the Paying Agent Agreement dated as of
by and among Lessee, Western Riverside Council of Governments
( "WRCOG "), Lessor and Wilmington Trust, National Association, the Implementation
Agreement dated as of , 20 between WRCOG and Lessee and all
documents related thereto and delivered in connection therewith (collectively, the
"Agreements ").
NAME OF OFFICIAL TITLE SIGNATURE
Lo
Name:
Title:
(The signer of this Certificate cannot be listed above as authorized to execute the Agreements.)
C -2 -1
EXHIBIT D
FORM OF OPINION OF COUNSEL TO LESSEE
(to be typed on letterhead of counsel)
[Closing Date]
Banc of America Leasing & Capital, LLC
H 333 McCormick Road
Mail Code: MD5- 032 -07 -05
Hunt Valley, MD 21031
Attn: Contract Administration
Re: Equipment Lease /Purchase Agreement, dated as of ,
between [Banc of America Leasing & Capital, LLC, as Lessor, and
, California, as Lessee
Ladies and Gentlemen:
As legal counsel to California ( "Lessee "), I have examined (a) an
executed counterpart of a certain Equipment Lease /Purchase Agreement, dated as of
and Exhibits thereto by and between Banc of America Leasing & Capital, LLC (together
with its successors, assigns and transferees, and as more particularly defined in the Agreement,
"Lessor ") and Lessee (the "Agreement "), which, among other things, provides for the lease of
certain property (the "Equipment"), a certain Escrow and Account Control Agreement among
Lessor, Lessee, and Wilmington Trust, National Association, as Escrow Agent, dated
(the "Escrow Agreement"), a certain Paying Agent Agreement dated as of
by and among Lessee, Western Riverside Council of Governments ("WRCOG"), Lessor
and Wilmington Trust, National Association, as paying agent, a certain Implementation
Agreement dated as of , 20_ between WRCOG and Lessee and all documents
related thereto and delivered in connection therewith, (b) an executed counterpart of the ordinances
or resolutions of Lessee with respect to authorization of the transaction contemplated by the
Agreement, the Escrow Agreement, and documents related thereto and (c) such other opinions,
documents and matters of law as I have deemed necessary in connection with the following
opinions. The Agreement, the Escrow Agreement and the WRCOG Agreements (as defined in the
Agreement) are referred to collectively as the "Transaction Documents."
The opinions expressed herein are based on an analysis of existing statutes, regulations,
rulings and court decisions and cover certain matters not directly addressed by such authorities.
Such opinions may be affected by actions taken or omitted or events occurring after the date hereof.
We have not undertaken to determine, or to inform any person, whether any such actions or events
D -1
are taken or do occur. We express no opinion with respect to any indemnification, contribution,
lien priority or choice of law provisions contained in the foregoing documents.
In our examination, we have assumed, without independent investigation, the authenticity
of all documents submitted to us as originals, of all documents submitted to us as certified or
photostatic copies and the authenticity of the originals of such latter documents and the accuracy
of the statements and representations contained in such documents. In addition, we have assumed
the authority of and due execution by each of the parties to the documents other than the Lessee.
As used in this opinion, the phrase "to our current actual knowledge" means knowledge as
we have obtained from (i) the incumbency and signature certificate of the Lessee, (ii) the
representations and warranties contained in each closing certificate of the Lessee, and (iii)
knowledge of facts or other information currently known to lawyers in our firm who have
performed legal services for the Lessee.
Based on the foregoing, I am of the following opinions:
1. Lessee is a [city] [county] [special district] [body corporate and politic],
duly organized and existing under the laws of the State.
2. Lessee has the requisite power and authority to lease and acquire the
Equipment and to execute and deliver the Transaction Documents and to perform its
obligations under the Transaction Documents.
3. The Transaction Documents have been duly authorized, approved, executed
and delivered by and on behalf of Lessee and the Transaction Documents constitute legal,
valid and binding obligations of Lessee enforceable in accordance with their respective
terms.
4. The authorization, approval, execution and delivery of the Transaction
Documents and all other proceedings of Lessee relating to the transactions contemplated
thereby have been performed in accordance with all open meeting laws, public bidding
laws and all other applicable state or federal laws.
5. To our current actual knowledge there is no proceeding pending or
threatened in any court or before any governmental authority or arbitration board or
tribunal that, if adversely determined against the Lessee, would adversely affect the
transactions contemplated by the Transaction Documents or the security interest of Lessor
or its assigns, as the case may be, in the Equipment, the Escrow Account or other collateral
thereunder.
All capitalized terms herein shall have the same meanings as in the Transaction Documents
unless otherwise provided herein. Lessor and its successors, assigns and transferees are
entitled to rely on this opinion.
D -2
Sincerely,
D -3
EXHIBIT E
FORM OF ACCEPTANCE CERTIFICATE
Banc of America Leasing & Capital, LLC
11333 McCormick Road
Mail Code: MD5- 032 -07 -05
Hunt Valley, MD 21031
Attn: Contract Administration
Re: Equipment Lease /Purchase Agreement, dated as of
between Banc of America Leasing & Capital, LLC, as Lessor, and
, California, as Lessee
Ladies and Gentlemen:
In accordance with the above - referenced Equipment Lease /Purchase Agreement (the
"Agreement "), the undersigned Lessee hereby certifies and represents to, and agrees with Lessor
as follows:
1. All of the Equipment has been delivered, installed, is operating in a manner
consistent with the intended use and has been inspected and finally accepted for all
purposes by Lessee and title thereto has transferred to Lessee and any security interest of
Southern California Edison and Vendor therein has been released, subject to any Light Pole
License Agreement permitted under the Agreement.
2. Lessee has conducted such inspection and testing of the Equipment as it
deems necessary and appropriate in order to determine the Equipment's capability and
functionality in order to accept such Equipment and hereby acknowledges that it accepts
the Equipment for all purposes of the disbursement of funds pursuant to this Certificate
and shall not serve to affect or diminish the Lessee's rights under any warranty by the
manufacturer or any other entity with respect to the Equipment.
3. Lessee is currently maintaining the insurance coverage required by
Section 7.02 of the Agreement.
4. Lessee hereby reaffirms that the representations, warranties and covenants
contained in the Agreement are true and correct as of the date hereof.
5. No event or condition that constitutes, or with notice or lapse of time, or
both, would constitute, an Event of Default exists at the date hereof.
E -1
6. No Material Adverse Change has occurred since the date of the execution
and delivery of the Agreement.
7. No Event of Non - appropriation has occurred or been threatened.
Capitalized terms used, but not defined, in this Acceptance Certificate shall have the same
meanings as when such terms are used in the Agreement.
Date:
(Seal)
LESSEE:
By:
Name:
Title:
E -2
, California
EXHIBIT F
FORM OF SELF INSURANCE CERTIFICATE
Banc of America Leasing & Capital, LLC
11333 McCormick Road
Mail Code: MD5- 032 -07 -05
Hunt Valley, MD 21031
Attn: Contract Administration
Re: Equipment Lease /Purchase Agreement, dated as of (the
"Agreement ") between Banc of America Leasing & Capital, LLC, as
Lessor, and , California, as Lessee
In connection with the above - referenced Agreement, California (the
"Lessee "), the Lessee warrants and represents to Banc of America Leasing & Capital, LLC the
following information. The terms capitalized herein but not defined herein shall have the meanings
assigned to them in the Agreement.
1. The Lessee is self - insured for damage or destruction to the Equipment. The dollar
amount limit for property damage to the Equipment under such self - insurance program is
$ . [The Lessee maintains an umbrella insurance policy for claims in excess of
Lessee's self - insurance limits for property damage to the Equipment which policy has a dollar
limit for property damage to the Equipment under such policy of $ .]
2. The Lessee is self - insured for liability for injury or death of any person or damage or
loss of property arising out of or relating to the condition or operation of the Equipment. The
dollar limit for such liability claims under the Lessee's self - insurance program is $
[The Lessee maintains an umbrella insurance policy for claims in excess of Lessee's self - insurance
limits for liability which policy has a dollar limit for liabilities for injury and death to persons as
well as damage or loss of property arising out of or relating to the condition or operation of the
Equipment in the amount of $
[3]. The Lessee maintains a self - insurance fund. Monies in the self - insurance fund
[are /are not] subject to annual appropriation. The total amount maintained in the self - insurance
fund to cover Lessee's self - insurance liabilities is $ [Amounts paid from the
Lessee's self - insurance fund are subject to a dollar per claim of $ .]
[3]. The Lessee does not maintain a self - insurance fund. The Lessee obtains funds to pay
claims for which it has self - insured from the following sources:
Amounts payable for claims from the such sources are limited as follows:
F -1
4. Attached hereto are copies of certificates of insurance with respect to policies
maintained by Lessee.
LESSEE:
. California
By:_
Name:
Title:
F -2
EXHIBIT G
[DESCRIPTION OF ADDITIONAL LESSEE -OWNED STREETLIGHTS]
G -1
EXHIBIT H
FORM OF NOTICE AND ACKNOWLEDGEMENT OF ASSIGNMENT
DATED
Banc of America Leasing & Capital, LLC ( "Assignor ") hereby gives notice that it has
assigned and sold to ( "Assignee ") all of Assignor's right, title and
interest in, to and under the Equipment Lease /Purchase Agreement (the "Agreement ") dated as of
between Assignor and , California ( "Lessee "), together
with all exhibits, schedules, addenda and attachments related thereto, and all certifications and
other documents delivered in connection therewith, the Rental Payments and other amounts due
under the Agreement, all of Assignor's right, title and interest in the Equipment (as defined in the
Agreement), and all of Assignor's right, title and interest in, to and under the Escrow and Account
Control Agreement dated as of (the "Escrow Agreement ") by and among
Lessee, Assignor and Wilmington Trust, National Association, as Escrow Agent, together with the
Escrow Account related thereto, and all of Assignor's right, title and interest in, to and under the
the Paying Agent Agreement dated as of I by and among Lessee, Western
Riverside Council of Governments, Lessor and Wilmington Trust, National Association, as paying
agent, together with the Collection Fund and the Rental Payment Subaccount and moneys and
investments held from time to time therein (but not the Administrative Fee Subaccount, the Annual
Maintenance Subaccount or the Re- lamping Reserve Subaccount therein) (collectively, the
`Assigned Property "). Each capitalized term used but not defined herein has the meaning set forth
in the Agreement.
1. For purposes of Section 11.01 of the Agreement, Lessee hereby acknowledges the
effect of the assignment of the Assigned Property and absolutely and unconditionally agrees to
deliver to Assignor, as Lease Servicer for Assignee, all Rental Payments and other amounts
coming due under the Agreement in accordance with the terms thereof on and after the date of this
Acknowledgment. The Investor Letter is attached hereto. It is hereby acknowledged that Lessee
has never reviewed the agreement or any other instrument pursuant to which the assignment was
made (the "Assignment Agreement "), assumes that such Assignment Agreement is valid and
binding as between the Assignor and the Assignee, and relies on the representation (which is made
hereby) that such assignment has been done in compliance with all applicable law.
2. Lessee and Assignor hereby agree that: (i) Assignee shall have all the rights of Lessor
under the Agreement and all related documents, including, but not limited to, the rights to issue or
receive all notices and reports, to give all consents or agreements to modifications thereto, to
receive title to the Equipment in accordance with the terms of the Agreement, to declare a default
and to exercise all rights and remedies thereunder in connection with the occurrence of an Event
of Default or an Event of Non - appropriation in accordance with the Agreement; and (ii) except as
provided in Section 3.03 of the Agreement, the obligations of Lessee to make Rental Payments
and to perform and observe the other covenants and agreements contained in the Agreement shall
be absolute and unconditional in all events without abatement, diminution, deduction, set -off or
defense.
H -1
3. Lessee agrees that, as of the date of this Notice and Acknowledgment of Assignment
(this "Acknowledgement"), the following information about the Agreement is true, accurate and
complete:
Number of Rental Payments Remaining —
Amount of Each Rental Payment — $
Total Amount of Rents Remaining — $
Frequency of Rental Payments —
Next Rental Payment Due —
Funds Remaining in Escrow Account — $
4. The Agreement remains in full force and effect, has not been amended, no Event of
Default (or event which with the passage of time or the giving of notice or both would constitute
an Event of Default) has occurred thereunder and no Event of Non - appropriation has occurred or
is threatened with respect thereto.
5. Assignor hereby acknowledges the transfer restrictions imposed by Section 11.01 of
the Agreement and confirms that the assignment to Assignee has been made in accordance with
the provisions of that Section.
6. Any inquiries of Lessee related to any requests for disbursements from the Escrow
Account and all Rental Payments and other amounts coming due pursuant to the Agreement on
and after the date of this Acknowledgment should be remitted to Assignor, as Lease Servicer for
Assignee, at the following address (or such other address as provided to Lessee in writing from
time to time by Assignor):
Banc of America Public Capital Corp
11333 McCormick Road
Hunt Valley II
M/C MD5- 032 -07 -05
Hunt Valley, MD 21031
Attention: Contract Administration
Fax No.: (443) 541 -3057
7. Except as stated above in Section 6 hereof, any inquiries and /or notices of the
Lessee related to the Agreement should be directed to Assignee at the address listed below:
Attention:
ACKNOWLEDGED AND AGREED:
H -2
LESSEE:
By:
Name:
Title:
ASSIGNOR:
BANC OF AMERICA LEASING & CAPITAL, LLC
Name:
Title:
I.Qcj
EXHIBIT I
FORM OF ESCROW AND ACCOUNT CONTROL AGREEMENT
See Item # _ in Transcript
I -1
EXHIBIT J
TRUE -UP AMENDMENT
[Date]
Re: Equipment Lease /Purchase Agreement, dated as of (the
"Agreement") between Banc of America Leasing & Capital, LLC, as
Lessor, and , California, as Lessee
(a) In connection with the above - referenced Agreement, California
(the "Lessee "), the Lessee warrants and represents to Banc of America Leasing & Capital, LLC
(the "Lessor") that:
(i) the [final] 16 [Inventory Inspection Period] and Closing Date has
concluded under the Pole Agreement and some the property, equipment and /or streetlights
acquired under the Pole Agreement differs from the Equipment described under the
Agreement on the Commencement Date, and /or the Lessee actually acquired less
Equipment than previously contemplated and /or Lessee actually acquired additional
property, equipment and /or streetlights than previously contemplated;
(ii) Lessee has requested that Lessor execute this True -Up Amendment to [add
to] [delete some of] [modify] the Equipment under the Agreement so that it is consistent
with the property, equipment and /or streetlights acquired under the Pole Agreement
following the [final] 17 [Inventory Inspection Period]; and
(iii) Lessee has provided Lessor with such information as Lessor has requested
to substantiate the change in property, equipment and /or streetlights under the Pole
Agreement.
(b) Lessee and Lessor desire to execute this True -Up Amendment to [add to] [delete
some of] [modify] the Equipment under the Agreement, which following the [final] 18 [Inventory
Inspection Period] consists of a total of streetlights.
[(c) Lessee and Lessor hereby agree that Section 2.01(m) of the Agreement is hereby
amended and restated in its entirety as follows:
(m) [(i)] The portion of the Equipment that is and will be acquired and installed
16 Include for multi -phase PSAs.
17 Include for multi -phase PSAs.
18 Include for multi -phase PSAs.
J -1
on Lessee -Owned Streetlights are and will be located on, or on improvements within, a
right -of -way that is dedicated to public use for a period that is longer than the Scheduled
Term. Lessee is entitled to the benefit and use of such right -of -way for the Lessee -Owned
Streetlights and has good and marketable title to the Lessee -Owned Streetlights on, about
and to which a portion of the Equipment is or will be located. Subject to the Light Pole
License Agreement, there exists no mortgage, pledge, Lien, security interest, charge or
other encumbrance of any nature whatsoever on or with respect to the Lessee -Owned
Streetlights, except under this Agreement. [The number of Lessee -Owned Streetlights
subject to Lessor's Lien under this Agreement is and shall be at least equal to at
all times (unless any such Lessee -Owned Streetlights are permitted to be Retired
Streetlights pursuant to Section 5.04(c) hereof, in which case the number may
be reduced by the number of such applicable Retired Streetlights).]
[(ii) Lessee is the fee owner with free and clear title to all the Additional
Lessee -Owned Streetlights. The Additional Lessee -Owned Streetlights are and will be
located on, or on improvements within, a right -of -way that is dedicated to public use
for a period that is longer than the Scheduled Term. Lessee is entitled to the benefit
and use of such right -of -way for the Additional Lessee -Owned Streetlights and has
good and marketable title to the Additional Lessee -Owned Streetlights on, about and
to which a portion of the Equipment is or will be located. Subject to the Light Pole
License Agreement, there exists no mortgage, pledge, Lien, security interest, charge
or other encumbrance of any nature whatsoever on or with respect to the Additional
Lessee -Owned Streetlights, except under this Agreement. The number of Additional
Lessee -Owned Streetlights subject to Lessor's first priority Lien under this
Agreement is and shall be at least equal to at all times (unless any such
Additional Lessee -Owned Streetlights are permitted to be Retired Streetlights
pursuant to Section 5.04(c) hereof, in which case the number may be reduced by
the number of such applicable Retired Streetlights). The insured value of each
Additional Lessee -Owned Streetlight shall equal or exceed the insured value of each
Lessee -Owned Streetlight.
(iii) At all times, Lessee shall ensure that the number of Additional Lessee -
Owned Streetlights subject to Lessor's first priority Lien under this Agreement shall
equal at least 10% of the number of Lessee -Owned Streetlights. The sum of (A) the
aggregate number of Additional Lessee -Owned Streetlights subject to Lessor's first
priority Lien under this Agreement plus (B) the aggregate number of Lessee -Owned
Streetlights subject to Lessor's first priority Lien under this Agreement, is and shall
be at least equal to at all times (the "Required Collateral Amount') unless any
such Streetlights are permitted to be Retired Streetlights pursuant to Section 5.04(c)
hereof, in which case the number may be reduced by the number of such
applicable Retired Streetlights.]
(d) Lessee and Lessor hereby agree that Section 5.04(c) of the Agreement is hereby
amended and restated in its entirety as follows:
J -2
(c) Notwithstanding anything herein to the contrary, so long as no Event of Default (or
event which with the passage of time or the giving of notice or both would constitute an
Event of Default) has occurred thereunder and no Event of Non - appropriation has occurred
or is threatened, Lessee may retire and exclude from the Equipment up to 19
[Streetlights] in the aggregate over the course of the Lease Term without prepayment or
penalty or obligation to replace such Streetlights, provided that Lessee shall (i) re -make
and confirm all the representations, warranties and covenants set forth in this Agreement
for the benefit of Lessor and (ii) confirm in writing to Lessor, (1) the number of
[Streetlights] being retired at that time, (2) the cumulative number of Retired Streetlights
under this Agreement taking into account the Streetlights then being retired, (3) the number
of Streetlights that will remain subject to this Agreement, (4) the number of Lessee -Owned
Streetlights that will remain subject to this Agreement [and (5) the number of Additional
Lessee -Owned Streetlights that will remain subject to this Agreement] and provide
such other information or confirmations with respect to the Retired Streetlights, the
Equipment and the Collateral as Lessor may request.
(e) Lessee and Lessor hereby agree that Exhibit A of the Agreement is hereby amended
and restated in its entirety as attached to this True -Up Amendment.
[(f) Lessee and Lessor hereby agree that Exhibit G of the Agreement is hereby
amended and restated in its entirety as attached to this True -Up Amendment.]
The terms capitalized herein but not defined herein shall have the meanings assigned to
them in the Agreement.
LESSOR: LESSEE:
Banc of America Leasing & Capital, LLC California
III
Name:
Title:
i
Name:
Title:
19 In connection with a True -Up Amendment this number can be recalibrated but it cannot exceed 1% of the
number of Lessee -Owned Streetlights under the Agreement.
J -3
AMENDED EXHIBIT A TO TRUE -UP AMENDMENT
EQUIPMENT SCHEDULE
Location of Equipment:
Equipment Description (Scope of Work):
[AMENDED EXHIBIT G TO TRUE -UP AMENDMENT
DESCRIPTION OF ADDITIONAL LESSEE -OWNED STREETLIGHTS]
J -3
EXHIBIT K
PROVISION OF DETAIL OF TRUE -UP PROCESS [AND REQUEST FOR TRUE -UP AMENDMENT]
Banc of America Leasing & Capital, LLC
11333 McCormick Road
Mail Code: MD5- 032 -07 -05
Hunt Valley, MD 21031
Attn: Contract Administration
Re:
Equipment Lease /Purchase Agreement, dated as of _
"Agreement") between Banc of America Leasing
Lessor, and California, as Lessee
(the
& Capital, LLC, as
In connection with the above - referenced Agreement, California (the
"Lessee"), the Lessee warrants and represents to Banc of America Leasing & Capital, LLC the
following information. The terms capitalized herein but not defined herein shall have the meanings
assigned to them in the Agreement.
1. (i) the [Inventory Inspection Period] [relating to Phase _]20 has concluded
under the Pole Agreement and [some] [none] of the property, equipment and /or streetlights
acquired under the Pole Agreement differs from the Equipment described under the Agreement on
the Commencement Date; [and]
[(ii) Lessee hereby requests that Lessor execute a True -Up Amendment to
[add to] [delete some of] [modify] the Equipment under the Agreement so that it is
consistent with the property, equipment and /or streetlights acquired under the Pole
Agreement as a result of the [final]21 [Inventory Inspection Period]; and122
[(ii)] [(iii)] Lessee has and will provide Lessor with such information as Lessor has
requested to substantiate the [change in] [status of the] property, equipment and /or
streetlights under the Pole Agreement and the Equipment under the Agreement.
2. Lessee hereby certifies and represents to Lessor that following information is true,
correct and complete:
--1 1 x I Y I
20 Include for multi -phase PSAs.
21 Include for multi -phase PSAs.
22 To be provided following final Inventory Inspection Period for multi -phase PSAs.
K -1
23 DRAFTING NOTE: For multi -phase PSAs, add additional columns based on actual Phase Closing
Dates.
K -1
Expected as of
As of Expiration of
Variance
Commencement Date
[Inventory
(X minus Y)
Inspection Period]
[relating to Phase
23
A.
Number of
Poles to be
purchased by
Lessee from
Southern
California
Edison
B.
Number of
Poles Subject to
SmartConnect =
SmartConnect =
Light Pole
NetComm =
NetComm =
License
Agreement
%
%
C.
Percentage of
Poles Subject to
Light Pole
License
Agreement
(Line B divided
by Line A) x
100
D.
Is Line C Less
_
Yes or No
Yes or No
than 5 %?
E.
Purchase Price
$
$
of Poles @
$ per pole
x
streetlights
expected under
Pole Agreement
F.
Expected Final
$
$.
Purchase Price
G.
Expected Final
$
$
Transition
Costs /Severance
Costs
H.
Expected Total
$
$
due to SCE
23 DRAFTING NOTE: For multi -phase PSAs, add additional columns based on actual Phase Closing
Dates.
K -1
3. [Lessee hereby requests that Lessor execute a True -Up Amendment to [add
to] [delete some of] [modify] the Equipment under the Agreement so that it is consistent with the
property, equipment and /or streetlights acquired under the Pole Agreement. Please identify any
additional information that Lessor needs in order to approve execution of such a True -Up
Amendment.] [Lessee hereby represents to Lessor that a True -Up Amendment is not
necessary as all of the Equipment under the Agreement is consistent with the property,
equipment and /or streetlights acquired under the Pole Agreement, and vice versa.124
LESSEE:
California
24 For multi -phase PSAs, this paragraph #3 would not be included until final Inventory Inspection Period has
concluded.
16,431
Acquisition
Price * = (Line
F plu s Line G
I.
Retro -fit Cost
$
$
$ per light
(cost of LED
fixture + cost to
retrofit) x
streetlights
under Pole
Agreement
J.
Retrofit Costs *
$
$
K.
Expected Costs
$
$
of Issuance
L.
5%
$
$
Contingencv ( *)
M.
Total Financed
$
$
Amount
N.
Line H plus
$
$
Line J plus Line
K plus Line L
O.
Variance (Line
$
$
M minus Line
N)
3. [Lessee hereby requests that Lessor execute a True -Up Amendment to [add
to] [delete some of] [modify] the Equipment under the Agreement so that it is consistent with the
property, equipment and /or streetlights acquired under the Pole Agreement. Please identify any
additional information that Lessor needs in order to approve execution of such a True -Up
Amendment.] [Lessee hereby represents to Lessor that a True -Up Amendment is not
necessary as all of the Equipment under the Agreement is consistent with the property,
equipment and /or streetlights acquired under the Pole Agreement, and vice versa.124
LESSEE:
California
24 For multi -phase PSAs, this paragraph #3 would not be included until final Inventory Inspection Period has
concluded.
16,431
EXHIBIT L
FORM OF INVESTOR LETTER
I, , of (the
for and on behalf of the Purchaser as follows with respect t
Equipment Lease /Purchase Agreement, dated as of __
between Banc of America Leasing & Capital, LLC, as Lessor, and
as Lessee:
"Purchaser") do hereby certify
o that certain $
(the "Agreement ")
. California,
1. The Purchaser is a Qualified Institutional Buyer as defined in Rule 144A
promulgated under the Securities Act of 1933, as amended or an "accredited investor" as defined
in Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended. The
Purchaser has such knowledge and experience in financial and business matters in general, and in
transactions such as the financial arrangements contemplated by the Agreement in particular, that
it is capable of evaluating and has evaluated the merits and risks of entering into the financial
arrangements contemplated by the Agreement and the Purchaser understands the risks of its
purchase of the Agreement.
2. The Purchaser has conducted its own investigation of the financial condition of the
Lessee, the purpose for which the Agreement is being entered into and of the security for payment
of the Rental Payments due under the Agreement, and has obtained such information regarding
the Agreement and the Lessee and its operations, financial condition and financial prospects as the
Purchaser deems necessary to make an informed investment decision with respect to is purchase
of the Agreement.
3. The Purchaser is purchasing the Agreement for its own account and without a
present intention to sell any portion thereof to any other person, provided that the Purchaser retains
the right at any time to dispose of the Agreement or any interest therein as it may determine to be
in its best interests and that any subsequent resale shall be made only in accordance with the
Agreement and applicable securities laws.
4. The Purchaser acknowledges and agrees that the obligation of the Lessee to pay
Rental Payments under the Agreement shall constitute a current expense of the Lessee and shall not
in any way be construed to be a debt of the Lessee in contravention of any applicable constitutional
or statutory limitations or requirements concerning the creation of indebtedness by the Lessee, nor
shall anything contained in the Agreement constitute a pledge of the full faith and credit or taxing
power of the Lessee.
5. Each of the Lessee, WRCOG, the Lessee's and WRCOG's financial advisor and
placement agent has sought and shall seek and obtain financial, legal (including securities law),
tax, accounting and other advice (including as it relates to structure, timing, terms and similar
matters and compliance with legal requirements applicable to such parties) with respect to the
Agreement from its own financial, legal, tax and other advisors (and not from the Purchaser or its
affiliates) to the extent that the Lessee, WRCOG, the Lessee's and WRCOG's financial advisor
[or the placement agent] desires, should or needs to obtain such advice. The Purchaser expresses
no view regarding the legal sufficiency of its representations for purposes of compliance with any
legal requirements applicable to the Lessee, WRCOG, the Lessee's and WRCOG's financial
advisor or the placement agent or any other party, or the correctness of any legal interpretation
made by counsel or counsels to any such entity or any other party with respect to such matters. The
Purchaser is not responsible for any the Lessee, WRCOG, the Lessee's and WRCOG's financial
advisor or the placement agent or any other party's compliance or noncompliance with any
applicable law.
DATED this day of , 20
[PURCHASER/ASSIGNEE]
By: _
Name:
Title:
2
EXHIBIT M
SUMMARY OF EXPECTED PURCHASE PRICE AND FACILITIES UNDER POLE AGREEMENT ON
COMMENCEMENT DATE
[Commencement Date]
Banc of America Leasing & Capital, LLC
11333 McCormick Road
Mail Code: MD5- 032 -07 -05
Hunt Valley, MD 21031
Attn: Contract Administration
Re: Equipment Lease /Purchase Agreement, dated as of
between Banc of America Leasing & Capital, LLC, as Lessor, and
. California, as Lessee
Ladies and Gentlemen:
In accordance with the above - referenced Equipment Lease /Purchase Agreement (the
"Agreement "), the Pole Agreement and the Light Pole License Agreement (each as defined in the
Agreement), the undersigned Lessee hereby certifies and represents as true, correct and complete
its expectations as of the date hereof to Lessor as follows:
A.
Number of Poles to be purchased by Lessee from Southern
California Edison
B.
Number of Poles Subject to Light Pole License Agreement
SmartConnect = _
NetComm =
C.
Percentage of Poles Subject to Light Pole License
Agreement (Line B divided by Line A) x 100
%
D.
Is Line C Less than 5 %?
Yes or No
E.
Purchase Price of Poles @ $ per pole x
streetlights expected under Pole Agreement
$
F.
Expected Final Purchase Price
$
G.
Expected Final Transition Costs /Severance Costs
$
H.
Expected Total due to SCE Acquisition Price * _ (Line F
plus Line G)
$
I.
Retro -fit Cost $ per light (cost of LED fixture + cost to
retrofit) x s_treetli hts under Pole Agreement
Retrofit Costs *
$
$
J.
K.
Ex ected Costs of Issuance
$
L.
5% Contingency ( *)
Total Financed Amount
$
M.
$
M -1
N. Line H plus Line J plus Line K 21us Line L $
O. Variance (Line M minus Line N) f
LESSEE:
Name:
Title:
M -2
, California
EXHIBIT N
PERMITTED ENCUMBRANCES ON REAL PROPERTY
N -1
EXHIBIT O
FORM OF NOTICE OF RETIRED STREETLIGHTS
Banc of America Leasing & Capital, LLC
11333 McCormick Road
Mail Code: MD5- 032 -07 -05
Hunt Valley, MD 21031
Attn: Contract Administration
Re: Equipment Lease /Purchase Agreement, dated as of (as
amended, the "Agreement") between Banc of America Leasing & Capital,
LLC, as Lessor, and __. California, as Lessee
In connection with the above - referenced Agreement, California (the
"Lessee "), the Lessee notifies, warrants and represents to Banc of America Leasing & Capital,
LLC the following information. The terms capitalized herein but not defined herein shall have the
meanings assigned to them in the Agreement.
(i) Pursuant to Section 5.04(c) of the Agreement, on , 20_25 (the
"Retirement Date ") Lessee intends to retire number of Streetlights and exclude them
from Equipment and the Agreement.
(ii) No Event of Default (or event which with the passage of time or the giving
of notice or both would constitute an Event of Default) has occurred thereunder and no
Event of Non - appropriation has occurred or is threatened with respect to the Agreement.
All representations, warranties and covenants set forth in the Agreement are hereby
reaffirmed for the benefit of Lessor and remain true and correct.
(iii) Subject to the satisfaction of the requirements in Section 5.04(c) of the
Agreement, Lessee may retire and exclude from the Equipment up to 26 Streetlights
in the aggregate over the course of the Lease Term (which number is subject to adjustment
following modification by a True -Up Amendment) without prepayment or penalty or
obligation to replace such Streetlights.
(iv) The cumulative number of Retired Streetlights under the Agreement,
including the Streetlights proposed to be retired in (i) above, will be on the Retirement
25 This should be a date that is at least 30 days following the date of this Notice.
26 Before closing, we will hard code the # of streetlights that can be permanently retired which cannot exceed
1% of the number of Lessee -Owned Streetlights under this Agreement. In connection with a True -Up
Amendment this number can be recalibrated.
O -1
Date, which is less than or equal to the maximum amount of Streetlights permitted to be
required under the Agreement (and described in (iii) above).
(v) After the proposed retirement of the Streetlights on the Retirement Date, the
number of Streetlights that will remain subject to the Agreement will equal ,
consisting of Lessee -Owned Streetlights [and Additional Lessee -Owned
Streetlights].
Please let us know if Lessor requires any other information or confirmations with respect
to the Retired Streetlights, the Equipment and the Collateral.
LESSEE:
California
By:
Name:
Title:
WJ
IMPLEMENTATION AGREEMENT BETWEEN THE WESTERN
RIVERSIDE COUNCIL OF GOVERNMENTS AND ** *MEMBER AGENCY
NAME * ** TO IMPLEMENT THE MAINTENANCE AND REPAIR
PROGRAM FOR STREETLIGHTS
This Implementation Agreement ( "Agreement ") is entered into as of _ _, 2018
( "Effective Date ") by and between the WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS
( "WRCOG "), a joint powers authority formed under Government Code sections 6500 et seq., and
[ ** *MEMBER AGENCY NAME * * *] ( "Member Agency "), a public agency formed under the laws
of the State of California. WRCOG and the Member Agency are sometimes collectively referred to
in this Agreement as the "Parties" or individually as a "Party."
RECITALS
WHEREAS, various cities within Riverside County and the County of Riverside entered into
a Joint Powers Agreement on April 1, 1991, as amended from time to time, to create WRCOG (the
"JPA "); and
WHEREAS, Member Agency is a signatory to the JPA; and
WHEREAS, Article VIII of the JPA permits any WRCOG member agency, when authorized
by the Executive Committee, to execute this Agreement for the purpose of authorizing WRCOG to
implement, manage and administer area -wide and regional programs in the interest of the local public
welfare; and
WHEREAS, the JPA permits WRCOG, when authorized by an Implementation Agreement,
to make and enter into such contracts, incur such debts and obligations, assess contributions from the
members, and perform such other acts as are necessary to the accomplishment of the purposes of such
agreement; and
WHEREAS, over the course of 2016 and 2017, WRCOG negotiated a template purchase and
sale agreement, and other associated agreements, with Southern California Edison ( "SCE ") to permit
WRCOG's member agencies to acquire streetlights from SCE; and
WHEREAS, the Member Agency desires to acquire such streetlights from SCE and install,
retrofit such lights with certain energy efficiency improvements; and
WHEREAS, the Member Agency intends to enter into that Equipment Lease /Purchase
Agreement dated . 2018 (as amended, the "Lease Agreement ") with Banc of America
Leasing & Capital, LLC (together with its successors and assigns, "BALCAP ") in order to finance
the acquisition, installation and retrofitting of streetlights within its jurisdiction; and
WHEREAS, as a condition of such Lease Agreement, the Member Agency must properly
maintain, repair and replace such streetlights during the term of the Lease Agreement; and
WHEREAS, WRCOG and Member Agency believe that economies of scale can be achieved
if maintenance, repair, retrofitting and replacement services of streetlights were provided to several
99999.96764 \31060472 1
of WRCOG's member agencies under one or more agreements which would be administered by
WRCOG; and
WHEREAS, WRCOG member agencies have the common power to enter into an agreement
for the maintenance, repair, retrofitting and replacement of streetlights in their jurisdictions and
administer such agreement; and
WHEREAS, WRCOG and the Member Agency desire to enter into this Agreement in order
to authorize WRCOG to enter into one or more agreements with third party providers for the provision
of maintenance, repair, retrofitting and replacement services of streetlights on behalf of Member
Agency within the Member Agency's jurisdiction and administer such agreements ; and
WHEREAS, the Executive Committee of WRCOG and the City Council of the Member
Agency have each authorized WRCOG and the City Council, respectively, to enter into this
Agreement; and
WHEREAS, WRCOG, the Member Agency, Wilmington Trust, National Association
(together with any successor paying agent, the "Paying Agent "), and BALCAP will enter into a
Paying Agent Agreement dated . 2018 (as in order to facilitate the orderly distribution
of payments required under this Implementation Agreement and the Lease Agreement (as amended,
"Paying Agent Agreement "); and
WHEREAS, the Member Agency, Wilmington Trust, National Association, as escrow agent,
and BALCAP will enter into an Escrow and Account Control Agreement to fulfill the deposit
requirements under the Lease Agreement (as amended, "Escrow Agreement ").
NOW, THEREFORE, the Parties hereby understand and agree as follows:
AGREEMENT
1. Maintenance, Repair, and Access
1.1 WRCOG shall enter into an agreement (the "Professional Services Agreement ") for
the provision of retrofitting services and regular maintenance and repair services for those streetlights
listed in Exhibit A (the "Services "), attached hereto and incorporated herein located in Member
Agency's jurisdiction. Maintenance and repair activities shall consist of repair of electrical wiring
and light fixtures, replacement of burned -out lamps, repair and replacement of damaged equipment
caused by auto accidents and vandalism, and marking the location of underground electrical conduits
for the Dig Alert: Underground Service Alert program, as needed. So long as the Lease Agreement
is in effect and not later than three months prior to the termination of any such Professional Services
Agreement, WRCOG shall either: (a) renew the Professional Services Agreement; or (b) enter into a
Professional Services Agreement with a new vendor.
1.2 In addition, WRCOG shall enter into an agreement (the "Equipment Purchase
Agreement ") for the purchase of all equipment associated with the Services.
99999.96764 \31060472.1 2
1.3 In addition to the Services, WRCOG shall enter into a future agreement (the "Re-
lamping Services Agreement ") to provide capital replacement services for such streetlighting,
otherwise known as "Re- lamping Services." Re- lamping Services may be provided under the
Professional Services Agreement, through amendment to the Professional Services Agreement, or
through a separate agreement.
1.4 WRCOG shall cause the Services to be performed to conduct activities on an as
required basis. Non - emergency and emergency maintenance may be performed at Member Agency's
request, but will be subject to the provisions of Section 4 of this Agreement.
1.5 WRCOG shall provide streetlight system reviews and reports including a summary of
system activities on an annual basis.
1.6 In order for the contractors to perform the Services and Re- lamping Services, Member
Agency hereby grants to WRCOG a no -cost license and right to access the streetlights and adjacent
Member Agency properties and rights -of -way for the sole purpose of performing the services under
this Agreement. This license and right -of- access shall run concurrently with the Agreement.
Notwithstanding the foregoing, WRCOG will require its contractors performing the Services and Re-
lamping Services to follow each Member Agency's encroachment and right -of -way access
procedures. In complying with these procedures, Member Agency shall not charge the contractors a
fee and will not unreasonably delay or deny the contractors access to the streetlights and adjacent
Member Agency properties and rights -of -way.
1.7 Member Agency understands and agrees that WRCOG intends to retain one or more
contractor (or contractors) for the performance of the Services and the Re- lamping Services.
WRCOG shall take all necessary steps to ensure Member Agency holds the right to enforce the terms
of WRCOG's agreement with said contractor (or contractors) as it pertains to the Services and the
Re- lamping Services rendered in Member Agency's jurisdiction. In retaining said contractor(s),
WRCOG shall comply with all applicable laws, including any applicable public bidding requirements.
1.8 Insurance.
WRCOG shall require that its contractors or subcontractors retained for the Services in
furtherance of WRCOG's performance of its obligations under this Agreement ( "Contractor(s) ") shall
procure and maintain, at their sole cost and expense during the entire term of any agreement including
any extension thereof, the following minimum policies of insurance:
(a) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version
of the following: (1) General Liability: Insurance Services Office Commercial General Liability
coverage (occurrence form CG 0001 or exact equivalent); (2) Automobile Liability: Insurance
Services Office Business Auto Coverage (form CA 0001, code 1 (any auto) or exact equivalent); and
(3) Workers' Compensation and Employer's Liability: Workers' Compensation insurance as required
by the State of California and Employer's Liability Insurance.
(b) Minimum Limits of Insurance. Contractors shall maintain limits no less than: (1)
General Liability: $5,000,000 per occurrence for bodily injury, personal injury and property damage.
If Commercial General Liability Insurance or other form with general aggregate limit is used, either
the general aggregate limit shall apply separately to any such agreement between WRCOG and the
99999.96764 \31060472.1 3
Contractor /location or the general aggregate limit shall be twice the required occurrence limit; (2)
Automobile Liability: $5,000,000 per accident for bodily injury and property damage; and (3)
Workers' Compensation and Employer's Liability: Workers' Compensation limits as required by the
Labor Code of the State of California. Employer's Liability limits of $5,000,000 per accident for
bodily injury or disease.
(c) Professional Liability. Contractors shall procure and maintain, and require its sub -
consultants to procure and maintain, for a period of five (5) years following completion of the
Services, errors and omissions liability insurance appropriate to their profession. Such insurance shall
be in an amount not less than $2,000,000 per claim. This insurance shall be endorsed to include
contractual liability applicable to any agreement between WRCOG and the Contractor and shall be
written on a policy form coverage specifically designed to protect against acts, errors or omissions of
the Contractors. "Covered Professional Services" as designated in the policy must specifically
include work performed under such agreement. The policy must "pay on behalf of the insured and
must include a provision establishing the insurer's duty to defend.
(d) Insurance Endorsements. The insurance policies shall contain the following
provisions, or Contractors shall provide endorsements on forms supplied or approved by WRCOG to
add the following provisions to the insurance policies:
General Liability.
(i) Commercial General Liability Insurance must include coverage for (1)
Bodily Injury and Property Damage; (2) Personal Injury /Advertising Injury; (3)
Premises /Operations Liability; (4) Products /Completed Operations Liability; (5)
Aggregate Limits that Apply per Project; (6) Explosion, Collapse and Underground
(UCX) exclusion deleted; (7) Contractual Liability with respect to this such
agreement; (8) Broad Form Property Damage; and (9) Independent Consultants
Coverage.
(ii) The policy shall contain no endorsements or provisions limiting
coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by
one insured against another; or (3) contain any other exclusion contrary to the
Agreement between WRCOG and the Contractor.
(iii) The policy shall give WRCOG, its directors, officials, officers,
employees, and agents insured status using ISO endorsement forms 20 10 10 01 and
20 37 10 01, or endorsements providing the exact same coverage.
(iv) The additional insured coverage under the policy shall be "primary and
non - contributory" and will not seek contribution from WRCOG's or any Member
Agency's insurance or self - insurance and shall be at least as broad as CG 20 0104 13,
or endorsements providing the exact same coverage.
(2) Automobile Liability.
(i) The automobile liability policy shall be endorsed to state that: (1)
WRCOG, its Member Agency, and WRCOG's and its Member Agency' directors,
99999.96764 \31060472.1 4
officials, officers, employees, agents and volunteers shall be covered as additional
insureds with respect to the ownership, operation, maintenance, use, loading or
unloading of any auto owned, leased, hired or borrowed by the Contractors or for
which the Contractors are responsible; and (2) the insurance coverage shall be primary
insurance as respects WRCOG, its Member Agency, and WRCOG's and its Member
Agency' directors, officials, officers, employees, agents and volunteers, or if excess,
shall stand in an unbroken chain of coverage excess of the Contractor's scheduled
underlying coverage. Any insurance or self - insurance maintained by WRCOG, its
Member Agency, and WRCOG's and its Member Agency' directors, officials,
officers, employees, agents and volunteers shall be excess of the Contractors's
insurance and shall not be called upon to contribute with it in any way.
(3) Workers' Compensation and Employers Liability Coverage.
(i) Each Contractor certifies that he /she is aware of the provisions of
Section 3700 of the California Labor Code which requires every employer to be
insured against liability for workers' compensation or to undertake self - insurance in
accordance with the provisions of that code, and he /she will comply with such
provisions before commencing work under the Agreement between WRCOG and the
Contractor.
(ii) The insurer shall agree to waive all rights of subrogation against
WRCOG, its Member Agency, and WRCOG's and its Member Agency' directors,
officials, officers, employees, agents and volunteers for losses paid under the terms of
the insurance policy which arise from work performed by the Contractor.
(4) All Coverages.
(i) Defense costs shall be payable in addition to the limits set forth
hereunder.
(ii) Requirements of specific coverage or limits contained in this section
are not intended as a limitation on coverage, limits, or other requirement, or a waiver
of any coverage normally provided by any insurance.
(iii) The limits of insurance required in any agreement may be satisfied by
a combination of primary and umbrella or excess insurance. Any umbrella or excess
insurance shall contain or be endorsed to contain a provision that such coverage shall
also apply on a primary and non - contributory basis for the benefit of WRCOG and
each Member Agency (if agreed to in a written contract or agreement) before
WRCOG's or any Member Agency's own insurance or self - insurance shall be called
upon to protect it as a named insured. The umbrella /excess policy shall be provided
on a "following form" basis with coverage at least as broad as provided on the
underlying policy(ies).
(iv) Contractors shall provide WRCOG at least thirty (30) days prior
written notice of cancellation of any policy required by the agreement, except that the
Contractor shall provide at least ten (10) days prior written notice of cancellation of
99999.96764 \31060472 1
any such policy due to non - payment of premium. If any of the required coverage is
cancelled or expires during the term of the agreement, the Contractor shall deliver
renewal certificate(s) including the General Liability Additional Insured Endorsement
to WRCOG at least ten (10) days prior to the effective date of cancellation or
expiration.
(v) The retroactive date (if any) of each policy is to be no later than the
effective date of the agreement with the Contractor. Contractor shall maintain such
coverage continuously for a period of at least three years after the completion of the
work under the agreement. Contractor shall purchase a one (1) year extended reporting
period A) if the retroactive date is advanced past the effective date of the agreement;
B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another
claims -made policy with a retroactive date subsequent to the effective date of the
agreement.
(vi) The foregoing requirements as to the types and limits of insurance
coverage to be maintained by Contractor, and any approval of said insurance by
WRCOG, is not intended to and shall not in any manner limit or qualify the liabilities
and obligations otherwise assumed by the Contractor pursuant to the agreement with
the contractor, including but not limited to, the provisions concerning indemnification.
(vii) If at any time during the life of the agreement with the Contractor, any
policy of insurance required under such agreement does not comply with these
specifications or is canceled and not replaced, WRCOG and the applicable Member
Agency(ies) have the right but not the duty to obtain the insurance they deems
necessary and any premium paid by WRCOG and the applicable Member Agency(ies)
will be promptly reimbursed by Contractor or WRCOG (and the applicable Member
Agency(ies)) will withhold amounts sufficient to pay premium from Contractor
payments. In the alternative, WRCOG may cancel the agreement with the Contractor.
WRCOG may require the Contractor to provide complete copies of all insurance
policies in effect for the duration ofthe Project.
(viii) Neither WRCOG, its Member Agencies, nor WRCOG's or its Member
Agencies' directors, officials, officers, employees or agents shall be personally
responsible for any liability arising under or by virtue of the agreement with the
Contractor.
(e) Separation of Insureds; No Special Limitations. All insurance required by this Section
shall contain standard separation of insureds provisions. In addition, such insurance shall not contain
any special limitations on the scope of protection afforded to WRCOG, its Member Agency, and
WRCOG's and its Member Agency directors, officials, officers, employees, agents and volunteers.
(f) Deductibles and Self-insurance Retentions. Any deductibles or self - insured retentions
must be declared to and approved by WRCOG. Contractor shall guarantee that, at the option of
WRCOG, either: (1) the insurer shall reduce or eliminate such deductibles or self - insured retentions
as respects WRCOG, its Member Agencies, and WRCOG's and its Member Agencies' directors,
officials, officers, employees, agents and volunteers; or (2) the Contractor shall procure a bond
99999.96764 \31060472.1 6
guaranteeing payment of losses and related investigation costs, claims and administrative and defense
expenses.
(g) Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M.
Best's rating no less than ANII, licensed to do business in California, and satisfactory to WRCOG
and the applicable Member Agency.
(h) Verification of Coverage. Contractor shall furnish WRCOG and the applicable
Member Agency with original certificates of insurance and endorsements effecting coverage required
by the agreement with Contractor on forms satisfactory to WRCOG. The certificates and
endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind
coverage on its behalf, and shall be on forms provided by WRCOG if requested. All certificates and
endorsements must be received and approved by WRCOG before work commences. WRCOG
reserves the right to require complete, certified copies of all required insurance policies, at any time.
(i) Subconsultant Insurance Requirements. Contractor shall not allow any subcontractors
or subconsultants to commence work on any subcontract until they have provided evidence
satisfactory to WRCOG that they have secured all insurance required under this section. Policies of
commercial general liability insurance provided by such subcontractors or subconsultants shall be
endorsed to name WRCOG, its Member Agencies, and WRCOG's and its Member Agencies'
directors, officials, officers, employees, agents and volunteers as an additional insured using ISO form
CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Contractor,
WRCOG may approve different scopes or minimum limits of insurance for particular subcontractors
or subconsultants.
1.9 Indemnification.
WRCOG shall cause Contractors responsible for the performance of the Services to defend,
indemnify and hold the WRCOG, its Member Agency, and WRCOG's and its Member Agency'
officials, officers, consultants, employees, volunteers and agents free and harmless from any and all
claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity,
to property or persons, including wrongful death, in any manner arising out of or incident to any
alleged acts, omissions or willful misconduct of Contractor, its officials, officers, employees, agents,
consultants and contractors arising out of or in connection with the performance of the Services, the
Project or the Agreement between WRCOG and the Contractor, including without limitation the
payment of all consequential damages and attorneys' fees and other related costs and expenses.
Contractor shall defend, at Contractor's own cost, expense and risk, any and all such aforesaid suits,
actions or other legal proceedings of every kind that may be brought or instituted against WRCOG,
its Member Agency, and WRCOG's and its Member Agency' directors, officials, officers,
consultants, employees, agents or volunteers. Contractors shall pay and satisfy any judgment, award
or decree that may be rendered against WRCOG, its Member Agency, and WRCOG's and its Member
Agency' directors, officials, officers, consultants, employees, agents or volunteers, in any such suit,
action or other legal proceeding. Contractors shall reimburse WRCOG, its Member Agency, and
WRCOG's and its Member Agency' directors, officials, officers, consultants, employees, agents
and /or volunteers, for any and all legal expenses and costs, including reasonable attorneys fees,
incurred by each of them in connection therewith or in enforcing the indemnity herein provided.
Contractors's obligation to indemnify shall not be restricted to insurance proceeds, if any, received
99999.96764 \31060472.1 7
by WRCOG, its Member Agency, and WRCOG's and its Member Agency' directors, officials,
officers, consultants, employees, agents or volunteers. WRCOG shall ensure that the indemnification
survives the expiration or termination of any agreement with the Contractors. Notwithstanding the
foregoing, WRCOG may include a provision in any agreement with the Contractors noting that, to
the extent the Services are subject to Civil Code Section 2782.8, the indemnity shall be limited, to the
extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the
negligence, recklessness, or willful misconduct of the Contractors.
1.10 Surety Bonds.
For the Services, WRCOG shall secure from its Contractor(s), a payment and performance
bond ( "Surety Bond ") executed by a surety company authorized to do business in the State of
California, having a financial strength rating by A.M. Best Company of "A -" or better, and otherwise
satisfactory to the applicable Member Agency as a co obligee in a sum equal to the entire amount to
become payable under the agreement with its Contractor(s) for the applicable Member Agency. Each
bond shall be conditioned on the completion of the Services for the applicable Member Agency and
upon payment of all claims of subcontractors and suppliers. WRCOG shall cause the Contractor to
require the surety company to add WRCOG and BALCAP as a co obligee on each Surety Bond, and
shall deliver a certified copy of each Surety Bond to WRCOG and BALCAP promptly upon receipt
thereof by the Contractor. WRCOG shall promptly thereafter share a copy with the applicable
Member Agency. Any proceeds from a Surety Bond shall be applied in accordance with such Surety
Bond to the payment and performance of the Contractor(s)'s obligations in accordance with the
related agreement(s) and, if for whatever reason such proceeds are not so applied, then first to amounts
due BALCAP under Section 4.05 and 7.04 of the Lease Agreement, and any remaining amounts shall
be payable to the applicable Member Agency.
2. Member Amency Paynients
2.1 The Member Agency shall make all payments in the amounts and at the times as
required in the Paying Agent Agreement. Payments shall be made by the Member Agency to the
fund established under the Paying Agent Agreement entitled "[Member Name] /Equipment
Lease /Purchase Agreement, Account No. " (the "Collection Fund ") by wire transfer as follows:
[ ** *INSERT INFORMATION * * *]
2.2 The Member Agency shall pay all Rental Payments due under the Lease Agreement
to the Paying Agent (for deposit into Collection Fund and further deposit into the Rental Payment
Subaccount) at the times and in the amounts required in the Paying Agent Agreement, including
Annex I attached thereto (and in any event no later than required under the Lease Agreement).
2.3 The Member Agency shall pay all fees, costs or expenses due and owing to the Paying
Agent under the Paying Agent Agreement including in accordance with the column titled "Paying
Agent Fee Subaccount" on Annex I attached thereto, together with any past due amounts due to the
Paying Agent thereunder, to the Paying Agent for deposit into the Collection Fund and for further
distribution as provided in the Paying Agent Agreement.
2.4 Member Agency shall make payments in an amount sufficient to pay the amount of
the administrative fees due and payable to WRCOG under this Agreement at the times and in the
99999.96764 \31060472.1
amounts as required by the Paying Agent Agreement and in accordance with the column titled
"Administrative Fee Subaccount" on Annex I attached thereto, together with any past due
administrative fee amounts owing to WRCOG, to the Paying Agent for deposit into the Collection
Fund and for further distribution as provided in the Paying Agent Agreement.
2.5 Member Agency shall make payments owing with respect to Services provided by
WRCOG under Section 1.1 hereof, at the times and in the amounts as required by the Paying Agent
Agreement and accordance with the column titled "Annual Maintenance Subaccount" on Annex I
attached to the Paying Agent Agreement, plus any amounts due and unpaid with respect to Services
performed, to the Paying Agent for deposit into the Collection Fund and for further distribution as
provided in the Paying Agent Agreement.
2.6 The Member Agency shall make payments for Re- lamping Services to the Paying
Agent at the times and in the amounts as required by the Paying Agent Agreement and accordance
with the column titled "Re- lamping Reserve Subaccount" on Annex I attached to the Paying Agent
Agreement, plus any amounts due and unpaid with respect to Re- lamping Services performed, to the
Paying Agent for deposit into the Collection Fund and for further distribution as provided in the
Paying Agent Agreement. In the event of a deficiency in the Re- lamping Reserve Subaccount to
make payment on any of amounts due for fees and costs associated with the Re- lamping Services for
the Member Agency, the Member Agency shall deposit with the Paying Agent for deposit into the
Collection Fund and for further distribution as provided in the Paying Agent Agreement an amount
equal to the deficiency in the Re- lamping Reserve Subaccount.
2.7 The Member Agency hereby grants WRCOG the authority to provide the Paying
Agent with instructions on requisitions from the Administrative Fee Subaccount, the Annual
Maintenance Subaccount and the Re- lamping Reserve Subaccount. WRCOG shall maintain records
of payment relating to expenditures from such funds and subaccounts and make such records available
to the Member Agency upon request.
2.8 The Member Agency and WRCOG acknowledges that if insufficient funds are
appropriated to make payments pursuant to the Lease Agreement or any payments required pursuant
to this Agreement, the Paying Agent shall distribute funds from the Collection Fund as follows:
First, deposit moneys into the Rental Payment Subaccount to exclusion of all the other
subaccounts until there exists in the Rental Payment Subaccount funds sufficient to pay all
Rental Payments then past due and owingplus an amount sufficient to pay all Rental Payments
then due and owing plus an amount sufficient pay the sum of the Rental Payment Interest
Portion plus the Rental Payment Principal Portion coming due on the next succeeding
Payment Date as reflected on Annex I of the Paying Agent Agreement, plus any past due
amounts and interest thereon, fees, costs, expenses and any other amounts due to Lessor under
the Lease Agreement or any related agreement;
Second, after all amounts required to be deposited into the Rental Payment Subaccount
have been deposited in full, deposit moneys into the Paying Agent Fee Subaccount to the
extent available;
99999.96764 \31060472.1 9
Third, after all amounts required to be deposited into the Rental Payment Subaccount
and the Paying Agent Fee Subaccount have been deposited in full, deposit moneys into the
Administrative Fee Subaccount to the extent funds are available;
Fourth, after all amounts required to be deposited into the Rental Payment Subaccount,
the Paying Agent Fee Subaccount and the Administrative Fee Subaccount have been deposited
in full, deposit moneys to the Annual Maintenance Subaccount to the extent available;
Fifth, after all amounts required to be deposited into the Rental Payment Subaccount,
the Paying Agent Fee Subaccount, the Administrative Fee Subaccount and the Annual
Maintenance Subaccount have been deposited in full, deposit amounts in the Re- lamping
Reserve Subaccount to the extent available.
Each Subaccount shall be as described in the Paying Agent Agreement.
2.9 Notwithstanding anything to the contrary herein, so long as Member Agency transmits
the amounts due hereunder to the Paying Agent by the respective due dates, Member Agency's
obligation with respect to such due amounts shall be satisfied. Member Agency shall not be liable in
any way for failure or delay by the Paying Agent to transfer such amounts to the proper recipients.
3. Initial Cut -Over Process and installation of LED Lights
Upon transfer of the streetlights to the Member Agency, pursuant to the Pole Agreement,
WRCOG shall coordinate and manage the cut -over process involving the removal of SCE tags and
replacement with new tags for tracking purposes. WRCOG shall also coordinate and manage the
retrofitting of the streetlights identified in Section 1 of this Agreement with Member Agency -
approved LED luminaires. The costs associated with this process shall be paid by Member Agency
as a Transition Cost or Severance Cost (each as defined in the Pole Agreement, as defined in the
Lease Agreement) through disbursements (approved by BALCAP) from the escrow account
established in accordance with the Escrow Agreement.
4. Emergency Maintenance
WRCOG shall perform, only at the express request of the Member Agency, emergency
maintenance activities for the streetlights identified in Section 1 of this Agreement. Emergency
maintenance performed under the Services Agreement pursuant to this Section shall be charged to
Member Agency directly on a reasonable time and materials basis. When emergency maintenance
services are provided hereunder, WRCOG shall submit to Member Agency a monthly invoice by the
15th of the month immediately following the month in which the services were performed. Member
Agency shall then pay said invoice in full within thirty (30) days following its receipt of the invoice.
5. Term, Termination, and Default
5.1 This Agreement shall commence on the Effective Date set forth above and continue
in perpetuity unless and until otherwise modified or terminated by any Party under the terms of this
Agreement.
99999.96764 \31060472.1 10
5.2 Upon an event of non- appropriation pursuant to Section 5.3 hereof or written notice
of not less than one fiscal year, either Party may terminate this Agreement without cause. Termination
shall not relieve the Party of its proportionate share of any debts or other liabilities incurred under
this Agreement prior to the effective date of the Party's notice of termination. Any termination of
this Agreement shall be subject to Section 9.02 of the Lease Agreement.
5.3 If any payment due from Member Agency is not received by WRCOG when due, the
Member Agency shall pay an administrative late charge of five percent (5 %) of the amount paid or
the maximum amount permitted by law, whichever is less. Member Agency's obligations to provide
payments under this Agreement is subject to Member Agency's annual budget process and the making
of necessary budget appropriations in the fiscal year in which Member Agency would pay the
obligations. In the event the governing body of the Member Agency does not make a budgetary
appropriation for the payments under this Agreement for an upcoming fiscal year, Member Agency
shall notify WRCOG within 5 days of such decision to not appropriate, and this Agreement shall be
terminated as of the commencement on such upcoming fiscal year.
5.4 So long as this Agreement is not terminated pursuant to Section 5.3 hereof, if any
payment due from Member Agency under this Agreement is not received by WRCOG within 10 days
of the due date, the amount shall bear interest at 5.00% annually. The Parties agree that this late
charge represents a fair and reasonable estimate of the administrative costs that WRCOG will incur
by reason of a late payment by Member Agency. Acceptance of any late payment charge shall not
constitute a waiver from exercising any of the other rights and remedies available to WRCOG under
this Agreement, at law or in equity, including, but not limited to, any interest charges imposed herein.
Furthermore, if Member Agency has not made any payment due under this Agreement within thirty
(30) days following the due date, WRCOG may terminate this Agreement for cause. Termination of
this Agreement by WRCOG for cause shall not relieve Member Agency of its proportionate share of
any debts or other liabilities incurred under this Agreement prior to the effective date of the
WRCOG's notice of termination.
6. Environmental Review
WRCOG shall be the lead agency under the California Environmental Quality Act for any
environmental review that may be required under this Agreement.
7. Cooperative Effort
Member Agency shall cooperate with WRCOG by providing information and other assistance
in order for WRCOG to meet its obligations hereunder.
8. Miscellaneous Provisions
8.1 Notice. Any and all communications and /or notices in connection with this Agreement
shall be either hand - delivered or sent by United States first class mail, postage prepaid, and addressed
as follows:
99999 96764 \31060472 1 11
WRCOG:
Western Riverside Council of Governments
4080 Lemon Street, 3rd Floor. MS 1032
Riverside, CA 92501 -3609
Att: Executive Director
MEMBER AGENCY:
[ ** *INSERT ADDRESS * * *]
8.2 Entire Agreement. This Agreement, together with the JPA and WRCOG By -laws,
constitutes the entire agreement among the Parties. This Agreement supersedes any and all other
agreements, either oral or in writing, among the Parties with respect to the subject matter hereof and
contains all of the covenants and agreements among them with respect to said matters, and each Party
acknowledges that no representation, inducement, promise of agreement, oral or otherwise, has been
made by the other Party or anyone acting on behalf of the other Party that is not embodied herein.
8.3 Successors and Assigns. This Agreement and each of its covenants and conditions
shall be binding on and shall inure to the benefit of the Parties and their respective successors and
assigns. A Party may only assign or transfer its rights and obligations under this Agreement with
prior written approval of the other Party, which approval shall not be unreasonably withheld.
8.4 Attorney's Fees. If any action at law or equity, including any action for declaratory
relief is brought to enforce or interpret the provisions of this Agreement, each Party to the litigation
shall bear its own attorney's fees and costs.
8.5 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of California, as applicable. Venue shall be in Riverside County.
8.6 No 'Third Nirty Beneficiaries. This Agreement shall not create any right or interest in
the public, or any member thereof, as a third party beneficiary hereof, nor shall it authorize anyone
not a Party to this Agreement to maintain a suit for personal injuries or property damages under the
provisions of this Agreement. The duties, obligations, and responsibilities of the Parties to this
Agreement with respect to third party beneficiaries shall remain as imposed under existing state and
federal law.
8.7 Severabill. In the event one or more of the provisions contained in this Agreement
is held invalid, illegal or unenforceable by any court of competent jurisdiction, such portion shall be
deemed severed from this Agreement and the remaining parts of this Agreement shall remain in full
force and effect as though such invalid, illegal, or unenforceable portion had never been a part of this
Agreement.
8.8 Headings. The paragraph headings used in this Agreement are for the convenience of
the Parties and are not intended to be used as an aid to interpretation.
8.9 Amendment. This Agreement may be modified or amended by the Parties at any time.
Such modifications or amendments must be mutually agreed upon and executed in writing by both
99999 96764 \31060472.1 12
Parties. Verbal modifications or amendments to this Agreement shall be of no effect. Any
amendment of this Agreement shall be subject to Section 9.02 of the Lease Agreement.
IN WITNESS WHEREOF, THE PARTIES HERETO have executed this Agreement to be in
effect as of the date last signed below.
WRCOG Member Agency
Western Riverside Council of Governments [ ** *INSERT ENTITY NAME * * *]
Executive Director
Date:
APPROVED AS TO FORM:
LI-A
General Counsel
99999.96764 \31060472.1 13
By:
Date:
[ ** *INSERT TITLE * * *]
ATTEST:
[ ** *INSERT TITLE * * *]
APPROVED AS TO FORM:
I:
[ ** *INSERT TITLE * * *]
PAYING AGENT AGREEMENT
This PAYING AGENT AGREEMENT, dated as of , 2018 (herein, as amended,
modified or supplemented from time to time, this "Agreement"), among [LESSEE], a [city]
[county] [special district] [body corporate and politic] existing under the laws of the State of
California (the "Lessee"), BANC OF AMERICA LEASING & CAPITAL, LLC, a Delaware limited
liability company (together with its permitted successors and assigns, the "Lessor "), the WESTERN
RIVERSIDE COUNCIL OF GOVERNMENTS, a joint powers authority formed under Government Code
sections 6500 et seq. ( "WRCOG ") and WILMINGTON TRUST, NATIONAL ASSOCIATION, a
(the "Paying Agent").
RECITALS
WHEREAS, the Lessee and the Lessor are parties to that certain Equipment Lease /Purchase
Agreement, dated as of , 2018 (as amended, modified, supplemented and renewed from
time to time, together with all exhibits, schedules, annexes and other attachments thereto, the
"Lease ") pursuant to which the Lessor will finance acquisition, installation [and retrofitting] of
certain Equipment to be leased by Lessee, subject to the terms and conditions thereof and make
Rental Payments to the Lessor subject to the terms of the Lease. Terms defined in the Lease or
the Implementation Agreement, as applicable, are used in this Agreement as therein defined, unless
otherwise defined herein.
WHEREAS, the Lessee and the Lessor are parties to that certain Escrow and Account Control
Agreement with Wilmington Trust, National Association, as Escrow Agent, dated as of
, 2018 (as amended, modified, supplemented and renewed from time to time, together
with all exhibits, schedules, annexes and other attachments thereto, the "Escrow Agreement ")
pursuant to which the proceeds of the Lease will be deposited in the Escrow Fund.
WHEREAS, the Lessee is a party to that certain Implementation Agreement dated as of
, 2018 (as amended, modified, supplemented and renewed from time to time, together
with all exhibits, schedules, annexes and other attachments thereto, the "Implementation
Agreement" together with the Lease, the Escrow Agreement and this Agreement, referred to herein
collectively as the "Related Agreements ") with WRCOG pursuant to which WRCOG will provide
certain services to Lessee with respect to the retrofitting and regular maintenance, and repair
services of the Equipment.
WHEREAS, in order to facilitate the orderly distribution of payments under the Lease and
the Implementation Agreement, the Lessee, the Lessor and WRCOG have agreed that the Lessee
will make such payments to the Paying Agent to be distributed as provided herein.
WHEREAS, the Lessee, the Lessor and WRCOG have agreed to appoint the Paying Agent
to perform the duties and obligations specified herein, and the Paying Agent agrees to accept such
appointment, all on the terms and conditions hereinafter set forth; and
Now, THEREFORE, for good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties agree as follows:
2018 -099 Paying Agent Agreement
2251726
ARTICLE I
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 1.1. Appointment of Paying Agent. The parties hereto hereby appoint Paying
Agent to serve as Paying Agent hereunder. The Paying Agent hereby accepts such appointment
and, upon receipt of any funds or Payments (defined below) from the Lessee in accordance with
this Article I, agrees to hold and disburse the Payments in accordance with this Agreement.
Section 1.2. Establishment of Collection Fund. The Paying Agent shall maintain, at the
corporate trust office of the Paying Agent, a separate segregated account entitled
"[LESSEE] /Equipment Lease /Purchase Agreement, Account No. " (the "Collection
Fund"), to be held by the Paying Agent for the benefit of the Lessor and the Lessee. The Paying
Agent shall maintain and establish the following separately segregated subaccounts within the
Collection Fund:
(a) the Rental Payment Subaccount;
(b) the Paying Agent Fee Subaccount;
(c) the Administrative Fee Subaccount;
(d) the Annual Maintenance Subaccount; and
(e) the Re- lamping Reserve Subaccount.
The Paying Agent will deposit all Rental Payments, fees, costs or expenses due and owing to the
Paying Agent under the Paying Agent Agreement, administrative fees due and payable to WRCOG
under the Implementation Agreement, payments owing with respect to Services provided by
WRCOG under the Implementation Agreement, re- lamping reserve amounts, administrative fees
and any other amounts received by it in connection with the Lease, the Implementation Agreement
and this Agreement, together with any past due amounts of any of the foregoing (collectively, the
"Payments") into the Collection Fund for distribution only in accordance with Sections 1.3 and
1.8 hereof. All such Payments shall be promptly delivered by the Lessee to the Paying Agent for
deposit hereunder in the Collection Fund. Paying Agent shall transfer all such Payments to the
applicable subaccount within two business days after such deposit. Lessee shall be the owner of
the Collection Fund and all subaccounts therein at all times, subject to the first priority perfected
lien and security interest in the Collection Fund and the Rental Payment Subaccount therein in
favor of the Lessor; provided that Lessor shall not have a security interest in the Administrative
Fee Subaccount, the Annual Maintenance Subaccount or the Re- Tamping Reserve Subaccount;
provided further that the parties hereto agree that no amounts shall be disbursed from the
Collection Fund to any subaccount other than the Rental Payment Subaccount if at any time (x)
Lessor exercises control over the Rental Payment Subaccount pursuant to Section 1.8 hereof, (y)
Paying Agent receives notice that there is a deficiency in amounts required to be deposited to the
Rental Payment Subaccount and /or (z) Paying Agent receives notice that an Event of Default or
Event of Non - appropriation has occurred. Neither Lessee nor Paying Agent shall create, incur,
-2-
assume or permit to exist any assignment, lien, encumbrance or other security interest on the
Collection Fund or the Rental Payment Subaccount except for the first priority perfected lien and
security interest in the Collection Fund and the Rental Payment Subaccount therein in favor of the
Lessor. Neither Lessee nor Paying Agent has any notice of any other assignment, encumbrance,
lien or security interest in respect of the Collection Fund or any Subaccount thereof which is
currently outstanding, and neither Lessee nor the Paying Agent will consent to any other
assignment, encumbrance, lien or security interest in respect of the Collection Fund or the Rental
Payment Subaccount without the prior written consent of the Lessor. The Lessor shall have
exclusive control over transfers, withdrawals, and other dispositions of funds from the Collection
Fund and the Rental Payment Subaccount (but not the Administrative Fee Subaccount, the Annual
Maintenance Subaccount or the Re- lamping Reserve Subaccount) pursuant to the terms and
conditions of the Lease and the Related Agreements. Other than disbursements expressly
permitted pursuant to the terms of this Agreement, neither Lessee nor WRCOG may withdraw any
Collateral (as hereinafter defined) from the Collection Fund (except for subaccounts other than the
Rental Payment Subaccount) or the Rental Payment Subaccount without the prior written consent
of Lessor. All amounts received in the Collection Fund and each subaccount th&ein shall be held
by the Paying Agent in a segregated separate account for the purposes set forth herein, in
accordance with the payment order established in Section 1.3, and will not be commingled with
any other funds or accounts held by the Paying Agent. All amounts received in the Collection
Fund and the Rental Payment Subaccount (but not the Administrative Fee Subaccount, the Annual
Maintenance Subaccount or the Re- lamping Reserve Subaccount) shall be held by the Paying
Agent in trust for the benefit Lessor. All amounts received by Paying Agent as provided in this
Agreement will be held un- invested with no liability of the Paying Agent for any interest thereon;
provided that at the written direction of the Lessee, amounts in the Administrative Fee Subaccount,
the Annual Maintenance Subaccount or the Re- lamping Reserve Subaccount may be invested from
time to time.
Section 1.3. Payments. Lessee shall transmit the amount due for each Payment no later
than the due date as set forth in the Related Agreements. Provided that no Event of Default, Event
of Non - appropriation and /or event or condition that constitutes, or with the giving of notice or the
lapse of time or both would constitute, an Event of Default or an Event of Non - appropriation (each
of the foregoing, a "Termination Event ") shall have occurred, within two business days following
the receipt by the Paying Agent of any Payment, the Paying Agent shall deposit such Payments
and all funds in the Collection Fund into the following subaccounts in the Collection Fund in the
following order and priority:
(a) First, all Payments and all money in the Collection Fund shall be deposited
into the Rental Payment Subaccount to the exclusion of all the other subaccounts until there
exists in the Rental Payment Subaccount funds sufficient to pay all Rental Payments then
past due and owing plus an amount sufficient to pay all Rental Payments then due and
owing plus an amount sufficient pay the sum of the Rental Payment Interest Portion plus
the Rental Payment Principal Portion coming due on the next succeeding Payment Date as
reflected on Annex I hereto, plus any past due amounts and interest thereon, fees, costs,
expenses and any other amounts due to Lessor under-the Lease or any Related Agreement.
If money in the Collection Fund on a Payment Date is sufficient to pay all amounts
described in the preceding sentence that are then due and payable, the Paying Agent shall
-3-
disburse funds in the Rental Payment Subaccount to the Lessor as and when due to Lessor
pursuant to Annex I hereto, the Lease and the Related Agreement. If money in the
Collection Fund on a Payment Date is not sufficient to pay all amounts described in the
second preceding sentence that are then due and payable, the Paying Agent shall disburse
funds in the Rental Payment Subaccount to Lessor to pay such amounts as directed by
Lessor.
(b) Second, after all amounts required by the preceding subparagraph (a) have
been deposited in full, available money in the Collection Fund shall next be deposited into
the Paying Agent Fee Subaccount in an amount sufficient to pay any fees, costs or expenses
due and owing to the Paying Agent under this Agreement including in accordance with the
column titled "Paying Agent Fee Subaccount" on Annex I attached hereto, together with
any past due amounts due to the Paying Agent hereunder. The Paying Agent shall disburse
funds in the Paying Agent Fee Subaccount to the Paying Agent as and when due.
(c) Third, after all amounts required by the preceding subparagraphs (a) and (b)
have been deposited in full, available money in the Collection Fund shall next be deposited
into the Administrative Fee Subaccount in an amount sufficient to pay the amount of the
administrative fees due and payable to WRCOG on the next succeeding Payment Date in
accordance with the column titled "Administrative Fee Subaccount" on Annex I attached
hereto, together with any past due administrative fee amounts owing to WRCOG. The
Paying Agent shall disburse funds in the Administrative Fee Subaccount to WRCOG as
and when due.
(d) Fourth, after all amounts required by the preceding subparagraphs (a)
through (c) have been deposited in full, available money in the Collection Fund shall next
be deposited into the Annual Maintenance Subaccount in an amount equal to the amount
set forth in the column titled "Annual Maintenance Subaccount" on Annex I attached
hereto for the next succeeding payment date identified on Annex I, to pay amounts owing
with respect to Services performed as described in the Implementation Agreement, plus
any amounts due and unpaid with respect to Services performed pursuant to the
Implementation Agreement. The Paying Agent shall disburse funds in the Annual
Maintenance Subaccount to WRCOG or its subcontractors, if any, as and when due
pursuant to invoices submitted by WRCOG.
(e) Fifth, after all amounts required by the preceding subparagraphs (a) through
(d) have been deposited in full, available money in the Collection Fund shall next be
deposited into the Re- lamping Reserve Subaccount, if required, in an amount equal to the
amount set forth in the column titled "Re- lamping Reserve Subaccount" on Annex I
attached hereto for the next succeeding payment date identified on Annex I, to pay amounts
owing with respect to Re- lamping Services as described in the Implementation Agreement,
plus any amounts due and unpaid with respect to Re- lamping Services performed pursuant
to the Implementation Agreement. The Paying Agent shall disburse funds in the Re-
lamping Reserve Subaccount to WRCOG or its subcontractors, if any, as and when due
pursuant to invoices submitted by WRCOG.
isll
(f) Sixth, after all amounts required by the preceding subparagraphs (a) through
(e) have been deposited in full, available money in the Collection Fund shall be disbursed
to Lessee.
Notwithstanding anything herein to the contrary, if at any time the amount of Payments
received or held by the Paying Agent in the Collection Fund is less than the amount required to be
deposited and disbursed pursuant to subparagraphs (a) through (e) above (the difference between
the amounts required to be deposited pursuant to subparagraphs (a) through (e) and amounts in the
Collection Fund, a "Shortfall Amount"), then Paying Agent shall deposit and disburse all
Payments and amounts in the Collection Fund solely as required by subparagraph (a) until all
amounts under subparagraph (a) are satisfied in full before disbursing any funds pursuant to
subparagraphs (b) through (f), in such order of priority until all amounts in the Collection Fund
are deposited and disbursed in full. Paying Agent shall notify Lessor, Lessee and WRCOG in
writing upon its actual knowledge of any Shortfall Amount. To the extent Lessee, Lessor or
WRCOG has actual knowledge that any Shortfall Amount will occur prior to any payment due
date, the party with such knowledge shall give each other party hereto notice as soon as reasonably
practicable, including, if actually known to the Lessee, Lessor or WRCOG, the amount of such
expected Shortfall Amount and the date the Lessee, Lessor or WRCOG anticipates such Shortfall
Amount will occur. No amounts shall be disbursed from the Collection Fund to any subaccount
other than the Rental Payment Subaccount without the prior written consent of the Lessor if at any
time (x) Lessor exercises control over the Rental Payment Subaccount pursuant to Section 1.8
hereof, (y) Paying Agent receives notice that there is a deficiency in amounts required to be
deposited to the Rental Payment Subaccount and /or (z) Paying Agent receives notice that an Event
of Default or Event of Non - appropriation has occurred.
Section 1.4. Termination Payments. Upon the occurrence of a Termination Event, Lessee,
Lessor or WRCOG shall advise and provide written notice thereof to the Paying Agent and each
other party. Upon its knowledge of a Termination Event, Lessor shall provide written instructions
to the Paying Agent as to disbursements of all amounts in the Collection Fund, and upon receipt
of any Payment, the Paying Agent shall, within one business day following the receipt by Paying
Agent of any Payment, make such disbursement from the available funds in the Collection Fund
(a) first, to Lessor, the amount of Rental Payments due in accordance with the Lease and /or Annex
I hereto, together with any past due amounts and interest thereon, fees, costs, expenses and all
other amounts due under the Lease or any Related Agreement, and (b) thereafter in accordance
with Section 1.3 hereof.
Section 1.5. Prepayment of Rental Payments. In connection with any prepayment of Rental
Payments required by the Lease or any other Related Agreement, Lessee shall pay such amounts
directly to the Paying Agent and Paying Agent shall, within one business day following the receipt
by Paying Agent of such amounts, make such disbursement from the available funds in the
Collection Fund (a) first, to Lessor the amount of Rental Payments in accordance with the Lease
and /or Annex I hereto, together with all past due amounts and interest thereon, fees, costs, expenses
and all other amounts due under the Lease or any Related Agreement, (b) next, to Lessor the
amount of Rental Payments and prepayment price due in accordance with the Lease pursuant to a
written instruction signed by Lessee and approved by Lessor, together with any premium relating
thereto and past due amounts and interest thereon, fees, costs, expenses and all other amounts due
519
under the Lease or any Related Agreement and (c) thereafter, without duplication, in accordance
with clauses (a) through (0 of Section 1.3 hereof.
Section 1.6. Reports to be provided by Paying Agent. On or before the 1 oth day of each
calendar quarter, or upon request from Lessee, Lessor or WRCOG, the Paying Agent shall send to
Lessee, Lessor and WRCOG, in accordance with the notice provisions hereof, a quarterly account
statement, showing the amount and payor of each payment received, the total amount received,
and the date, amount and payee of each disbursement from the Collection Fund and each
subaccount therein. The Paying Agent shall provide to Lessee, Lessor and WRCOG promptly
upon receipt copies of any communication between it and the other parties.
Section 1.7. Invoices; Transfer of Funds. (a) Lessor shall provide Lessee with invoices
with respect to amounts to be disbursed from the Rental Payment Subaccount. At least fifteen (15)
business days before each applicable payment date, WRCOG shall provide Lessee with invoices
with respect to amounts to be disbursed from the Paying Agent Fee Subaccount, the Administrative
Fee Subaccount, the Annual Maintenance Subaccount and the Re- lamping Reserve Subaccount.
Prior to each Payment Date identified on Annex I attached hereto, Lessee shall provide the Paying
Agent with all invoices (including the invoice provided by Lessor pursuant to the preceding
sentence), to the extent received by Lessee, with respect to amounts to be disbursed from the Rental
Payment Subaccount, the Paying Agent Fee Subaccount, the Administrative Fee Subaccount, the
Annual Maintenance Subaccount and the Re- lamping Reserve Subaccount.
(b) All amounts payable or deliverable by a party to any other party hereunder shall be
delivered by federal wire transfer of immediately available funds pursuant to the wire instructions
set forth in Exhibit A attached hereto (or to such account at such bank as the party to whom such
funds are delivered shall have designated by an authorized individual to the Paying Agent in
writing at least one business day prior to such wire transfer).
Section 1.8. Control of Collection Fund and Subaccounts. In order to perfect Lessor's
security interest by means of control in (i) the Collection Fund and the Rental Payment Subaccount
established hereunder (but not the Administrative Fee Subaccount, the Annual Maintenance
Subaccount or the Re- lamping Reserve Subaccount), (ii) all securities entitlements, investment
property and other financial assets now or hereafter credited to the Collection Fund and the Rental
Payment Subaccount (but not the Administrative Fee Subaccount, the Annual Maintenance
Subaccount or the Re- lamping Reserve Subaccount), (iii) all of Lessee's and WRCOG's rights in
respect of the Collection Fund and the Rental Payment Subaccount, such securities entitlements,
investment property and other financial assets therein, and (iv) all products, proceeds and revenues
of and from any of the foregoing personal property (collectively, the "Collateral"), Lessor, Lessee,
WRCOG and Paying Agent further agree as follows:
(a) All terms used in this Section 1.8 which are defined in the Commercial Code of the
State of California ( "Commercial Code") but are not otherwise defined herein shall have the
meanings assigned to such terms in the Commercial Code, as in effect on the date of this
Agreement. The Lessor, Lessee, WRCOG and Paying Agent acknowledge and agree that the
Collateral and all proceeds thereof are being held by Escrow Agent for disbursement or return as
set forth herein. Lessee hereby grants to Lessor a first priority perfected security interest in the
lS:�
Collateral, and all proceeds thereof, and all investments made with any amounts in the
Collateral. If the Collateral, or any part thereof, is converted to investments as set forth in this
Agreement, such investments shall be made in the name of Paying Agent and the Paying Agent
hereby agrees to hold such investments as bailee for Lessor so that Lessor is deemed to have
possession of such investments for the purpose of perfecting its security interest.
(b) Paying Agent will comply with all entitlement orders originated by Lessor with
respect to the Collateral, or any portion of the Collateral, without further consent by Lessee.
(c) Provided that account investments shall be held in the name of the Paying Agent,
Paying Agent hereby represents and warrants (a) that the records of Paying Agent show that Lessee
is the sole owner of the Collateral, (b) that Paying Agent has not been served with any notice of
levy or received any notice of any security interest in or other claim to the Collateral, or any portion
of the Collateral, other than Lessor's claim pursuant to this Agreement, and (c) that Paying Agent
is not presently obligated to accept any entitlement order from any person with respect to the
Collateral, except for entitlement orders that Paying Agent is obligated to accept from Lessor under
this Agreement and entitlement orders that Paying Agent, subject to the provisions of paragraph (e)
below, is obligated to accept from Lessee.
(d) Without the prior written consent of Lessor, Paying Agent will not enter into any
agreement by which Paying Agent agrees to comply with any entitlement order of any person other
than Lessor or, subject to the provisions of paragraph (e) below, Lessee, with respect to any portion
or all of the Collateral. Paying Agent shall promptly notify Lessor if any person requests Paying
Agent to enter into any such agreement or otherwise asserts or seeks to assert a lien, encumbrance
or adverse claim against any portion or all of the Collateral.
(e) Paying Agent acknowledges that Lessor reserves the right, by delivery of written
notice to Paying Agent, to prohibit Lessee from effecting any withdrawals (including withdrawals
of ordinary cash dividends and interest income), sales, trades, transfers or exchanges of any
Collateral held in the Collection Fund and the Rental Payment Subaccount. Further, Paying Agent
hereby agrees to comply with any and all written instructions delivered by Lessor to Paying Agent
(once it has had a reasonable opportunity to comply therewith) regarding the Collection Fund and
the Rental Payment Subaccount established hereunder (but not the Administrative Fee Subaccount,
the Annual Maintenance Subaccount or the Re- laming Reserve Subaccount except to the extent
funds are deposited therein in error or in violation of the terms of this Agreement) and has no
obligation to, and will not, investigate the reason for any action taken by Lessor, the amount of
any obligations of Lessee to Lessor, the validity of any of Lessor's claims against or agreements
with Lessee, the existence of any defaults under such agreements, or any other matter. Lessor shall
provide Lessee and WRCOG a copy of any such written instructions that it provides to Paying
Agent at the same time it provides such instructions to the Paying Agent.
(f) Lessee and WRCOG hereby irrevocably authorize Paying Agent to comply with all
instructions and entitlement orders delivered by Lessor to Paying Agent with respect to the
Collection Fund and the Rental Payment Subaccount established hereunder (but not the
Administrative Fee Subaccount, the Annual Maintenance Subaccount or the Re- lamping Reserve
Subaccount except to the extent funds are deposited therein in error or in violation of the terms of
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this Agreement). Lessor shall provide Lessee and WRCOG a copy of any such instructions and
entitlement orders that it provides to Paying Agent at the same time it provides such instructions
to the Paying Agent.
(g) Paying Agent will not attempt to assert control, and does not claim and will not
accept any security or other interest in, any part of the Collateral, and Paying Agent will not
exercise, enforce or attempt to enforce any right of setoff against the Collateral, or otherwise
charge or deduct from the Collateral any amount whatsoever.
(h) Paying Agent and Lessee hereby agree that any property held in the Collection Fund
and the Rental Payment Subaccount shall be treated as a financial asset under such section of the
Commercial Code as corresponds with Section 8 -102 of the Uniform Commercial Code,
notwithstanding any contrary provision of any other agreement to which Paying Agent may be a
party.
Section 1.9. Duties and Responsibilities. (a) The Paying Agent is acting solely as an agent
for the Lessee, Lessor and WRCOG hereunder and owes no duties, fiduciary or otherwise, to any
other Person by reason of this Agreement, except as otherwise may be provided under this
Agreement.
(b) The Paying Agent undertakes to exercise such powers and perform such duties and
obligations as are set forth in this Agreement. The Paying Agent shall have no other powers,
duties, or obligations and none shall be implied or inferred from this Agreement or any other
agreement, instrument or document entered into in connection therewith. Without limiting the
generality of the foregoing, the Paying Agent shall be under no obligation with respect to the
application of any moneys distributed hereunder to the Lessee, Lessor and WRCOG or any other
person except as expressly provided herein. Under no circumstances will the Paying Agent be
responsible or liable for the failure of any other party to perform in accordance with this
Agreement.
(c) In the absence of bad faith, the Paying Agent shall be entitled to request and to rely
upon any note, notice, resolution, request, consent, direction, certificate, officer's certificate,
affidavit, letter, telegram, teletype, message, email, facsimile, statement, order or other
correspondence or document reasonably believed by the Paying Agent to be genuine and correct
and to have been signed or sent by the proper person or persons, without further inquiry into the
person's or persons' authority.
(d) The Paying Agent is not a party to, is not bound by, has no duties or obligations under
or interest in, shall not be bound to ascertain or inquire as to the performance or observance of,
and shall neither be responsible for or chargeable with knowledge of, the Lease or any other
Related Agreement or any other agreement, instrument or document entered into in connection
therewith (except for this Agreement) (each, a "Transaction Document") or any of the terms,
conditions, covenants or agreements contained in any Transaction Document, or as to the existence
of a default or potential default thereunder, whether or not an original or a copy of such Transaction
Document has been provided to the Paying Agent, and the Paying Agent shall have no duty to
know or to inquire as to the performance or nonperformance of any provision of any Transaction
-8-
Document. All references in this Agreement to the Lease, any other Related Agreement or any
other Transaction Document are solely for the reference and convenience of the parties.
(e) The Paying Agent shall not be responsible for the correctness of the recitals and
statements made in this Agreement or in any of the exhibits schedules, annexes and other
attachments.
(f) The Paying Agent shall not be required to recalculate, certify, or verify any numerical
information unless expressly required under this Agreement. Furthermore, the Paying Agent's
receipt of reports or other information provided or otherwise publicly available does not constitute
actual or constructive knowledge or notice unless Paying Agent has an obligation to review its
contents under this Agreement.
(g) In the absence of negligence or misconduct in the receipt, handling and disbursement
of funds actually received by it in accordance with the terms hereof on its part, the Paying Agent
shall not be liable for any action taken, suffered or omitted by it in the performance of its duties
under this Agreement. The Paying Agent shall not be liable for any error of judgment made in
good faith unless and to the extent it is negligent in ascertaining the pertinent facts.
(h) The Paying Agent shall not be liable for any special, indirect, or consequential
damages or losses of any kind whatsoever (including, without limitation, lost profits) including if
the Paying Agent has been advised of the possibility of such damages or losses and regardless of
the form of action.
(i) The provisions of this Section 1.9 shall survive the termination for any reason of this
Agreement, any modification to this Agreement, or the resignation or removal of the Paying Agent.
Section 1.10. Compensation and Expenses. (a) Lessee shall pay to the Paying Agent (i) a
one -time account set up fee equal to $ payable on or about the date of this Agreement,
and (ii) an administration fee equal to $ payable on or about the date of this Agreement
and on each annual anniversary thereof.
(b) To the extent permitted by law and with legally available funds, Lessee shall
indemnify, defend and hold the Paying Agent and its trustees, officers, employees, agents and
affiliates (collectively with the Paying Agent, the " Indemnitees ") harmless from and against every
loss, liability or expense, including without limitation, damages, fines, suits, actions, demands,
costs, out -of- pocket expenses, and reasonable legal fees and expenses (collectively, "Losses "),
that may be imposed on, incurred by, or asserted against, any Indemnitee for or in respect of its
(1) execution and delivery of this Agreement, (2) compliance or attempted compliance with or
reliance upon any instruction or other written direction upon which the Paying Agent is authorized
to rely pursuant to the terms of this Agreement and (3) performance under this Agreement, except
to the extent that the Loss shall have been finally adjudicated by a court of competent jurisdiction
to have directly resulted from such Indemnitee's gross negligence or willful misconduct, or
ordinary negligence in the receipt, handling and disbursement of funds actually received by it in
accordance with the terms hereof. The provisions of this Section 1.10(b) shall survive the
in
termination for any reason of this Agreement, any modification to this Agreement, or the
resignation or removal of the Paying Agent.
(c) Unless determined in a court of competent jurisdiction that it engaged in willful
misconduct or acted in bad faith, any action or non- action asserted by Paying Agent to have been
taken by it on the advice of reasonably selected outside counsel shall be presumed not to have
constituted gross negligence, willful misconduct or bad faith. Paying Agent shall not be liable for
any mistake of fact or error in judgment unless such mistake of fact or error in judgment is
determined by a court of competent jurisdiction to have been made in bad faith.
(d) The Paying Agent may perform any of the duties or exercise any of the powers
provided for in this Agreement either directly or through its agents, representatives, attorneys,
paying agents and /or nominees, and the Paying Agent shall not be responsible for any misconduct
or negligence on the part of any such agent, representative, attorney, paying agent or nominee
appointed by it unless determined in a court of competent jurisdiction that Paying Agent engaged
in willful misconduct or acted in bad faith.
(e) The Paying Agent shall not (x) risk or advance its own funds or otherwise incur any
financial liability or potential financial liability, or (y) be required to take any action or to refrain
from taking any action, in either case in the performance of any of its obligations or duties or in
the exercise of any of its rights or powers under this Agreement, whether on its own motion or at
the request of parties hereto or any other person unless (A) in the case of clause (x), such action
shall be acceptable to the Paying Agent, the Lessee and the Lessor in their respective sole and
absolute discretion and (B), in the case of clause (x) and clause (y), the Paying Agent shall first
have been furnished security and indemnity satisfactory to it against any loss, liability, cost,
damage or expense it may incur, including but not limited to its reasonable attorneys' fees and
expenses, in connection therewith.
Section 1.11. Resignation and Removal of the Paying Agent; Merger. (a) Lessee and
Lessor, together, shall have the right to terminate this Agreement or remove WRCOG and /or the
Paying Agent and /or to appoint a successor paying agent to serve as Paying Agent under this
Agreement upon thirty days' (or such shorter period as is practicable under the circumstances, as
determined by Lessee and Lessor in their sole discretion) advance written notice to WRCOG and
the Paying Agent. The Paying Agent or any successor may at any time resign by giving mailed
notice to Lessee, Lessor and WRCOG of its intention to resign and of the proposed date of
resignation, which shall be a date not less than 30 days after such notice is deposited in the United
States mail with postage fully prepaid, unless an earlier resignation date and the appointment of a
successor shall have been or are approved by Lessee and Lessor, together. If Lessee and Lessor,
together, have not appointed a successor within 30 days of receipt of the Paying Agent's notice of
resignation, Paying Agent shall (x) remit to the Lessor all funds in the Rental Payment Subaccount
and disburse to Lessor all Payments and all money in the Collection Fund until Lessor receives
funds sufficient to pay all Rental Payments then past due and owing plus an amount sufficient to
pay all Rental Payments then due and owing plus an amount sufficient pay the sum of the Rental
Payment Interest Portion plus the Rental Payment Principal Portion coming due on the next
succeeding Payment Date as reflected on Annex I hereto, plus any past due amounts and interest
thereon, fees, costs, expenses and any other amounts due to Lessor under the Lease or any Related
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Agreement and (y) after all amounts described in the preceding clause (x) have been paid in full,
remit to Lessee all amounts in the remainder of the subaccounts maintained hereunder, which
Lessee shall disburse solely as required by Section 1.3(a) until all amounts under Section 1.3(a)
are satisfied in full before disbursing any funds pursuant to subparagraphs (b) through (f) of
Section 1.3, in such order of priority until all amounts are disbursed in full. Except as otherwise
specifically provided herein, the Paying Agent may not delegate, transfer or assign any of the
rights, duties, powers or remedies granted to the Paying Agent hereunder without the prior written
consent of both Lessor and Lessee. Upon its resignation or removal hereunder and delivery of
funds as set forth above, the Paying Agent shall be discharged of and from any and all obligations
hereunder arising after resignation or removal and delivery of funds. Following such resignation
or removal and delivery of funds, the Lessee, Lessor and WRCOG agree that if a successor paying
agent has not been appointed and approved by Lessee and Lessor, then Lessor shall hold such
funds as "paying agent" and perform the duties of paying agent in accordance with a separate
written agreement among Lessee, Lessor and WRCOG (if WRCOG is then a party to this
Agreement), until such time as Lessee and Lessor agree upon a successor paying agent to serve
under a paying agent agreement acceptable to the parties.
(b) Any corporation into which the Paying Agent may be merged or with which it may
be consolidated, or any corporation resulting from any merger or consolidation to which the Paying
Agent is a party, or any state or national bank or trust company in any manner succeeding to all or
substantially all of the corporate trust business of the Paying Agent, shall automatically succeed to
all of the rights and obligations of the Paying Agent hereunder without further action on the part
of any of the parties hereto. Any such successor Paying Agent shall give written notice, within
30 days of such merger, consolidation, or other event to the Lessee, Lessor and WRCOG.
ARTICLE II
MISCELLANEOUS
Section 2.1. Notices. Any and all notices, requests, demands and other communications
given under or in connection with this Agreement shall be effective if in writing and either hand
delivered or mailed by registered or certified mail postage prepaid, or overnight delivery service,
to the addresses as set forth in Exhibit A attached hereto or to such other addresses as are specified
in writing to the other parties hereto.
Section 2.2. No Waivers. No failure or delay in exercising any right hereunder shall
operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right. The rights and remedies of the parties
under this Agreement shall be cumulative and not exclusive of any rights or remedies provided by
law.
Section 2.3. Amendments, etc. No amendment, modification, consent or waiver of any
provision of this Agreement (including, but not limited to Annex I attached hereto), and no consent
to any departure by the parties therefrom, shall be effective unless the same shall be in writing and
signed by an officer of the Paying Agent, the Lessee, the Lessor and WRCOG, and then shall be
effective only in the specific instance and for the specific purpose for which given. Any request
DIE
for an amendment to Annex I attached hereto by WRCOG shall be submitted to Lessor and Lessee
for approval and following their approval shall be submitted to Paying Agent for review and
approval and shall also be signed by WRCOG.
Section 2.4. Severability. If any provision contained in this Agreement is held to be
illegal, invalid or unenforceable under present or future laws, such provision shall be fully
severable, and the remaining provisions thereof shall remain in full force and effect and shall not
be affected by the illegal, invalid or unenforceable provision or by its severance therefrom.
Section 2.5. Successors and Assigns. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and assigns. If
Lessor shall assign or transfer its interest in the Lease, the Escrow Agreement and this Agreement,
Lessor shall provide Paying Agent with notice in the form of Exhibit B hereto (or such other form
as may be approved by the Lessor and the Paying Agent) and the Paying Agent shall promptly
execute and deliver to Lessor said Notice to and Acknowledgement by Paying Agent of
Assignment within five (5) business days after its receipt of such Notice.
Section 2.6. Headings. The headings of articles and sections hereof are inserted for
convenience only and shall in no way define or limit the scope or intent of any provision of this
Agreement.
Section 2.7. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California. The parties hereto consent to jurisdiction in
the State of California and venue in any state or Federal court located in the County of Riverside,
California.
Section 2.8. Counterparts; Effectiveness. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be deemed an
original, with the same effect as if the signatures thereto and hereto were upon the same instrument,
and in making proof of this Agreement it shall not be necessary to produce or account for more
than one such counterpart. This Agreement may be authenticated by manual signature, facsimile
or electronic means, all of which shall be equally valid.
Section 2.9. USA PATRIOT ACT. The parties acknowledge that in order to help the
United States government fight the funding of terrorism and money laundering activities, pursuant
to Federal regulations that became effective on October 1, 2003 (Section 326 of the USA
PATRIOT ACT), all financial institutions are required to obtain, verify, record and update
information that identifies each person establishing a relationship or opening an account. The
parties to this Agreement agree that they will provide to the Paying Agent such information as it
may request, from time to time, in order for the Paying Agent to satisfy the requirements of the
USA PATRIOT Act, including but not limited to the name, physical address, tax identification
number and other information that will allow it to identify the individual or entity who is
establishing the relationship or opening the account and may also ask for formation documents
such as articles of incorporation or other identifying documents to be provided.
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Section 2. 10. Waiver of Trial by Jury; Judicial Reference. EACH PARTY HEREBY WAIVES,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY LITIGATION IN ANY COURT
WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE
OTHER TRANSACTION DOCUMENTS OR THE VALIDITY, PROTECTION, INTERPRETATION, COLLECTION
OR ENFORCEMENT HEREOF OR THEREOF. EACH PARTY AGREES THAT THIS SECTION 2.10 IS A SPECIFIC
AND MATERIAL ASPECT OF THIS AGREEMENT AND EACH OF THE OTHER TRANSACTION DOCUMENTS
AND ACKNOWLEDGES THAT THE OTHER PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT
AND CONSUMMATED THE TRANSACTIONS CONTEMPLATED HEREBY IF THIS SECTION 2.10 WERE NOT
PART OF THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS. IF ANY ACTION OR
PROCEEDING IS FILED IN A COURT OF THE STATE OF CALIFORNIA BY OR AGAINST ANY PARTY HERETO
IN CONNECTION WITH ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY
OTHER RELATED AGREEMENT, (A) THE COURT SHALL, AND IS HEREBY DIRECTED TO, MAKE A
GENERAL REFERENCE PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 638 TO A
REFEREE (WHO SHALL BE A SINGLE ACTIVE OR RETIRED JUDGE) TO HEAR AND DETERMINE ALL OF THE
ISSUES IN SUCH ACTION OR PROCEEDING (WHETHER OF FACT OR OF LAW) AND TO REPORT A
STATEMENT OF DECISION, PROVIDED THAT AT THE OPTION OF ANY PARTY TO SUCH PROCEEDING, ANY
SUCH ISSUES PERTAINING TO A "PROVISIONAL REMEDY" AS DEFINED IN CALIFORNIA CODE OF CIVIL
PROCEDURE SECTION 1281.8 SHALL BE HEARD AND DETERMINED BY THE COURT, AND (B) THE
LESSEE SHALL BE SOLELY RESPONSIBLE TO PAY ALL FEES AND EXPENSES OF ANY REFEREE
APPOINTED IN SUCH ACTION OR PROCEEDING FROM LEGALLY AVAILABLE FUNDS.
Section 2.11. Tax Withholding and Reporting. For certain payments made pursuant to this
Agreement, the Paying Agent may be required to make a "reportable payment" or "withholdable
payment" and in such cases the Paying Agent shall have the duty to act as a payor or withholding
agent, respectively, that is responsible for any tax withholding and reporting required under
Chapters 3, 4, and 61 of the United States Internal Revenue Code of 1986, as amended (the
"Code"). The Paying Agent shall have the sole right to make the determination as to which
payments are "reportable payments" or "withholdable payments." All parties to this Agreement
shall provide an executed IRS Form W -9 or appropriate IRS Form W -8 (or, in each case, any
successor form) to the Paying Agent prior to closing, and shall promptly update any such form to
the extent such form becomes obsolete or inaccurate in any respect. The Paying Agent shall have
the right to request from any party to this Agreement, or any other Person entitled to payment
hereunder, any additional forms, documentation or other information as may be reasonably
necessary for the Paying Agent to satisfy its reporting and withholding obligations under the Code.
To the extent any such forms to be delivered under this Section 2.11 are not provided prior to or
by the time the related payment is required to be made or are determined by the Paying Agent to
be incomplete and /or inaccurate in any respect, the Paying Agent shall be entitled to withhold on
any such payments hereunder to the extent withholding is required under Chapters 3, 4, or 61 of
the Code, and shall have no obligation to gross up any such payment.
Section 2.12. Disagreements. If any conflict, disagreement or dispute arises between,
among, or involving any of the parties hereto concerning the disbursement of funds hereunder, or
if the Paying Agent is in doubt as to the action to be taken or omitted with respect to the
disbursement of funds, the - Paying Agent may, at its option, retain in its possession Payments (and,
in connection therewith, may file an interpleader action in any court of competent jurisdiction),
until the Paying Agent (i) receives a final, non - appealable order of a court of competent jurisdiction
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or a final, non - appealable arbitration decision directing delivery of such Payments, or (ii) receives
a written agreement executed by each of the parties involved in such disagreement or dispute
directing delivery of the Payments, in which event the Paying Agent shall be authorized to disburse
such Payments and Termination Amount in accordance with such agreement. The Paying Agent
shall be entitled to recover from the Lessee, the Lessor and WRCOG all reasonable attorneys' fees,
expenses and other costs incurred in connection therewith. The Paying Agent shall be entitled to
act on any such agreement or court order without further question, inquiry or consent.
Section 2.13. Attachment of Payments; Compliance with Legal Orders. If any Payments
shall be attached, garnished or levied upon by any court order, or the delivery thereof shall be
stayed or enjoined by an order of a court, or any order, judgment or decree shall be made or entered
by any court order affecting any of the Payments, the Paying Agent is hereby expressly authorized,
in its sole discretion, to respond as it deems appropriate or to comply with all writs, orders or
decrees so entered or issued, or which it is advised by legal counsel of its own choosing is binding
upon it, whether with or without jurisdiction. If the Paying Agent obeys or complies with any such
writ, order or decree, it shall not be liable to any of the other parties hereto or to any other person
or entity if, by reason of such compliance notwithstanding, such writ, order or decree is
subsequently reversed, modified, annulled, set aside or vacated. Notwithstanding the foregoing,
unless otherwise expressly prohibited by the applicable attachment, garnishment, levy or order,
judgment or decree under this Section (each, an "Order "), Paying Agent shall give the other
parties to this Agreement prompt notice of its receipt of the order, and (except to the extent
reasonably required to assure Paying Agent's ability to comply with the Order within the required
time if it remains in effect) not comply with the Order until the applicable party has had an
opportunity to challenge it.
Section 2.14. Force Majeure. The Paying Agent shall not be responsible or liable for any
failure or delay in the performance of its obligations (a "Force Majeure Delay ") under this
Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable
control, including without limitation acts of God; earthquakes; fire; flood; wars; acts of terrorism;
civil or military disturbances; sabotage; epidemic; riots; interruptions, loss or malfunctions of
utilities, computer (hardware or software) or communications services; accidents; labor disputes;
or acts of civil or military authority or governmental action, it being understood that the Paying
Agent shall use commercially reasonable efforts which are consistent with accepted practices in
the banking industry to resume performance as soon as reasonably practicable under the
circumstances. In the event of a Force Majeure Delay, the Paying Agent shall notify Lessee,
Lessor and WRCOG in writing within five business days after (i) the occurrence of such Force
Majeure Delay, (ii) the Paying Agent's actual knowledge of the impending Force Majeure Delay,
or (iii) the Paying Agent's knowledge of sufficient facts under which a reasonable person would
conclude such Force Majeure Delay will occur.
[SIGNATURE PAGE FOLLOWS]
-14-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed
by their respective authorized officers as of the date first above written.
PAYING AGENT:
WILMINGTON TRUST, NATIONAL ASSOCIATION
By:
Name:
Title:
Attn:
LESSEE:
[LESSEE]
By:
Name:
Title:
Attn:
[Signature Page to Paying Agent Agreement]
LESSOR:
BANC OF AMERICA LEASING & CAPITAL, LLC
C
Name:
Title:
11333 McCormick Road
Hunt Valley II
M/C MD5- 032 -07 -05
Hunt Valley, MD 21031
Facsimile: (443) 556 -6977
Attn: Contract Administration
WRCOG:
WESTERN RIVERSIDE COUNCIL OF
GOVERNMENTS
By: -- —
Name:
Title:
Attn:
[Signature Page to Paying Agent Agreement]
EXHIBIT A
NOTICE & WIRE
INSTRUCTIONS
If to the Lessor:
Address for Notices:
Banc of America Leasing & Capital, LLC
11333 McCormick Road, Hunt Valley II, M/C MD5- 032- 07 -05,
Hunt Valley, Maryland 21031
Attention: Terri Preston
Telephone: (443) 541 -3642
Facsimile: (804) 553 -8124
Email: terri.preston @baml.com
Payment Account:
Routing #:
Account #:
Bank Name:
Ref: [«LesseeName »]
If to WRCOG:
Address for Notices:
Western Riverside Council of Governments
Telephone:
Facsimile:
Attention:
Reference:
Payment Office:
Receiving Bank:
Routing /ABA #:
Account #:
Bank Address:
Reference: «LesseeName»
Attention:
If to the Lessee:
Address for Notices:
Telephone:
Facsimile:
Attention:
Reference:
Payment Office:
Receiving Bank:
Routing/ABA #:
Account #:
Bank Address:
Reference: «LesseeName»
Attention:
If to the Paying Agent:
Address for Notices:
Wilmington Trust, National Association
650 Town Center Drive, Suite 600
Costa Mesa, CA 92626
Telephone: (714) 384 -4177
Facsimile: (714) 384 -4151
Attention: Aimee Tabor
Reference:
A -2
EXHIBIT B
FORM OF NOTICE TO AND ACKNOWLEDGEMENT BY PAYING AGENT OF ASSIGNMENT
1,20
Wilmington Trust, National Association (the "Paying Agent ")
Attn:
Fax:
Reference is hereby made to that certain [DESCRIBE ASSIGNMENT DOCUMENTS],
dated as of [ , by and between [BANC OF AMERICA LEASING & CAPITAL, LLC]
("Assignor"), and I ( "Assignee ").
1. Assignor hereby gives the Paying Agent notice and the Paying Agent hereby
acknowledges receipt of notice, that effective as of I _ . . 20-1 (the "Effective Date"),
pursuant to Section 1 l .0l of the hereinafter defined ELPA, Assignor has assigned to Assignee,
whose offices are at [ , all rights, title, interests, obligations and liabilities of
Assignor accruing on or after the Effective Date in, under and to: (i) the Equipment Lease /Purchase
Agreement dated as of I (the "ELPA "), between Assignor, as lessor (the `Lessor "),
and I J, as lessee (the "Lessee"), including the right to receive any and all sums
payable pursuant to, or recoverable in connection with, such ELPA, including, but not limited to:
(A) all "Rental Payments" (as such term is defined in such ELPA) payable on or after the date of
execution hereof, (B) all monies due or to become due under such ELPA; and (C) all monies
payable or recoverable following a default by Lessee; (ii) that certain Escrow and Account Control
Agreement dated as of _ (the "Escrow Agreement"), among Lessor, Lessee and Bank
of America, N.A. as escrow agent; (iii) that certain Paying Agent Agreement dated as of
, 20_] (the "Paying Agent Agreement "), among Lessee, Lessor, the Western
Riverside Council of Governments, and the Paying Agent; and (iv) all of Assignor's other rights
and remedies under the documents described in clauses (i) through (iii) above; and that Assignee
has accepted and has assumed the Assignor's rights, title, interests, obligations and liabilities with
respect thereto.
2. The Paying Agent hereby acknowledge the assignment and assumption described
above and agree that, from and after the Effective Date, the Assignee shall be the "Lessor" under
the ELPA, the Escrow Agreement and the Paying Agent Agreement and shall be entitled to
exercise all rights and remedies of the Lessor under the ELPA, the Escrow Agreement and the
Paying Agent Agreement.
3. All payments to be made to the Assignee, as Lessor, shall be disbursed to the
following account of the Assignee:
If by Wire:
Account Name:
Account Number:
ABA Number:
Bank Address:
If by ACH:
Account Name:
Account Number;
ABA Number:
Bank Address:
[Signature pages follow]
,i
Accepted and agreed to on , 20.
WILMINGTON TRUST, NATIONAL ASSOCIATION
Name:
Title:
[BANC OF AMERICA LEASING & CAPITAL, LLC],
as Assignor
By:
Name:
Title:
[Signature Page to Notice to and Acknowledgement by Paying Agent ofAssignmenil