HomeMy WebLinkAbout28257-01-2026 - City Council - OrdinanceORDINANCE NO. 28257-01-2026
FORTY-SEVENTH SUPPLEMENTAL ORDINANCE AUTHORIZING THE
ISSUANCE AND SALE OF CITY OF FORT WORTH, TEXAS WATER AND
SEWER SYSTEM REVENUE BOND, SERIES 2026 (MARY'S CREEK WATER
RECLAMATION FACILITY PROJECT) (WIFIA ID — N23107TX), IN AN
INITIAL PRINCIPAL AMOUNT (EXCLUDING CAPITALIZED INTEREST)
NOT TO EXCEED $347,655,441 AND AN AGGREGATE PRINCIPAL
AMOUNT (INCLUDING CAPITALIZED INTEREST ADDED TO THE
PRINCIPAL AMOUNT) NOT TO EXCEED $383,121,297; DELEGATING TO
DESIGNATED CITY OFFICIALS THE AUTHORITY TO EFFECT THE SALE
OF THE BOND; ENACTING OTHER PROVISIONS RELATING TO THE
SUBJECT; AND DECLARING AN IMMEDIATE EFFECTIVE DATE
THE STATE OF TEXAS
COUNTIES OF TARRANT, DENTON, WISE, PARKER AND JOHNSON
CITY OF FORT WORTH
WHEREAS, the City of Fort Worth, Texas (the "City" or the "Issuer"), a "home -rule" city
operating under a home -rule charter adopted pursuant to Section 5 of Article XI of the Texas
Constitution, with a population according to the latest federal decennial census of in excess of
50,000, has established and currently owns and operates a combined waterworks and sanitary
sewer system (the "System"); and
WHEREAS, the City heretofore has established the City of Fort Worth, Texas Water and
Sewer System Revenue Financing Program for the purpose of providing a financing structure for
revenue supported indebtedness of the System; and
WHEREAS, said program was established pursuant to the terms of a "Master Ordinance
Establishing the City of Fort Worth, Texas Water and Sewer System Revenue Financing Program"
(the "Master Ordinance"); and
WHEREAS, unless otherwise defined herein, terms used herein shall have the meaning
given in the Master Ordinance; and
WHEREAS, the Master Ordinance authorizes revenue supported indebtedness to be issued,
incurred or assumed pursuant to the terms of supplemental ordinances (any such ordinance being
a "Supplement"); and
WHEREAS, pursuant to the terms of the Master Ordinance, the City has adopted forty-six
Supplements (designated as the "First Supplement", "Second Supplement", "Third Supplement",
"Fourth Supplement", "Fifth Supplement", "Sixth Supplement", "Seventh Supplement", "Eighth
Supplement", "Ninth Supplement", "Tenth Supplement", "Eleventh Supplement", "Twelfth
Supplement", "Thirteenth Supplement", "Fourteenth Supplement", "Fifteenth Supplement",
"Sixteenth Supplement", "Seventeenth Supplement", "Eighteenth Supplement", "Nineteenth
Supplement", "Twentieth Supplement", "Twenty -First Supplement", "Twenty -Second
Supplement", "Twenty -Third Supplement", "Twenty -Fourth Supplement", "Twenty -Fifth
Supplement", "Twenty -Sixth Supplement", "Twenty -Seventh Supplement", "Twenty -Eighth
Supplement", "Twenty -Ninth Supplement", "Thirtieth Supplement", "Thirty -First Supplement",
"Thirty -Second Supplement", "Thirty -Third Supplement", "Thirty -Fourth Supplement", "Thirty-
Fifth Supplement", "Thirty -Sixth Supplement", "Thirty -Seventh Supplement", "Thirty -Eighth
Supplement", "Thirty -Ninth Supplement", "Fortieth Supplement", "Forty -First Supplement",
"Forty -Second Supplement", "Forty -Third Supplement", "Forty -Fourth Supplement", "Forty -Fifth
Supplement" and "Forty -Sixth Supplement", respectively, and the "Prior Supplements",
collectively) pursuant to which (i) the City of Fort Worth, Texas Water and Sewer System Revenue
Refunding Bonds, Series 1991A and Series 1991B, the City of Fort Worth, Texas Water and Sewer
System Revenue Refunding Bonds, Series 1993, the City of Fort Worth, Texas Water and Sewer
System Revenue Refunding and Improvement Bonds, Series 1996, the City of Fort Worth, Texas
Water and Sewer System Revenue Refunding and Improvement Bonds, Series 1997, the City of
Fort Worth, Texas Water and Sewer System Revenue Refunding and Improvement Bonds,
Series 1998, the City of Fort Worth, Texas Water and Sewer System Revenue Bonds, Series 2000,
the City of Fort Worth, Texas Water and Sewer System Revenue Refunding and Improvement
Bonds, Series 2000B, the City of Fort Worth, Texas Water and Sewer System Revenue Bonds,
Series 2001, the City of Fort Worth, Texas Water and Sewer System Revenue Refunding and
Improvement Bonds, Series 2003, the City of Fort Worth, Texas Water and Sewer System Revenue
Refunding Bonds, Series 2003A, the City of Fort Worth, Texas Water and Sewer System Auction
Rate Revenue Bonds, Series 2004, the City of Fort Worth, Texas Water and Sewer System
Revenue Refunding and Improvement Bonds, Series 2005, the City of Fort Worth, Texas Water
and Sewer System Revenue Refunding Bonds, Series 2005A, the City of Fort Worth, Texas Water
and Sewer System Revenue Bonds, Series 2007, the City of Fort Worth, Texas Water and Sewer
System Revenue Refunding Bonds, Series 2008, the City of Fort Worth, Texas Water and Sewer
System Revenue Bonds, Series 2009, the City of Fort Worth, Texas Water and Sewer System
Revenue Refunding Bonds, Series 2010, the City of Fort Worth, Texas Water and Sewer System
Revenue Bonds, Series 2010A, the City of Fort Worth, Texas Water and Sewer System Revenue
Bonds, Series 2010B, the City of Fort Worth, Texas Water and Sewer System Revenue Bonds,
Series 2010C, the City of Fort Worth, Texas Water and Sewer System Revenue Refunding and
Improvement Bonds, Series 2011, the City of Fort Worth, Texas Water and Sewer System Revenue
Refunding Bonds, Series 2012, the City of Fort Worth, Texas Water and Sewer System Revenue
Refunding and Improvement Bonds, Series 2014, the City of Fort Worth, Texas Water and Sewer
System Revenue Bonds, Series 2015, the City of Fort Worth, Texas Water and Sewer System
Revenue Refunding and Improvement Bonds, Series 2015A, the City of Fort Worth, Texas Water
and Sewer System Revenue Bonds, Series 2015B, the City of Fort Worth, Texas Water and Sewer
System Revenue Refunding and Improvement Bonds, Series 2016, the City of Fort Worth, Texas
Water and Sewer System Revenue Bonds, Series 2017, the City of Fort Worth, Texas Water and
Sewer System Revenue Refunding and Improvement Bonds, Series 2017A, the City of Fort Worth,
Texas Water and Sewer System Revenue Bonds, Series 2017B, the City of Fort Worth, Texas
Water and Sewer System Revenue Bonds, Series 2018, the City of Fort Worth, Texas Water and
Sewer System Revenue Bonds, Series 2019, the City of Fort Worth, Texas Water and Sewer
System Revenue Bonds, Series 2020, the City of Fort Worth, Texas Water and Sewer System
Revenue Refunding and Improvement Bonds, Series 2020A, the City of Fort Worth, Texas Water
and Sewer System Revenue Refunding and Improvement Bonds, Series 2021, the City of Fort
Worth, Texas Water and Sewer System Revenue Bonds, Series 2022, the City of Fort Worth, Texas
Water and Sewer System Revenue Bonds, Series 2023, the City of Fort Worth, Texas Water and
Sewer System Revenue Refunding Bonds, Series 2023A, the City of Fort Worth, Texas Water and
Sewer System Revenue Bonds, Series 2024, the City of Fort Worth, Texas Water and Sewer
System Revenue Bonds, Series 2024B CWSRF (Village Creek), the City of Fort Worth, Texas
Water and Sewer System Revenue Bonds, Series 2024C SWIFT (Eagle Mountain), the City of
Fort Worth, Texas Water and Sewer System Revenue Bonds, Series 2025, and the City of Fort
Worth, Texas Water and Sewer System Revenue Bonds, Series 2025B SWIFT (Eagle Mountain)
were issued, (ii) the City of Fort Worth, Texas Water and Sewer System Revenue Refunding
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Bonds, with one or more Series designations to be determined, were authorized to be issued within
certain designated parameters set forth in the Thirty -Second Supplement, as needed in furtherance
of the System's Commercial Paper Notes, Callable CP Series program, (iii) the City of Fort Worth,
Texas Water and Sewer System Revenue Refunding Bonds, Taxable Series 2022 were authorized
but did not issue, with such authority having expired and not been renewed, and (iv) the City
entered into two respective ISDA Master Agreements (referred to herein as the "Swap
Agreements"), one with Lehman Brothers Special Financing Inc., and the other with GBDP, L.P.;
and
WHEREAS, the aforesaid Series 1991A Bonds, Series 1991B Bonds, Series 1993 Bonds,
Series 1996 Bonds, Series 1997 Bonds, Series 1998 Bonds, Series 2000 Bonds, Series 2000B
Bonds, Series 2001 Bonds, Series 2003 Bonds, Series 2003A Bonds, Series 2004 Bonds,
Series 2005 Bonds, Series 2005A Bonds, Series 2007 Bonds, Series 2008, Series 2010,
Series 2010A, Series 2010B, Series 2010C Bonds, Series 2011 Bonds, Series 2012 Bonds and
Series 2014 Bonds are no longer Outstanding, and the aforesaid Series 2009 Bonds, Series 2015
Bonds, Series 2015A Bonds, Series 2015B Bonds, Series 2016 Bonds, Series 2017 Bonds,
Series 2017A Bonds, Series 2017B Bonds, Series 2018 Bonds, Series 2019 Bonds, Series 2020
Bonds, Series 2020A Bonds, Series 2021 Bonds, Series 2022 Bonds, Series 2023 Bonds, Series
2023A Bonds, Series 2024 Bonds, Series 2024B Bonds, Series 2024C Bonds, Series 2025 Bonds
and Series 2025B Bonds are hereinafter referred to as the "Previously Issued Parity Bonds"; and
WHEREAS, the Swap Agreements entered into pursuant to the terms of the Fourth
Supplement by their respective terms have expired, and the City has no further obligations
thereunder; and
WHEREAS, no bonds have been issued under the authority of the Thirty -Second
Supplement; and
WHEREAS, no bonds were sold under authority of the Thirty -Eighth Supplement, and the
authority to sell bonds under the Thirty -Eighth Supplement has expired and was not renewed; and
WHEREAS, the Previously Issued Parity Bonds are secured by a first lien on and pledge
of the Pledged Revenues of the System; and
WHEREAS, the bond authorized by this Forty -Seventh Supplement is to be issued for the
purpose of extending and improving the City's combined water and sewer system, as further
described in this Forty -Seventh Supplement; and
WHEREAS, the City has requested that the United States Environmental Protection
Agency, an agency of the United States of America, acting by and through the Administrator of
the Environmental Protection Agency (the "WIFIA Lender"), make the WIFIA Loan (as defined
herein) in an initial principal amount (excluding capitalized interest) not to exceed $347,655,441
and an aggregate principal amount (including capitalized interest added to the principal amount of
the Bond in accordance with the WIFIA Loan Agreement) not to exceed $383,121,297 (the
"WIFIA Loan") to be used to pay a portion of the Eligible Project Costs (as defined herein) related
to the Project (as defined in the WIFIA Loan Agreement); and
WHEREAS, the WIFIA Lender proposes to approve WIFIA financial assistance for the
Project in the form of a direct loan in an initial principal amount (excluding capitalized interest)
not to exceed $347,655,441 and an aggregate principal amount (including capitalized interest
added to the principal amount of the Bond in accordance with the WIFIA Loan Agreement) not to
exceed $383,121,297; and
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WHEREAS, the WIFIA Lender proposes to extend credit upon the terms and conditions
contained in the WIFIA Loan Agreement (as defined herein); and
WHEREAS, the City agrees to repay any amount due pursuant to the WIFIA Loan
Agreement and the Bond (as defined herein) in accordance with the terms and provisions of the
WIFIA Loan Agreement and the Bond; and
WHEREAS, the Bond authorized by the terms of this Forty -Seventh Supplement will
constitute a Parity Obligation (as defined herein) under the terms of the Master Ordinance secured
by a first lien on and pledge of the Pledged Revenues, including such revenues within the System
Fund created by the Master Ordinance, in accordance with the Master Ordinance and this Forty -
Seventh Supplement, on a parity with the lien and pledge securing the Previously Issued Parity
Bonds and any other Parity Obligations; and
WHEREAS, the City desires to adopt this Forty -Seventh Supplement to set forth the terms
of the City's obligations to the WIFIA Lender relating to the issuance by the City of the Bond
authorized herein, which is being issued to evidence any advances to be made by the WIFIA
Lender under the WIFIA Loan Agreement, a contract allowing for the construction of System
facilities pursuant to Section 1502.002(b) of the Texas Government Code, as amended, and a
contract in connection with providing funds for the construction of System facilities pursuant to
Section 1502.051(c) of the Texas Government Code, as amended; and
WHEREAS, because of the nature of the WIFIA Loan, the City Council delegates to the
City Manager and the Chief Financial Officer/Director of Financial Management Services of the
City, individually, but not collectively (each, an "Authorized Representative") the authority to
effect the sale of the bond authorized by this Forty -Seventh Supplement, subject to the parameters
described in this Forty- Seventh Supplement;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FORT WORTH, TEXAS THAT:
Section 1. DEFINITIONS. In addition to the definitions set forth in the preamble of this
Forty -Seventh Supplement, the terms used in this Forty -Seventh Supplement (except in the FORM
OF BOND) and not otherwise defined shall have the meanings given in the Master Ordinance, the
Prior Supplements or in Exhibit A to this Forty -Seventh Supplement.
Section 2. WIFIA LOAN AGREEMENT AND BOND AUTHORIZATION.
(a) Authorization. (i) The WIFIA Loan Agreement, a substantially final draft of which is
attached hereto as Exhibit B constitutes a contract allowing for the construction of System
facilities pursuant to Section 1502.002(b) of the Texas Government Code, as amended, and
contracts in connection with providing funds for the construction of System facilities pursuant to
Section 1502.051(c) of the Texas Government Code, as amended. Under the WIFIA Loan
Agreement, capitalized interest is added to the principal amount of the Bond at the end of the
capitalized interest period. The WIFIA Loan Agreement and the Bond evidencing amounts due
under the WIFIA Loan Agreement are hereby authorized in an initial principal amount (excluding
capitalized interest) not to exceed $347,655,441 and an aggregate principal amount (including
capitalized interest added to the principal amount of the Bond in accordance with the WIFIA Loan
Agreement) not to exceed $383,121,297 to be used to provide funds for paying a portion of the
Eligible Project Costs related to the Project.
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(ii) Each Authorized Representative is hereby authorized and directed to approve the final
terms and conditions of the WIFIA Loan Agreement and to execute and deliver the Award
Certificate and the WIFIA Loan Agreement to the WIFIA Lender. The authority for an Authorized
Representative to execute the Award Certificate and the WIFIA Loan Agreement shall expire at
5:00 p.m. Central Time on January 30, 2026. So long as the Award Certificate is executed on or
before such date and time, the Bond and the WIFIA Loan Agreement may be executed and
delivered to the WIFIA Lender after such date. The WIFIA Loan Agreement, together with the
Bond, is authorized pursuant to authority conferred by and in conformity with State law.
(iii) In order to satisfy the requirements of the WIFIA Lender in connection with the
delivery of the Bond and the WIFIA Loan Agreement, the term sheet in connection therewith is
hereby authorized to be executed and delivered by an Authorized Representative in substantially
the form attached hereto as Exhibit C.
(b) Terms of Bond and WIFIA Loan Agreement and Award Certificate. (i) There shall
be issued and delivered hereunder one bond, payable to the WIFIA Lender, in an initial principal
amount (excluding capitalized interest) not to exceed $347,655,441 and an aggregate principal
amount (including capitalized interest added to the principal amount of the Bond in accordance
with the WIFIA Loan Agreement) not to exceed $383,121,297. The Bond shall be executed by
manual or facsimile signature of the Mayor, the City Secretary and the City Attorney, approved
by the Attorney General, and registered and signed by the Comptroller in the manner prescribed
by law. The Bond shall be designated the "City of Fort Worth, Texas Water and Sewer System
Revenue Bond, Series 2026 (Mary's Creek Water Reclamation Facility Project) (WIFIA ID —
N23107TX)" and shall be numbered consecutively from R-1 upward. Advances made pursuant to
the WIFIA Loan Agreement, which shall be evidenced by the Bond, shall mature not later than 40
years from the date of the initial delivery of the Bond, all as further set forth in the Bond and the
WIFIA Loan Agreement. All principal of the Bond shall be payable as provided, and in the manner
required or indicated, in the WIFIA Loan Agreement.
(ii) As authorized by the Chapter 1371, each Authorized Representative is hereby
authorized, appointed and designated to act on behalf of the City in delivering the WIFIA Loan
Agreement and the Bond and carrying out the other procedures specified in this Forty -Seventh
Supplement, including determining and fixing the Effective Date, which shall be the delivery date
of the Bond, any additional or different designation or title by which the Bond shall be known, the
years in which the Bond will mature, the principal amount to mature or otherwise be payable in
each of such years, the aggregate principal amount of Bond, the rate or rates of interest to be borne
by any maturity, the interest payment periods, and all other matters relating to the issuance, sale,
and delivery of the Bond and the WIFIA Loan Agreement, all of which shall be specified in the
Award Certificate; provided that the Bond shall not bear interest at a rate greater than the Highest
Lawful Rate. The Award Certificate, when executed and delivered, is hereby incorporated into and
made a part of this Forty -Seventh Supplement.
It is further provided, however, that notwithstanding the foregoing provisions, the Bond
shall not be delivered unless, prior to delivery, the Bond has been rated by a nationally recognized
rating agency for municipal securities in one of the four highest rating categories for long term
obligations, as required by Section 1371.001(5), Texas Government Code.
In satisfaction of Sections 1201.022(a)(3) and Section 1371.056(c), Texas Government
Code, as applicable, the City hereby determines that the delegation of the authority to each
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Authorized Representative to approve the final terms and conditions of the WIFIA Loan
Agreement and the Bond as set forth in this Forty -Seventh Supplement and the decisions made by
each Authorized Representative pursuant to such delegated authority and incorporated in the
Award Certificate will be, in the best interests and shall have the same force and effect, as if such
determination were made by the City Council, and each Authorized Representative is hereby
authorized to make and include in each Award Certificate an appropriate finding to that effect.
(iii) The Bond (A) may and shall be prepaid prior to the respective scheduled payment
dates pursuant to the respective optional and mandatory prepayment requirements in the WIFIA
Loan Agreement, (B) may not be assigned or transferred except as provided in the Bond and the
WIFIA Loan Agreement, (C) shall have the characteristics, (D) shall be signed and sealed, and (E)
shall be payable, as to the principal thereof and interest thereon, all as provided, and in the manner
required or indicated, in the Master Ordinance, this Forty -Seventh Supplement, the Bond and the
WIFIA Loan Agreement.
Section 3. PAYMENT OF BOND; PAYING AGENT/REGISTRAR.
(a) The City appoints BOKF, NA, Dallas, Texas (the "Paying Agent/Registrar") to act as
the paying agent/registrar for the Bond. By accepting the appointment as Paying Agent/Registrar,
the Paying Agent/Registrar acknowledges receipt of copies of the Master Ordinance and this Forty -
Seventh Supplement and is deemed to have agreed to the provisions thereof and hereof. The
principal of, premium, if any, and the interest on the Bond shall be payable, without exchange or
collection charges to the Owner thereof, in any coin or currency of the United States of America
that at the time of payment is legal tender for the payment of public and private debts.
(b) The City agrees and covenants to cause to be kept and maintained at the designated
office of the Paying Agent/Registrar a Security Register, all as provided herein, in accordance with
the terms and provisions of the Paying Agent/Registrar Agreement and such reasonable rules and
regulations as the Paying Agent/Registrar and the City may prescribe. In addition, to the extent
required by law, the City covenants to cause to be kept and maintained the Security Register or a
copy thereof in the State.
(c) The City expressly reserves the right to appoint one or more successor Paying
Agent/Registrars, by filing with the Paying Agent/Registrar a certified copy of a resolution or
ordinance of the City making such appointment. The City further expressly reserves the right to
terminate the appointment of the Paying Agent/Registrar by filing a certified copy of a resolution
of the City giving notice of the City's termination of the City's agreement with such Paying
Agent/Registrar and appointing a successor. The City covenants to maintain and provide a Paying
Agent/Registrar at all times until the Bond is paid and discharged, and any successor Paying
Agent/Registrar shall be a bank, trust company, financial institution, or other entity duly qualified
and legally authorized to serve as and perform the duties and services of Paying Agent/Registrar
for the Bond. If a Paying Agent/Registrar is replaced, such Paying Agent/Registrar, promptly
upon the appointment of the successor, will deliver the Security Register (or a copy thereof) and
all other pertinent books and records relating to the Bond to the successor Paying Agent/Registrar.
Upon any change in the Paying Agent/Registrar, the City agrees promptly to cause a written notice
thereof to be sent to the Owner of the Bond by United States mail, first-class postage prepaid,
which notice shall also give the address of the new Paying Agent/Registrar.
(d) The principal of, premium, if any, and interest on the Bond due and payable by reason
of maturity, redemption, or otherwise, shall be payable only to the Owner thereof appearing on the
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Security Register, and, to the extent permitted by law, neither the City nor the Paying
Agent/Registrar, nor any agent of either, shall be affected by notice to the contrary.
(e) The Bond and the WIFIA Loan Agreement shall not be issued in book -entry -only form.
(f) An authorized representative of the Paying Agent/Registrar shall, before the delivery
of any Bond issued in exchange for any Bond Number R-1 or any other Bond issued under this
Forty -Seventh Supplement, date and manually sign the "Paying Agent/Registrar's Authentication
Certificate" attached to such Bond (the "Authentication Certificate"), and no such Bond shall be
deemed to be issued or outstanding under this Forty -Seventh Supplement unless such certificate is
so authenticated. The Paying Agent/Registrar's Authentication Certificate shall be in the form set
forth in the WIFIA Loan Agreement. Notwithstanding the first sentence of this paragraph, Bond
Number R-1 shall not need an executed Trustee's Authentication Certificate but shall be
outstanding, when delivered, if an executed Registration Certificate of the Comptroller of Public
Accounts of the State of Texas is attached thereto.
Section 4. FORM OF BOND. The form of the Bond shall be substantially as set forth in
the WIFIA Loan Agreement (including the form of the Paying Agent/Registrar's Authentication
Certificate, the form of Assignment and the form of Registration Certificate of the Comptroller of
Public Accounts of the State of Texas to be attached to the Bond Number R-1) with such
appropriate variations, omissions, or insertions as are permitted or required by the WIFIA Loan
Agreement and the Award Certificate. It is specifically provided that the provisions of the Bond
to be provided in the Award Certificate shall be incorporated into the form of the executed Bond.
Section 5. RESERVED.
Section 6. RESERVED.
Section 7. ESTABLISHMENT OF FINANCING PROGRAM AND ISSUANCE OF
PARITY OBLIGATIONS. By adoption of the Master Ordinance the City has established the City
of Fort Worth, Texas Water and Sewer System Revenue Financing Program for the purpose of
providing a financing structure for revenue supported indebtedness of the System. The Master
Ordinance is intended to establish a master plan under which revenue supported debt of the System
can be incurred. This Forty -Seventh Supplement provides for the authorization, issuance, sale,
delivery, form, characteristics, provisions of payment and redemption and security of the Bond,
which is Parity Obligation under the Master Ordinance. The Master Ordinance is incorporated
herein by reference and as such made a part hereof for all purposes, except to the extent modified
and supplemented hereby, and the Bond is hereby declared to be a Parity Obligation under the
Master Ordinance. The City hereby determines that it will have sufficient funds to meet the
financial obligations of the System, including sufficient Pledged Revenues to satisfy the Annual
Debt Service Requirements of the System and to meet all financial obligations of the City relating
to the System. The City hereby finds and determines that all terms and conditions for the issuance
of the Bond herein authorized as a Parity Obligation have been or can be met and satisfied.
Section 8. PLEDGE. (a) Pledge of Pledged Revenues. The Bond is and shall be secured
by and payable from a first lien on and pledge of the Pledged Revenues, including such revenues
within the System Fund created by the Master Ordinance, in accordance with the Master Ordinance
and this Forty -Seventh Supplement; and the Pledged Revenues are further pledged to the
establishment and maintenance of the Debt Service Fund, and to the Reserve Fund to the extent
hereinafter provided. Such lien on and pledge of the Pledged Revenues is on a parity with the lien
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and pledge securing the Previously Issued Parity Bonds and any other Parity Obligations. The
Bond is and will be secured by and payable only from the Pledged Revenues and is not secured by
or payable from a mortgage or deed of trust on any properties, whether real, personal or mixed,
constituting the System. In addition, such pledge shall exclude any grants, donations, income or
other funds received or to be received from the Federal Government.
(b) Perfection of Lien. Chapter 1208 applies to the issuance of the Bond and the pledge
of the Pledged Revenues granted by the City under subsection (a) of this Section, and such pledge
is therefore valid, effective, and perfected. If Texas law is amended at any time while the Bond is
Outstanding and unpaid such that the pledge of the Pledged Revenues granted by the City is to be
subject to the filing requirements of Chapter 9, then in order to preserve to the Owners of the Bond
the perfection of the security interest in said pledge, the City agrees to take such measures as it
determines are reasonable and necessary under Texas law to comply with the applicable provisions
of Chapter 9 and enable a filing to perfect the security interest in said pledge to occur.
(c) Security. In order to ensure that the Administrator is and shall be in compliance with
the provisions of 40 C.F.R. § 35.10045, the City shall not pledge any grants, donations or income
received or to be received from the United States Government as security for the WIFIA Loan
Agreement and the Bond. Any attempted or purported pledge of any such amounts which results
in a pledge of any such amounts as security for the WIFIA Loan Agreement and the Bond in
violation of the provisions of 40 C.F.R. § 35.10045 shall be null and void and otherwise ineffective.
If at any time any portion of the Pledged Revenues (as defined in the WIFIA Loan Agreement)
shall include any grants, donations, income or other funds received or to be received from the
Federal Government, the Borrower shall cause such Federal Government funds to be applied to
the non -Federal Government Obligations for which they are intended before applying any other
Pledged Revenues to the payment of such Obligations.
Section 9. DEBT SERVICE FUND ACCOUNTS. With respect to the Bond, no special
account need be established to facilitate the payment of debt service on the Bond.
Section 10. RESERVE FUND. No deposits shall be made to the credit of the Reserve
Fund, as provided in Section 12(b) of this Forty -Seventh Supplement.
Section 11. INVESTMENTS. To the extent a reserve fund for the Bond is created after
its delivery, money in the Reserve Fund created under this Forty -Seventh Supplement shall not be
invested in securities with an average aggregate weighted maturity of greater than seven years.
The value of the Reserve Fund, in addition to the annual determination described in the Master
Ordinance, shall be established at the time or times withdrawals are made therefrom. Investments
shall be sold promptly when necessary to prevent any default in connection with the Bond.
Earnings derived from the investment of moneys on deposit in the various Funds and Accounts
shall be credited to the Fund or Account from which moneys used to acquire such investment shall
have come.
Section 12. FLOW OF FUNDS. All monies in the System Fund not required for paying
Operating Expenses during each month shall be applied by the City, on or before the 10th day of
the following month, commencing during the months and in the order of priority with respect to
the Funds and Accounts that such applications are hereinafter set forth in this Section. If on any
occasion there shall not be sufficient Pledged Revenues to make the required deposits into the
Funds and Accounts established in accordance with the Master Ordinance and any Supplement for
any Outstanding Parity Obligations, then such available Pledged Revenues shall be applied prorata
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to any such required deposits and any such deficiency shall be made up as soon as possible from
the next available Pledged Revenues, or from any other source available for such purpose.
(a) Debt Service Fund - To the credit of the Debt Service Fund, in the following order of
priority, to -wit:
(1) such amounts, deposited in approximately equal monthly installments,
commencing during the month in which the Bond is delivered, or the month thereafter if
delivery is made after the loth day thereof, as will be sufficient, together with other
amounts, if any, in the Debt Service Fund available for such purpose, to pay the interest
scheduled to come due on the Bond on the next succeeding interest payment date; and
(2) such amounts, deposited in approximately equal monthly installments,
commencing during the month which shall be the later to occur of, (i) the twelfth month
before the first maturity date of the Bond, or (ii) the month in which the Bond is delivered,
or the month thereafter if delivery is made after the 10th day thereof, as will be sufficient,
together with other amounts, if any, in the Debt Service Fund available for such purpose,
to pay the principal (including mandatory sinking fund redemption payments, if any)
scheduled to mature or come due on the Bond on the next succeeding principal payment
date or mandatory sinking fund redemption date, as the case may be.
(b) Reserve Fund. Acting in accordance with the provisions of the Master Ordinance,
specifically, without limitation, Section 7 thereof, it is not necessary for the Bond to be secured by
the Reserve Fund established for the benefit of the owners of Parity Obligations, and therefore the
City may, but shall not be required to, make deposits to the credit of the Reserve Fund with respect
to the Bond.
Section 13. PAYMENT OF BOND. On or before the first scheduled interest payment
date, and on or before each interest payment date and principal payment date thereafter while the
Bond is Outstanding and unpaid, the City shall make available to the Paying Agent/Registrar, out
of the Debt Service Fund (and the Reserve Fund, if necessary) monies sufficient to pay such
interest on and such principal amount of the Bond, as shall become due on such dates, respectively,
at maturity or by redemption prior to maturity. The Paying Agent/Registrar shall destroy the paid
Bond and furnish the City with an appropriate certificate of cancellation or destruction.
Section 14. TAXABLE BOND. It is the intention of the City that the Bond and the WIFIA
Loan Agreement not be obligations described in section 103 of the Internal Revenue Code of 1986
interest on which is excludable from the gross income of the holders and, in that regard, the City
is not required to file a form 8038-G, or any comparable information return relating to tax-exempt
obligations, with the Internal Revenue Service and hereby agrees not to make any such filing.
Section 15. RESERVED.
Section 16. RESERVED.
Section 17. DAMAGED, MUTILATED, LOST, STOLEN, OR DESTROYED BONDS.
(a) Delivery of Substitute Bonds. In the event any Outstanding Bond is damaged, mutilated, lost,
stolen, or destroyed, the Paying Agent/Registrar shall cause to be printed, executed, and delivered,
a new Bond of the same principal amount, maturity, and interest rate, as the damaged, mutilated,
lost, stolen, or destroyed Bond, in replacement for such Bond in the manner hereinafter provided.
9
(b) Application. Application for replacement of a damaged, mutilated, lost, stolen, or
destroyed Bond shall be made to the Paying Agent/Registrar. In every case of loss, theft, or
destruction of a Bond, the applicant for a replacement bond shall furnish to the City and to the
Paying Agent/Registrar such security or indemnity as may be required by them to save each of
them harmless from any loss or damage with respect thereto. Also, in every case of loss, theft, or
destruction of a Bond, the applicant shall furnish to the City and to the Paying Agent/Registrar
evidence to their satisfaction of the loss, theft, or destruction of such Bond, as the case may be. In
every case of damage or mutilation of a Bond, the applicant shall surrender to the Paying
Agent/Registrar for cancellation the Bond so damaged or mutilated.
(c) Payment without Replacement Bond. Notwithstanding the foregoing provisions of this
Section, in the event any such Bond shall have matured, and no default has occurred which is then
continuing in the payment of the principal of, premium, if any, or interest on the Bond, the City
may authorize the payment of the same (without surrender thereof except in the case of a damaged
or mutilated Bond) instead of issuing a replacement Bond, provided security or indemnity is
furnished as above provided in this Section.
(d) Costs of Replacement Bond. Prior to the issuance of any replacement bond, the Paying
Agent/Registrar shall charge the Owner of the Bond with all legal, printing, and other expenses in
connection therewith. Every replacement bond issued pursuant to the provisions of this Section
by virtue of the fact that the Bond is lost, stolen, or destroyed shall constitute a contractual
obligation of the City whether the lost, stolen, or destroyed Bond shall be found at any time, or be
enforceable by anyone, and shall be entitled to all the benefits of this Forty -Seventh Supplement
equally and proportionately with any and all other Bonds duly issued under this Forty -Seventh
Supplement.
(e) Statutory Authority. In accordance with Chapter 1206, this Section of this Forty -
Seventh Supplement shall constitute authority for the issuance of any such replacement bond
without necessity of further action by the City Council of the City or any other body or person,
and the duty of the replacement of such Bond is hereby authorized and imposed upon the Paying
Agent/Registrar, and the Paying Agent/Registrar shall authenticate and deliver such Bond in the
form and manner and with the effect, as provided in Section 5(a) of this Forty -Seventh Supplement
for Bonds issued in exchange for other Bonds.
Section 18. NO RULE 15C2-12 CONTINUING DISCLOSURE UNDERTAKING. The
sale of the Bond is exempt from Rule 15c2-12. Consequently, the City makes no undertaking with
respect to Rule 15c2-12 or with respect to the provision of on -going financial and operating data
under Rule 15c2-12.
Section 19. FORTY-SEVENTH SUPPLEMENT TO CONSTITUTE A CONTRACT;
EQUAL SECURITY. In consideration of the execution of the WIFIA Loan Agreement by the
WIFIA Lender and the acceptance of the Bond by the WIFIA Lender and by those who shall hold
the same from time to time in the future, this Forty -Seventh Supplement shall be deemed to be and
shall constitute a contract between the City and the WIFIA Lender, as well as with any future
Owner, and the pledge made in this Forty -Seventh Supplement by the City and the covenants and
agreements set forth in this Forty -Seventh Supplement to be performed by the City shall be for the
equal and proportionate benefit, security, and protection of all Owners from time to time, without
preference, priority, or distinction as to security or otherwise by reason of time of issuance, sale,
10
or maturity thereof or otherwise for any cause whatsoever, except as expressly provided in or
permitted by this Forty -Seventh Supplement and the Master Ordinance.
Section 20. SEVERABILITY OF INVALID PROVISIONS. That if any one or more of
the covenants, agreements, or provisions herein contained shall be held contrary to any express
provisions of law or contrary to the policy of express law, though not expressly prohibited, or
against public policy, or shall for any reason whatsoever be held invalid, then such covenants,
agreements, or provisions shall be null and void and shall be deemed separable from the remaining
covenants, agreements, or provisions and shall in no way affect the validity of any of the other
provisions hereof or of the Bond issued hereunder.
Section 21. PAYMENT AND PERFORMANCE ON BUSINESS DAYS. Whenever
under the terms of this Forty -Seventh Supplement or the Bond, the performance date of any
provision hereof or thereof, including the payment of principal of or interest on the Bond, shall
occur on a day other than a Business Day, shall be determined in accordance with the WIFIA Loan
Agreement.
Section 22. LIMITATION OF BENEFITS WITH RESPECT TO THE FORTY-
SEVENTH SUPPLEMENT. With the exception of the rights or benefits herein expressly
conferred, nothing expressed or contained herein or implied from the provisions of this Forty -
Seventh Supplement, the WIFIA Loan Agreement or the Bond is intended or should be construed
to confer upon or give to any person other than the City, the Owner, and the Paying
Agent/Registrar, any legal or equitable right, remedy, or claim under or by reason of or in respect
to this Forty -Seventh Supplement or any covenant, condition, stipulation, promise, agreement, or
provision herein contained. This Forty -Seventh Supplement and all of the covenants, conditions,
stipulations, promises, agreements and provisions hereof are intended to be and shall be for and
inure to the sole and exclusive benefit of the City, the Owner, and the Paying Agent/Registrar as
herein and therein provided.
Section 23. FURTHER PROCEDURES. The Mayor, the City Manager, any Assistant
City Manager, the Chief Financial Officer/Director of Financial Management Services of the City,
the City Secretary or any Assistant City Secretary, and all other officers, employees, and agents of
the City, and each of them, shall be and they are hereby expressly authorized, empowered and
directed from time to time and at any time to do and perform all such acts and things and to execute,
acknowledge and deliver in the name and under the corporate seal and on behalf of the City all
such instruments, whether herein mentioned, as may be necessary or desirable in order to carry out
the terms and provisions of this Forty -Seventh Supplement, the WIFIA Loan Agreement and the
Bond, the sale and delivery of the Bond, including, but not limited to, conforming documents to
receive the approval of the Attorney General and to receive ratings from municipal bond rating
agencies. The City Council authorizes the payment of the fee of the Attorney General for the
examination of the proceedings relating to the issuance of the Bond, in the amount determined in
accordance with the provisions of Section 1202.004, Texas Government Code.
Section 24. APPROVAL AND REGISTRATION OF BOND. The City Manager of the
City is hereby authorized to have control of the Bond and all necessary records and proceedings
pertaining to the Bond pending its delivery and its investigation, examination and approval by the
Attorney General, and its registration by the Comptroller. Upon registration of the Bond, the
Comptroller (or a deputy designated in writing to act for the Comptroller) shall sign the
Comptroller's Registration Certificate accompanying the Bond in the manner provided by law, and
the seal of the Comptroller shall be impressed, or placed in facsimile, on each such certificate.
>>
Section 25. SOVEREIGN IMMUNITY WAIVER. To the fullest extent permitted by
applicable law and pursuant to Section 1371.059(c) of the Texas Government Code, as amended,
with respect to its obligations arising under the Bond which evidences amounts due under the
WIFIA Loan Agreement, the City hereby waives sovereign immunity from suit and liability for
the purpose of adjudicating a claim to enforce its duties and obligations under the Bond or for
damages for breach of the Bond.
Section 26. DEFAULT AND REMEDIES. (a) Each Event of Default under the WIFIA
Loan Agreement is hereby declared to be an Event of Default under this Forty -Seventh Supplement
and the Master Ordinance. Upon the occurrence of an Event of Default under the WIFIA Loan
Agreement, the Owner may exercise any and all remedies as set forth below and as set forth in and
in accordance with the WIFIA Loan Agreement.
(b) Events of Default. In addition, each of the following occurrences or events for the
purpose of this Forty -Seventh Supplement is hereby declared to be an Event of Default:
(i) the failure to make payment of the principal of the Bond when the same becomes
due and payable; or
(ii) except as provided in Section 18(c)(iv) of this Forty -Seventh Supplement,
default in the performance or observance of any other covenant, agreement or obligation
of the City, the failure to perform which materially, adversely affects the rights of the
Owners of the Bond, including, but not limited to, their prospect or ability to be repaid in
accordance with this Forty -Seventh Supplement, and the continuation thereof for a period
of sixty (60) days after notice of such default is given by any Owner to the City.
(c) Remedies for Default. In addition to any and all remedies as set forth in the WIFIA
Loan Agreement:
(i) Upon the happening of any Event of Default, then and in every case, any Owner
or an authorized representative thereof, including, but not limited to, a trustee or trustees
therefor, may proceed against the City, or any official, officer or employee of the City in
their official capacity, for the purpose of protecting and enforcing the rights of the Owners
under this Forty -Seventh Supplement or under the WIFIA Loan Agreement, by mandamus
or other suit, action or special proceeding in equity or at law, in any court of competent
jurisdiction, for any relief permitted by law, including the specific performance of any
covenant or agreement contained herein or in the WIFIA Loan Agreement, or thereby to
enjoin any act or thing that may be unlawful or in violation of any right of the Owners
hereunder or under the WIFIA Loan Agreement or any combination of such remedies.
(ii) It is provided that all such proceedings shall be instituted and maintained for
the equal benefit of all Owners of the Bond then Outstanding.
(d) Remedies Not Exclusive.
(i) No remedy herein conferred or reserved is intended to be exclusive of any other
available remedy or remedies, but each and every such remedy shall be cumulative and
shall be in addition to every other remedy given hereunder or under the WIFIA Loan
Agreement or the Bond or now or hereafter existing at law or in equity; provided, however,
12
that notwithstanding any other provision of this Forty -Seventh Supplement, the right to
accelerate the debt evidenced by the Bond shall not be available as a remedy under this
Forty -Seventh Supplement except as otherwise set forth in Section 17(d) of the WIFIA
Loan Agreement.
(ii) The exercise of any remedy herein conferred or reserved shall not be deemed
a waiver of any other available remedy.
(iii) By accepting the delivery of a Bond authorized under this Forty -Seventh
Supplement, the Owner thereof agrees that the certifications required to effect any
covenants or representations contained in this Forty -Seventh Supplement do not and shall
never constitute or give rise to a personal or pecuniary liability or charge against the
officers, employees or members of the City or the City Council.
(iv) None of the members of the City Council, nor any other official or officer,
agent, or employee of the City, shall be charged personally by the Owners with any
liability, or be held personally liable to the Owners under any term or provision of this
Forty -Seventh Supplement, or because of any Event of Default or alleged Event of Default
under this Forty -Seventh Supplement.
Section 27. USE OF BOND PROCEEDS. The proceeds from the sale of the Bond shall
be used in the manner described in a letter of instructions executed by or on behalf of the City,
provided, that proceeds representing accrued interest on the Bond shall be deposited to the credit
of the Debt Service Fund and proceeds representing premium on the Bond shall be used in a
manner consistent with the provisions of Section 1201.042(d), Texas Government Code.
Section 28. PREAMBLE. The preamble to this Forty -Seventh Supplement is hereby
incorporated by reference and is to be considered a part of the operative text of this Forty -Seventh
Supplement.
Section 29. RULES OF CONSTRUCTION. For all purposes of this Forty -Seventh
Supplement, unless the context requires otherwise, all references to designated Sections and other
subdivisions are to the Sections and other subdivisions of this Forty -Seventh Supplement. The
words "herein", "hereof' and "hereunder" and other words of similar import refer to this Forty -
Seventh Supplement as a whole and not to any particular Section or other subdivision. Except
where the context otherwise requires, terms defined in this Forty -Seventh Supplement to impart
the singular number shall be considered to include the plural number and vice versa. References
to any named person means that party and its successors and assigns. References to an officer or
designated position (e.g., City Manager) include any person acting in the capacity of such officer
or designated position, whether on an acting, interim or permanent basis. References to any
constitutional, statutory or regulatory provision means such provision as it exists on the date this
Forty -Seventh Supplement is adopted by the City and any future amendments thereto or successor
provisions thereof. All ordinances and resolutions or parts thereof in conflict herewith are hereby
repealed.
[Execution Page Follows]
13
Section 30. IMMEDIATE EFFECT. This Forty -Seventh Supplement shall be effective
immediately from and after its passage in accordance with the provisions of Section 1201.028,
Texas Government Code, and it is accordingly so ordained.
ADOPTED AND EFFECTIVE January 13, 2026.
Mayor,
City of Fort Worth, Texas
Cit Secretary,
Ci , of Fort Worth, Texas
(SEAL)
APPROVED AS TO FORM AND LEGALITY:
eftP
rtv Attorney, ity Attorney,
City of Fort Worth, Texas
Signature Page - Ordinance Authorizing Issuance of Series 2026
(Maiy's Creek Water Reclamation Facility Project) (WIFIA ID - N23107TX)
Wafer and Sewer System Revenue Bond
14
Exhibit A
That, as used in this Forty -Seventh Supplement, the following terms shall have the
meanings set forth below, unless the text hereof specifically indicates otherwise:
"Administrator" shall have the meaning given said term in the recitals hereto.
"Attorney General" means the Attorney General of the State of Texas.
"Authentication Certificate" shall have the meaning given said term in Section 3(f) of the
Forty -Seventh Supplement.
"Authorized Representative" means the City Manager and the Chief Financial
Officer/Director of Financial Management Services of the City, acting individually but not
collectively.
"Award Certificate" means the certificate to be executed and delivered by an Authorized
Representative pursuant to the Forty -Seventh Supplement in connection with the Bond and the
WIFIA Loan Agreement.
"Bond" means the City of Fort Worth, Texas Water and Sewer System Revenue Bond,
Series 2026 (Mary's Creek Water Reclamation Facility Project) (WIFIA ID — N23107TX),
authorized by the Forty -Seventh Supplement.
"Business Day" means a day other than a Sunday, Saturday, a legal holiday, or a day on
which banking institutions in the City of Fort Worth or the city where the Designated Trust Office
of the Paying Agent/Registrar is located are authorized by law or executive order to close.
"Chapter 9" means Chapter 9, Texas Business and Commerce Code.
"Chapter 1206" means Chapter 1206, Texas Government Code.
"Chapter 1208" means Chapter 1208, Texas Government Code.
"Chapter 1371" means Chapter 1371, Texas Government Code.
"Chapter 1502" means Chapter 1502, Texas Government Code.
"Commercial Paper Notes" means the City of Fort Worth, Texas Water and Sewer System
Commercial Paper Notes, Callable CP Series, to be outstanding at any one time and from time to
time in an aggregate principal amount not to exceed $225,000,000, as authorized by Ordinance
No. 23028-12-2017 and Ordinance No. 25970-02-2023.
"Comptroller" means the Comptroller of Public Accounts of the State of Texas.
"Designated Trust Office of the Paying Agent/Registrar" means the city so designated in
Section 3(a) of the Forty -Seventh Supplement.
4003050.2 048026 DRFT
"Effective Date" means the date on which the Bond is first delivered to the WIFIA Lender.
"Eligible Project Costs" shall have the meaning given said term in the WIFIA Loan
Agreement.
"Event of Default" shall have the meaning given said term in the WIFIA Loan Agreement.
"Fortieth Supplement" means the ordinance authorizing the issuance of the Series 2023
Bonds.
"Forty -First Supplement" means the ordinance authorizing the issuance of the Series
2023A Bonds.
"Forty -Second Supplement" means the ordinance authorizing the issuance of the Series
2024 Bonds.
"Forty -Third Supplement" means the ordinance authorizing the issuance of the Series
2024B Bonds.
"Forty -Fourth Supplement" means the ordinance authorizing the issuance of the Series
2024C Bonds.
"Forty -Fifth Supplement" means the ordinance authorizing the issuance of the Series 2025
Bonds.
"Forty -Sixth Supplement" means the ordinance authorizing the issuance of the Series
2025B Bonds.
"Forty -Seventh Supplement" means the ordinance authorizing the issuance of the Bond.
"Highest Lawful Rate' means the maximum net effective interest rate permitted by law to
be paid on obligations issued or incurred by the City in the exercise of its borrowing powers
(prescribed by Chapter 1204, Texas Government Code, or any successor provisions).
"Master Ordinance" means the "Master Ordinance establishing the City of Fort Worth
Texas Water and Sewer System Revenue Financing Program", passed by the City on December 10,
1991.
"Owner" means, as applicable, the registered owner of the Bond as shown on the Security
Register and the WIFIA Lender acting under the WIFIA Loan Agreement or any successor thereto
as permitted under such agreement.
"Parity Obligations" shall have the meaning given said term in the Master Ordinance.
"Paying Agent/Registrar" means the financial institution specified in Section 3(a) of the
Forty -Seventh Supplement.
4003050.2 048026 DRFT
"Previously Issued Parity Bonds" means the Series 2009 Bonds, the Series 2015 Bonds,
the Series 2015A Bonds, the Series 2015B Bonds, the Series 2016 Bonds, the Series 2017 Bonds,
the Series 2017A Bonds, the Series 2017B Bonds, the Series 2018 Bonds, the Series 2019 Bonds,
the Series 2020 Bonds, the Series 2020A Bonds, the Series 2021 Bonds, the Series 2022 Bonds,
the Series 2023 Bonds, the Series 2023A Bonds, the Series 2024 Bonds, the Series 2024B Bonds,
the Series 2024C Bonds, the Series 2025 Bonds and the Series 2025B Bonds.
"Project" shall have the meaning given said term in the WIFIA Loan Agreement.
"Registration Books" shall have the meaning given said term in the Forty -Seventh
Supplement.
"Rule 15c2-12" means SEC Rule 15c2-12, as amended from time to time.
"Security Register" means the books and records kept and maintained by the Registrar
relating to the registration, transfer, exchange, and payment of the Bond and the interest thereon.
"Series 2009 Bonds" means the City of Fort Worth, Texas Water and Sewer System
Revenue Bonds, Series 2009, authorized by the Seventeenth Supplement.
"Series 2015 Bonds" means the City of Fort Worth, Texas Water and Sewer System
Revenue Bonds, Series 2015, authorized by the Twenty -Fifth Supplement.
"Series 2015A Bonds" means the City of Fort Worth, Texas Water and Sewer System
Revenue Refunding and Improvement Bonds, Series 2015A, authorized by the Twenty -Sixth
Supplement.
"Series 2015B Bonds" means the City of Fort Worth, Texas Water and Sewer System
Revenue Bonds, Series 2015B, authorized by the Twenty -Seventh Supplement.
"Series 2016 Bonds" means the City of Fort Worth, Texas Water and Sewer System
Revenue Refunding and Improvement Bonds, Series 2016, authorized by the Twenty -Eighth
Supplement.
"Series 2017 Bonds" means the City of Fort Worth, Texas Water and Sewer System
Revenue Bonds, Series 2017, authorized by the Twenty -Ninth Supplement.
"Series 2017A Bonds" means the City of Fort Worth, Texas Water and Sewer System
Revenue Refunding and Improvement Bonds, Series 2017A, authorized by the Thirtieth
Supplement.
"Series 2017B Bonds" means the City of Fort Worth, Texas Water and Sewer System
Revenue Bonds, Series 2017B, authorized by the Thirty -First Supplement.
"Series 2018 Bonds" means the City of Fort Worth, Texas Water and Sewer System
Revenue Bonds, Series 2018, authorized by the Thirty -Third Supplement.
"Series 2019 Bonds" means the City of Fort Worth, Texas Water and Sewer System
Revenue Bonds, Series 2019, authorized by the Thirty -Fourth Supplement.
4003050.2 048026 DRFT
"Series 2020 Bonds" means the City of Fort Worth, Texas Water and Sewer System
Revenue Bonds, Series 2020, authorized by the Thirty -Fifth Supplement.
"Series 2020A Bonds" means the City of Fort Worth, Texas Water and Sewer System
Revenue Refunding and Improvement Bonds, Series 2020A, authorized by the Thirty -Sixth
Supplement.
"Series 2021 Bonds" means the City of Fort Worth, Texas Water and Sewer System
Revenue Refunding and Improvement Bonds, Series 2021, authorized by the Thirty -Seventh
Supplement.
"Series 2022 Bonds" means the City of Fort Worth, Texas Water and Sewer System
Revenue Bonds, Series 2022, authorized by the Thirty -Ninth Supplement.
"Series 2023 Bonds" means the City of Fort Worth, Texas Water and Sewer System
Revenue Bonds, Series 2023, authorized by the Fortieth Supplement.
"Series 2023A Bonds" means the City of Fort Worth, Texas Water and Sewer System
Revenue Refunding Bonds, Series 2023A, authorized by the Forty -First Supplement.
"Series 2024 Bonds" means the City of Fort Worth, Texas Water and Sewer System
Revenue Bonds, Series 2024, authorized by the Forty -Second Supplement.
"Series 2024B Bonds" means the City of Fort Worth, Texas Water and Sewer System
Revenue Bonds, Series 2024B CWSRF (Village Creek), authorized by the Forty -Third
Supplement.
"Series 2024C Bonds" means the City of Fort Worth, Texas Water and Sewer System
Revenue Bonds, Series 2024C SWIFT (Eagle Mountain), authorized by the Forty -Fourth
Supplement.
"Series 2025 Bonds" means the City of Fort Worth, Texas Water and Sewer System
Revenue Bonds, Series 2025, authorized by the Forty -Fifth Supplement.
"Series 2025B Bonds" means the City of Fort Worth, Texas Water and Sewer System
Revenue Bonds, Series 2025B SWIFT (Eagle Mountain), authorized by the Forty -Sixth
Supplement.
"Seventeenth Supplement" means the ordinance authorizing the issuance of the Series 2009
Bonds.
"Thirtieth Supplement" means the ordinance authorizing the issuance of the Series 2017A
Bonds.
"Thirty -First Supplement" means the ordinance authorizing the issuance of the Series
2017B Bonds.
4003050.2 048026 DRFT
"Thirty -Second Supplement" means the ordinance authorizing the issuance of City of Fort
Worth, Texas Water and Sewer System Revenue Refunding Bonds, within certain designated
parameters and in one or more Series designations to be determined, as needed to effect the
refunding of Commercial Paper Notes.
"Thirty -Third Supplement" means the ordinance authorizing the issuance of the Series
2018 Bonds.
"Thirty -Fourth Supplement" means the ordinance authorizing the issuance of the Series
2019 Bonds.
"Thirty -Fifth Supplement" means the ordinance authorizing the issuance of the Series 2020
Bonds.
"Thirty -Sixth Supplement" means the ordinance authorizing the issuance of the Series
2020A Bonds.
"Thirty -Seventh Supplement" means the ordinance authorizing the issuance of the Series
2021 Bonds.
"Thirty -Ninth Supplement" means the ordinance authorizing the issuance of the Series
2022 Bonds.
"Twenty -Fifth Supplement" means the ordinance authorizing the issuance of the
Series 2015 Bonds.
"Twenty -Sixth Supplement" means the ordinance authorizing the issuance of the
Series 2015A Bonds.
"Twenty -Seventh Supplement" means the ordinance authorizing the issuance of the Series
2015B Bonds.
"Twenty -Eighth Supplement" means the ordinance authorizing the issuance of the
Series 2016 Bonds.
"Twenty -Ninth Supplement" means the ordinance authorizing the issuance of the
Series 2017 Bonds.
"WIFIA Lender" shall have the meaning given said term in the recitals hereto.
"WIFIA Loan" shall have the meaning given said term in the recitals hereto.
"WIFIA Loan Agreement" means the WIFIA Loan Agreement between the WIFIA Lender
and the City executed and delivered in connection with the Bond.
4003050.2 048026 DRFT
Exhibit B
WIFIA Loan Agreement
4003050.2 048026 DRFT
E4 Sr4,.
4
O'I
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'GRAMN. T Pao°
EPA/HDW Draft 12/8/25
WIFIA CUSIP Number: 3495156E1
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
WIFIA LOAN AGREEMENT
For Up to $347,655,441
With
CITY OF FORT WORTH, TEXAS
For the
MARY'S CREEK WATER RECLAMATION FACILITY
PROJECT
(WIFIA ID — N23107TX)
Dated as of January 23, 2026
3971777.11 048026
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND INTERPRETATION
Section 1. Definitions
Section 2. Interpretation
ARTICLE II THE WIFIA LOAN
Section 3.
Section 4.
Section 5.
Section 6.
Section 7.
Section 8.
Section 9.
Section 10.
WIFIA Loan Amount
Page
2
2
15
17
17
Disbursement Conditions 17
Term 18
Interest Rate 18
Security and Priority; Flow of Funds. 18
Repayments 19
Prepayment 21
Fees and Expenses 22
ARTICLE III CONDITIONS PRECEDENT 23
Section 11. Conditions Precedent 23
ARTICLE IV REPRESENTATIONS AND WARRANTIES 27
Section 12. Representations and Warranties of Borrower 27
Section 13. Representations and Warranties of WIFIA Lender 32
ARTICLE V COVENANTS 32
Section 14. Affirmative Covenants 32
Section 15. Negative Covenants 37
Section 16. Reporting Requirements 39
ARTICLE VI EVENTS OF DEFAULT AND REMEDIES 39
Section 17. Events of Default and Remedies 39
ARTICLE VII MISCELLANEOUS 42
Section 18. Disclaimer of Warranty 42
Section 19. No Personal Recourse 42
Section 20. No Third -Party Rights 42
Section 21. Borrower's Authorized Representative 42
Section 22. WIFIA Lender's Authorized Representative 42
Section 23. Servicer 42
Section 24. Amendments, Waivers and Termination 43
Section 25. Governing Law 43
Section 26. Severability 43
Section 27. Successors and Assigns 43
Section 28. Remedies Not Exclusive 43
Section 29. Delay or Omission Not Waiver 43
Section 30. Counterparts 44
Section 31. Notices 44
Section 32. Indemnification 45
Section 33. Sale of WIFIA Loan 46
Section 34. Effectiveness 46
Section 35. Release of Lien 46
Section 36. Survival 46
Section 37. Integration 46
i
3971777.11 048026
Schedules
SCHEDULE I — WIFIA Loan Specific Terms
SCHEDULE II — Project Details
SCHEDULE III — Borrower Disclosures
SCHEDULE IV — Requisition Procedures
SCHEDULE V — Reporting Requirements
SCHEDULE VI — WIFIA Loan Amortization Schedule
ii
Exhibits
EXHIBIT A — Form of WIFIA Bond
EXHIBIT B — Form of Closing Certificate
EXHIBIT C — Form of Public Benefits Report
EXHIBIT D — Form of Requisition
EXHIBIT E — Form of Certification of Eligible Project Costs
Documentation
EXHIBIT F — Form of Construction Monitoring Report
EXHIBIT G — Form of Certificate of Substantial Completion
EXHIBIT H-1 — Form of Opinion from City Attorney of
Borrower
EXHIBIT H-2 — Form of Opinion from Bond Counsel to
Borrower
3971777.11 048026
WIFIA LOAN AGREEMENT
THIS WIFIA LOAN AGREEMENT (this "Agreement" or the "WIFIA Loan
Agreement"), dated as of the Effective Date, is by and between the Borrower (as defined herein)
and the UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, an agency of the
United States of America ("EPA"), acting by and through the Administrator of the Environmental
Protection Agency (the "Administrator"), with an address at 1200 Pennsylvania Avenue NW,
Washington, DC 20460 (the "WIFIA Lender").
RECITALS:
WHEREAS, the Congress of the United States of America enacted the Water Infrastructure
Finance and Innovation Act, § 5021 et seq. of Public Law 113-121 (as amended and as may be
further amended from time to time, the "Act" or "WIFIA"), which is classified at 33 U.S.C.
§§ 3901-3915;
WHEREAS, the Act authorizes the WIFIA Lender to enter into agreements to provide
financial assistance with one or more eligible entities to make secured loans with appropriate
security features to finance a portion of the eligible costs of projects eligible for assistance;
WHEREAS, the Borrower has requested that the WIFIA Lender make the WIFIA Loan (as
defined herein) in a principal amount not to exceed the Maximum Principal Amount (as defined
herein) to be used to pay a portion of the Eligible Project Costs (as defined herein) pursuant to the
Application (as defined herein);
WHEREAS, pursuant to the WIFIA Term Sheet (as defined herein), the Administrator has
approved WIFIA financial assistance for the Project (as defined herein) to be provided in the form
of the WIFIA Loan, subject to the terms and conditions contained herein;
WHEREAS, based on the Application and the representations, warranties and covenants
set forth herein, the WIFIA Lender proposes to make funding available to the Borrower for a
portion of the costs of the Project through the purchase of the WIFIA Bond (as defined herein),
upon the terms and conditions set forth herein;
WHEREAS, the Borrower agrees to repay any amount due pursuant to this Agreement and
the WIFIA Bond in accordance with the terms and provisions hereof and of the WIFIA Bond; and
WHEREAS, the WIFIA Lender has entered into this Agreement in reliance upon, among
other things, the information and representations of the Borrower set forth in the Application and
the supporting information provided by the Borrower.
NOW, THEREFORE, the premises being as stated above, and for good and valuable
consideration, the receipt and sufficiency of which are acknowledged to be adequate, and intending
to be legally bound hereby, it is hereby mutually agreed by and between the Borrower and the
WIFIA Lender as follows:
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ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1. Definitions. Capitalized terms used in this Agreement shall have the
meanings set forth below in this Section 1 or as otherwise defined in this Agreement, except as
otherwise expressly provided herein. Any term used in this Agreement that is defined by reference
to any other agreement shall continue to have the meaning specified in such agreement, whether
or not such agreement remains in effect.
"Act" has the meaning provided in the recitals hereto.
"Additional Construction Contract" means, with respect to the Project, each
Construction Contract entered into after the Effective Date.
"Additional Debt Test" has the meaning ascribed to such term in Part D of Schedule I
(WIFIA Loan Specific Terms).
"Additional Obligations" means Additional Parity Obligations and Additional
Subordinated Debt.
"Additional Parity Obligations" means any Parity Obligations permitted under
Section 15(a) (Indebtedness) and under the Master Ordinance, which Parity Obligations are issued
or incurred after the Effective Date.
"Additional Subordinated Debt" means any Subordinated Debt permitted under Section
15(a) (Indebtedness) and under the Master Ordinance, which Subordinated Debt is issued or
incurred after the Effective Date.
"Administrator" has the meaning provided in the preamble hereto.
"Agreement" has the meaning provided in the preamble hereto.
"Application" means the Borrower's application for WIFIA financial assistance received
by the WIFIA Lender on the Application Receipt Date.
"Application Receipt Date" has the meaning ascribed to such term in Part A of Schedule
I (WIFIA Loan Specific Terms).
"Bankruptcy Related Event" means, with respect to the Borrower, (a) an involuntary
proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any of its debts, or of a substantial part
of the assets thereof, under any Insolvency Laws, or (ii) the appointment of a receiver, trustee,
liquidator, custodian, sequestrator, conservator or similar official for the Borrower or for a
substantial part of the assets thereof and, in any case referred to in the foregoing subclauses (i) and
(ii), such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree
approving or ordering any of the foregoing shall be entered; (b) the Borrower shall (i) apply for or
consent to the appointment of a receiver, trustee, liquidator, custodian, sequestrator, conservator
or similar official therefor or for a substantial part of the assets thereof, (ii) generally not be paying
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its debts as they become due unless such debts are the subject of a bona fide dispute, or become
unable to pay its debts generally as they become due, (iii) fail to make a payment of WIFIA Debt
Service in accordance with the provisions of Section 8 (Repayments) and such failure is not cured
within thirty (30) days following notification by the WIFIA Lender of failure to make such
payment, (iv) make a general assignment for the benefit of creditors, (v) consent to the institution
of, or fail to contest in a timely and appropriate manner, any proceeding or petition with respect to
it described in clause (a) of this definition, (vi) commence a voluntary proceeding under any
Insolvency Law, or file a voluntary petition seeking liquidation, reorganization, an arrangement
with creditors or an order for relief, in each case under any Insolvency Law, (vii) file an answer
admitting the material allegations of a petition filed against it in any proceeding referred to in the
foregoing subclauses (i) through (v), inclusive, of this clause (b), or (viii) take any action for the
purpose of effecting any of the foregoing, including seeking approval or legislative enactment by
any Governmental Authority to authorize commencement of a voluntary proceeding under any
Insolvency Law; (c) (i) any Person shall commence a process pursuant to which all or a substantial
part of the Pledged Collateral may be sold or otherwise disposed of in a public or private sale or
disposition pursuant to a foreclosure of the Liens thereon securing the Parity Obligations, or
(ii) any Person shall commence a process pursuant to which all or a substantial part of the Pledged
Collateral may be sold or otherwise disposed of pursuant to a sale or disposition of such Pledged
Collateral in lieu of foreclosure; or (d) any receiver, trustee, liquidator, custodian, sequestrator,
conservator or similar official shall transfer, pursuant to directions issued by the holders of the
Obligations, funds on deposit in any of the System Accounts upon the occurrence and during the
continuation of an Event of Default under this Agreement or an event of default under any of the
Ordinance Documents or the Other Financing Documents for application to the prepayment or
repayment of any principal amount of the Parity Obligations other than in accordance with the
provisions of the Master Ordinance.
"Base Case Financial Model" means the financial model or plan, prepared by the
Borrower and delivered to the WIFIA Lender as part of the Application, forecasting the capital
costs of the System (including the Project) and the estimated debt service coverage, rates, revenues,
operating expenses and major maintenance requirements of the System (as may be applicable) for
the Forecast Period and based upon assumptions and methodology provided by the Borrower and
acceptable to the WIFIA Lender as of the Effective Date, which model or plan shall have been
provided to the WIFIA Lender as a fully functional Microsoft Excel -based financial model or such
other format agreed with the WIFIA Lender.
"Borrower" has the meaning ascribed to such term in Part A of Schedule I (WIFIA Loan
Specific Terms).
"Borrower Fiscal Year" means (a) as of the Effective Date, the Initial Borrower Fiscal
Year or (b) such other fiscal year as the Borrower may hereafter adopt after giving thirty (30) days'
prior written notice to the WIFIA Lender in accordance with Part E of Schedule V (Reporting
Requirements).
"Borrower's Authorized Representative" means any Person who shall be designated as
such pursuant to Section 21 (Borrower's Authorized Representative).
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"Business Day" means any day other than a Saturday, a Sunday or a day on which offices
of the Federal Government or the State are authorized to be closed or on which commercial banks
are authorized or required by law, regulation or executive order to be closed in New York, New
York, the Paying Agent/Registrar Location or the Project Location.
"Capitalized Interest Date" has, if applicable, the meaning ascribed to such term in Part
C of Schedule I (WIFIA Loan Specific Terms), or if designated as "Not Applicable" in Schedule
I, means capitalized interest dates shall not be applicable with respect to the WIFIA Loan
hereunder.
"Capitalized Interest Period" has, if applicable, the meaning ascribed to such term in
Part C of Schedule I (WIFIA Loan Specific Terms), or if designated as "Not Applicable" in
Schedule I, means capitalized interest shall not be applicable with respect to the WIFIA Loan
hereunder.
"Closing Certificate" has the meaning provided in Section 11(a) (Conditions Precedent
to Effectiveness).
"Construction Contract" means, with respect to the Project, any prime contract entered
into by the Borrower that involves any construction activity (such as demolition, site preparation,
civil works construction, installation, remediation, refurbishment, rehabilitation, or removal and
replacement services) for the Project. For the avoidance of doubt, "Construction Contract" shall
include each Existing Construction Contract and, upon the effectiveness thereof, each Additional
Construction Contract.
"Construction Monitoring Report" means a report on the status of the Project,
substantially in the form of Exhibit F (Form of Construction Monitoring Report), unless otherwise
agreed to be in a different form by the WIFIA Lender.
"Construction Period Servicing Fee" has the meaning ascribed to such term in Part F
of Schedule I (WIFIA Loan Specific Terms).
"Construction Schedule" means (a) the initial schedule or schedules on which the
construction timetables for the Project are set forth, attached hereto as Part B of Schedule II
(Project Details), and (b) any updates thereto included in the Construction Monitoring Report most
recently submitted to the WIFIA Lender in accordance with Part C of Schedule V (Reporting
Requirements).
"CPP" means the Consumer Price Index for All Urban Consumers (CPI-U) for the U.S.
City Average for All Items, 1982-84=100 (not seasonally adjusted) or its successor, published by
the Bureau of Labor Statistics and located at https://www.b1s.gov/news.release/cpi.t01.htm.
"Debt Service Fund" has the meaning ascribed to such term in Part D of Schedule I
(WIFIA Loan Specific Terms).
"Debt Service Payment Commencement Date" means the earlier to occur of (a) the first
Payment Date immediately following the later of (i) the first Disbursement or (ii) if there is a
Capitalized Interest Period, the final Capitalized Interest Date, in each case as set forth in the
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WIFIA Loan Amortization Schedule; or (b) the Payment Date falling closest to, but not later than,
the fifth anniversary of the Substantial Completion Date.
"Default" means any event or condition that, with the giving of any notice, the passage of
time, or both, would be an Event of Default.
"Default Rate" has the meaning ascribed to such term in Part C of Schedule I (WIFIA
Loan Specific Terms).
"Development Default" means (a) the Borrower abandons work or fails, in the reasonable
judgment of the WIFIA Lender, to diligently prosecute the work related to the Project or (b) the
Borrower fails to achieve Substantial Completion of the Project by the Development Default Date,
unless such failure to achieve Substantial Completion shall occur by reason of an Uncontrollable
Force that is not due to the fault or gross negligence of the Borrower (and which the Borrower
could not reasonably have avoided or mitigated), in which case the Development Default Date
shall be extended by the number of days equal to the duration of such Uncontrollable Force.
"Development Default Date" has the meaning ascribed to such term in Part B of
Schedule I (WIFIA Loan Specific Terms).
"Disbursement" means a disbursement of WIFIA Loan proceeds, subject to and in
accordance with this Agreement.
"Dollars" and "$" means the lawful currency of the U.S.
"Effective Date" means the date of this Agreement, as specified in Part A of Schedule I
(WIFIA Loan Specific Terms).
"Eligible Project Costs" means amounts in the Project Budget approved by the WIFIA
Lender, which are paid by or for the account of the Borrower in connection with the Project
(including, as applicable, Project expenditures incurred prior to the receipt of WIFIA credit
assistance), which shall arise from the following:
(a) development -phase activities, including planning, feasibility analysis
(including any related analysis necessary to carry out an eligible project), revenue
forecasting, environmental review, permitting, preliminary engineering and design work
and other preconstruction activities;
(b) construction, reconstruction, rehabilitation, and replacement activities;
(c) the acquisition of real property or an interest in real property (including
water rights, land relating to the Project and improvements to land), environmental
mitigation (including acquisitions pursuant to 33 U.S.C. § 3905(8)), construction
contingencies, and acquisition of equipment; or
(d) capitalized interest (with respect to Obligations other than the WIFIA Loan)
necessary to meet market requirements, reasonably required reserve funds, capital
issuance expenses, and other carrying costs during construction;
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provided, that Eligible Project Costs must be consistent with all other applicable federal law,
including the Act.
"Eligible Project Costs Documentation" means all supporting documentation with
respect to Eligible Project Costs, including copies of invoices and records evidencing incurred or
previously paid Eligible Project Costs, which documentation should contain sufficient detail
satisfactory to the WIFIA Lender to evidence the incurrence or payment of such Eligible Project
Costs and, with respect to construction progress payments for Eligible Project Costs, demonstrate
that such progress payments are commensurate with the cost of the work that has been completed.
"EMMA" means the Electronic Municipal Market Access system maintained by the
Municipal Securities Rulemaking Board, and its successors.
"EPA" has the meaning provided in the preamble hereto.
"Event of Default" has the meaning provided in Section 17(a) (Events of Default and
Remedies).
"Event of Loss" means any event or series of events that causes any portion of the System
to be damaged, destroyed or rendered unfit for normal use for any reason whatsoever, including
through a casualty, a failure of title, or any loss of such property through eminent domain.
"Existing Construction Contract" means each Construction Contract in effect as of the
Effective Date as set forth in Part C of Schedule II (Project Details).
"Existing Indebtedness" means indebtedness of the Borrower that has been issued or
incurred prior to the Effective Date, as listed and described in Part A of Schedule III (Borrower
Disclosures).
"Federal Fiscal Year" means the fiscal year of the Federal Government, which is the
twelve (12) month period that ends on September 30 of the specified calendar year and begins on
October 1 of the preceding calendar year.
"Federal Government" means the U.S. and its departments and agencies.
"FEIN" means a Federal Employer Identification Number.
"Final Disbursement Date" means the earliest of (a) the date on which the WIFIA Loan
has been disbursed in full; (b) the last anticipated date of disbursement set forth in the then -current
WIFIA Loan Disbursement Schedule; (c) the date as of which the Borrower has certified to the
WIFIA Lender that it will not request any further disbursements under the WIFIA Loan; (d) the
date on which the WIFIA Lender terminates its obligations relating to disbursements of any
undisbursed amounts of the WIFIA Loan in accordance with Section 17 (Events of Default and
Remedies); and (e) the date that is one (1) year after the Substantial Completion Date.
"Final Maturity Date" has the meaning ascribed to such term in Part C of Schedule I
(WIFIA Loan Specific Terms).
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"Financial Statements" has the meaning provided in Section 12(q) (Financial Statements).
"Flow of Funds" has the meaning ascribed to such term in Part D of Schedule I (WIFIA
Loan Specific Terms).
"Forecast Period" means, as of any date, the time period from and including the then -
current Borrower Fiscal Year until the later ending date of either (a) the five (5) immediately
succeeding Borrower Fiscal Years or (b) the end of the Borrower Fiscal Year in which the
Borrower's then -currently effective capital improvement plan for the System concludes.
"GAAP" means generally accepted accounting principles for U.S. state and local
governments, as established by the Government Accounting Standards Board (or any successor
entity with responsibility for establishing accounting rules for governmental entities), in effect
from time to time in the U.S.
"Governmental Approvals" means all authorizations, consents, approvals, waivers,
exceptions, variances, filings, registrations, permits, orders, licenses, exemptions and declarations
of or with any Governmental Authority.
"Governmental Authority" means any federal, state, provincial, county, city, town,
village, municipal or other government or governmental department, commission, council, court,
board, bureau, agency, authority or instrumentality (whether executive, legislative, judicial,
administrative or regulatory), of or within the U.S. or its territories or possessions, including the
State and its counties and municipalities, and their respective courts, agencies, instrumentalities
and regulatory bodies, or any entity that acts "on behalf of' any of the foregoing, whether as an
agency or authority of such body.
"Gross Revenues" has the meaning ascribed to such term in Part A of Schedule I (WIFIA
Loan Specific Terms).
"Holders of Parity Obligations" means (i) with respect to the WIFIA Bond, the WIFIA
Lender (and any subsequent holder of the WIFIA Bond) and (ii) with respect to any other Parity
Obligations, the registered owner of such Parity Obligations.
"Indemnitee" has the meaning provided in Section 32 (Indemnification).
"Initial Borrower Fiscal Year" has the meaning ascribed to such term in Part A of
Schedule I (WIFIA Loan Specific Terms).
"Initial Construction Period Servicing Fee" has the meaning ascribed to such term in
Part F of Schedule I (WIFIA Loan Specific Terms).
"Insolvency Laws" means the U.S. Bankruptcy Code, 11 U.S.C. § 101 et seq., as from
time to time amended and in effect, and any state bankruptcy, insolvency, receivership,
conservatorship or similar law now or hereafter in effect.
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"Interest Only Period" has, if applicable, the meaning ascribed to such term in Part C of
Schedule I (WIFIA Loan Specific Terms), or if designated as "Not Applicable" in Schedule I,
means no interest only period shall be applicable with respect to the WIFIA Loan hereunder.
"Interest Payment Date" has the meaning ascribed to such term in Part C of Schedule I
(WIFIA Loan Specific Terms).
"Interim Financing" means interim bond anticipation notes, commercial paper or other
short-term temporary financing, in each case with a maturity not later than five (5) years following
the issuance or incurrence thereof, the proceeds of which are applied to pay Eligible Project Costs.
"Investment Grade Rating" means a rating of `BBB-', `Baa3', `bbb-', or `BBB (low)',
or higher, from a Nationally Recognized Rating Agency.
"Legal Entity" has the meaning ascribed to such term in Part A of Schedule I (WIFIA
Loan Specific Terms).
"Lien" means any mortgage, pledge, hypothecation, assignment, mandatory deposit
arrangement, encumbrance, attachment, lien (statutory or other), charge or other security interest,
or preference, priority or other security agreement or preferential arrangement of any kind or nature
whatsoever, including any sale -leaseback arrangement, any conditional sale or other title retention
agreement, any financing lease having substantially the same effect as any of the foregoing, and
the filing of any financing statement or similar instrument under the UCC or any other applicable
law.
"Loss Proceeds" means any proceeds of builders' risk or casualty insurance (other than
any proceeds from any policy of business interruption insurance insuring against loss of revenues
upon the occurrence of certain casualties or events covered by such policy of insurance) or
proceeds of eminent domain proceedings resulting from any Event of Loss.
"Master Ordinance" has the meaning ascribed to such term in Part E of Schedule I
(WIFIA Loan Specific Terms).
"Material Adverse Effect" means a material adverse effect on (a) the System, the Project
or the Gross Revenues, (b) the business, operations, properties, condition (financial or otherwise)
or prospects of the Borrower relating to the System, (c) the legality, validity or enforceability of
any material provision of any Ordinance Document or WIFIA Loan Document, (d) the ability of
the Borrower to enter into, perform or comply with any of its material obligations under any
Ordinance Document or WIFIA Loan Document, (e) the validity, enforceability or priority of the
Liens provided under the Master Ordinance or any Ordinance Document on the Pledged Collateral
or (f) the WIFIA Lender's rights or remedies available under any WIFIA Loan Document.
"Maximum Principal Amount" has the meaning ascribed to such term in Part C of
Schedule I (WIFIA Loan Specific Terms).
"Nationally Recognized Rating Agency" means any nationally recognized statistical
rating organization registered with, and identified as such by, the Securities and Exchange
Commission, pursuant to 15 U.S.C. § 78o-7.
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"NEPA" means the National Environmental Policy Act of 1969, as amended, and any
successor statute of similar import, and regulations thereunder, in each case as in effect from time
to time.
"NEPA Determination" has the meaning ascribed to such term in Part B of Schedule I
(WIFIA Loan Specific Terms).
"Net Revenues" means, for any Borrower Fiscal Year, the Gross Revenues for such
Borrower Fiscal Year, less Operating Expenses for such Borrower Fiscal Year.
"Obligations" means debt of the Borrower that is secured by a pledge and lien on all or a
portion of the Gross Revenues or the Pledged Revenues, including the WIFIA Loan, all other
Parity Obligations and the Subordinated Debt.
"Operating Expenses" has the meaning ascribed to such term in Annex A (Rate Covenant)
to Schedule I (WIFIA Loan Specific Terms).
"Operating Period Servicing Fee" has the meaning ascribed to such term in Part F of
Schedule I (WIFIA Loan Specific Terms).
"Ordinance Documents" means the Master Ordinance, each Supplemental Ordinance
(including the WIFIA Supplemental Ordinance), and each other agreement, instrument and
document executed and delivered pursuant to or in connection with any of the foregoing.
"Organizational Documents" means (a) the constitutional and statutory provisions that
are the basis for the existence and authority of the Borrower, including any enabling statutes,
ordinances or public charters and any other organic laws establishing the Borrower and (b) the
resolutions, bylaws, or other organizational documents (including any amendments, modifications
or supplements thereto) of or adopted by the Borrower by which the Borrower, its powers,
operations or procedures or its securities, bonds, notes or other obligations are governed or from
which such powers are derived.
"Other Financing Documents" means any agreement, instrument, or document
(excluding the Ordinance Documents and the WIFIA Loan Documents) entered into between the
Borrower and a holder of Obligations (or a trustee or similar Person on behalf of any such holder)
providing for the issuance of Obligations or otherwise governing any terms or conditions relating
to Obligations.
"Outstanding" means (a) with respect to Parity Obligations other than the WIFIA Loan,
Obligations that have not been cancelled or legally defeased or discharged within the meaning of
the Master Ordinance, (b) with respect to Subordinated Debt, Subordinated Debt that has not been
cancelled or legally defeased or discharged within the meaning of the instrument evidencing or
authorizing such Subordinated Debt, and (c) with respect to the WIFIA Loan, the (i) entire amount
available to be drawn under this Agreement (including amounts drawn, amounts that remain
available to be drawn and, if applicable, any capitalized interest added or projected to be added to
the principal amount of the WIFIA Loan in accordance with the terms hereof), less (ii) any amount
that has been irrevocably determined will not be drawn under this Agreement, less (iii) the
aggregate principal amount of the WIFIA Loan Balance that has been repaid or prepaid.
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3971777.11 048026
"Parity Obligations" means all Obligations which may be issued or assumed in
accordance with the terms of the Master Ordinance and a Supplemental Ordinance and secured by
a first Lien on and pledge of the Pledged Revenues, including the WIFIA Bond.
"Patriot Act" means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended, and all regulations
promulgated thereunder.
"Paying Agent/Registrar" has he meaning ascribed to such term in Part A of Schedule I
(WIFIA Loan Specific Terms).
"Paying Agent/Registrar Agreement" has the meaning ascribed to such term in Part A
of Schedule I (WIFIA Loan Specific Terms).
"Paying Agent/Registrar Location" has the meaning ascribed to such term in Part A of
Schedule I (WIFIA Loan Specific Terms).
"Payment Date" means each Interest Payment Date and each Principal Payment Date.
"Payment Default" has the meaning provided in Section 17(a)(i) (Payment Default).
"Permitted Debt" means:
(a) Existing Indebtedness;
(b) the WIFIA Loan;
(c) Additional Parity Obligations that satisfy the requirements of Section 15(a)
(Indebtedness) and the Master Ordinance;
(d) Additional Subordinated Debt that satisfies the requirements of Section
15(a) (Indebtedness) and the Master Ordinance; and
(e) indebtedness incurred in respect of hedging transactions permitted under
the Master Ordinance and the WIFIA Loan Documents.
"Permitted Investments" has the meaning ascribed to the term "Eligible Investments" in
the Master Ordinance.
"Permitted Liens" means:
(a) Liens imposed pursuant to the WIFIA Loan Documents;
(b) Liens imposed pursuant to the Ordinance Documents or other Related
Documents in respect of Permitted Debt;
(c) Liens imposed by law, including Liens for taxes that are not yet due or are
being contested in compliance with Section 14(j) (Material Obligations);
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3971777.11 048026
(d) carriers', warehousemen' s, mechanics', materialmen' s, repairmen' s and
other like Liens imposed by law, arising in the ordinary course of business and securing
obligations that are not overdue by more than thirty (30) days or are being contested in
compliance with Section 14(j) (Material Obligations);
(e) pledges and deposits made in the ordinary course of business in compliance
with workers' compensation, unemployment insurance, and other social security laws or
regulations;
(f) deposits to secure the performance of trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business;
(g) judgment Liens in respect of judgments that do not constitute an Event of
Default under Section 17(a)(viii) (Material Adverse Judgment); and
(h) easements, zoning restrictions, rights -of -way and similar encumbrances on
real property imposed by law or arising in the ordinary course of business that, in any
case, do not secure any monetary obligations and do not materially detract from the value
of the affected property or interfere with the ordinary conduct of business of the Borrower.
"Person" means and includes an individual, a general or limited partnership, a joint venture,
a corporation, a limited liability company, a trust, an unincorporated organization and any
Governmental Authority, including in each case such Person's successors and permitted assigns.
"Pledged Collateral" has the meaning ascribed to such term in Part D of Schedule I
(WIFIA Loan Specific Terms).
"Pledged Revenues" has the meaning ascribed to such term in Part D of Schedule I
(WIFIA Loan Specific Terms).
"Principal Payment Date" has the meaning ascribed to such term in Part C of Schedule
I (WIFIA Loan Specific Terms).
"Project" has the meaning ascribed to such term in Part B of Schedule I (WIFIA Loan
Specific Terms).
"Project Budget" means the budget for the Project attached to this Agreement as Part A
of Schedule II (Project Details) showing a summary of Total Project Costs with a breakdown of
all Eligible Project Costs and the estimated sources and uses of funds for the Project.
"Project Location" has the meaning ascribed to such term in Part B of Schedule I (WIFIA
Loan Specific Terms).
"Projected Substantial Completion Date" has the meaning ascribed to such term in Part
B of Schedule I (WIFIA Loan Specific Terms).
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"Public Benefits Report" means the report in the form attached hereto as Exhibit C (Form
of Public Benefits Report).
"Rate Covenant" has the meaning ascribed to such term in Part D of Schedule I (WIFIA
Loan Specific Terms).
"Related Documents" means the WIFIA Loan Documents, the Ordinance Documents and
the Other Financing Documents.
"Requisition" means the request for Disbursement in the form attached hereto as Exhibit
D (Form of Requisition).
"SAM" means the federal System for Award Management (www.SAM.gov) (or any
successor system or registry).
"Sanctions Laws" means collectively, any applicable anti -drug trafficking, anti -terrorism,
anti -money laundering, anti -bribery, or anti -corruption laws or regulations, as applicable,
including those contained in the Bank Secrecy Act of 1970 (as amended) and the U.S. Patriot Act.
"Servicer" means such entity or entities as the WIFIA Lender shall designate from time to
time to perform, or assist the WIFIA Lender in performing, certain duties hereunder.
"Servicing Fee" means the Servicing Set -Up Fee and any Construction Period Servicing
Fee or Operating Period Servicing Fee.
"Servicing Set -Up Fee" has the meaning ascribed to such term in Part F of Schedule I
(WIFIA Loan Specific Terms).
"State" has the meaning ascribed to such term in Part A of Schedule I (WIFIA Loan
Specific Terms).
"State Attorney General" means the individual who is duly serving as the attorney general
of the State as of the Effective Date.
"Subordinated Debt" means any Obligation that is fully subordinated to the Parity
Obligations, including the WIFIA Bond, in priority of payment (as to both principal and interest),
voting and priority of security interest in the Pledged Revenues, including with respect to payment
from revenues and reserves and payment upon default or acceleration of any such Obligations.
"Substantial Completion" means, with respect to the Project, the stage at which the
Project is able to perform the functions for which the Project is designed.
"Substantial Completion Date" means the date on which the Borrower certifies to the
WIFIA Lender, with evidence satisfactory to the WIFIA Lender and notice to the WIFIA Lender
in accordance with Part E of Schedule V (Reporting Requirements), that Substantial Completion
has occurred.
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"Supplemental Ordinance" means an ordinance, including the WIFIA Supplemental
Ordinance, supplemental to, and authorized and executed pursuant to the terms of, the Master
Ordinance as may be supplemented or amended from time to time as authorized by the Borrower
and such Supplemental Ordinance.
"System" has the meaning ascribed to such term in Part A of Schedule I (WIFIA Loan
Specific Terms).
"System Accounts" has the meaning ascribed to such term in Part D of Schedule I (WIFIA
Loan Specific Terms).
"System Fund" has the meaning ascribed to such term in Part D of Schedule I (WIFIA
Loan Specific Terms).
"Technical and Rate Consultant" means a single individual or firm, or a combination of
one or more individuals or firms, not related to the Borrower and considered independent with
respect to the Borrower (i.e. not an employee of the Borrower or any affiliate of the Borrower)
authorized to do business in and qualified to practice in the areas required to provide the services
required of the Technical and Rate Consultant, that together have expertise in the technical
requirements for operation and maintenance of systems similar in size and scope to the System
and delivering the services provided by the System, and establishing rates and charges for
governmental water or wastewater systems similar in size and scope to the System, selected by the
Borrower and reasonably acceptable to the WIFIA Lender.
"Total Project Costs" means (a) the costs paid or incurred or to be paid or incurred by the
Borrower in connection with or incidental to the acquisition, design, construction and equipping
of the Project, including legal, administrative, engineering, planning, design, insurance and
financing (including costs of issuance); (b) amounts, if any, required by the Ordinance Documents
or the WIFIA Loan Documents to be paid into any fund or account upon the incurrence of the
WIFIA Loan or any other Obligations, in each case in respect of the Project; (c) payments when
due (whether at the maturity of principal, the due date of interest, or upon optional or mandatory
prepayment) in respect of any indebtedness of the Borrower (other than the WIFIA Loan), in each
case in connection with the acquisition, design, construction and equipping of the Project; and (d)
costs of equipment and supplies and initial working capital and reserves required by the Borrower
for the commencement of operation of the Project, including general administrative expenses and
overhead of the Borrower.
"Uncontrollable Force" means any cause beyond the control of the Borrower, including:
(a) a hurricane, tornado, flood or similar occurrence, landslide, earthquake, fire or other casualty,
strike or labor disturbance, freight embargo, act of a public enemy, explosion, war, blockade,
terrorist act, insurrection, riot, general arrest or restraint of government and people, civil
disturbance or similar occurrence, sabotage or pandemic (provided, that the Borrower shall not be
required to settle any strike or labor disturbance in which it may be involved) or (b) the order or
judgment of any federal, State or local court, administrative agency or governmental officer or
body, if it is not also the result of willful or negligent action or a lack of reasonable diligence of
the Borrower and the Borrower does not control the administrative agency or governmental officer
or body; provided, that the diligent contest in good faith of any such order or judgment shall not
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constitute or be construed as a willful or negligent action or a lack of reasonable diligence of the
Borrower.
"Uniform Commercial Code" or "UCC" means the Uniform Commercial Code, as in
effect from time to time in the State.
"Unique Entity Identifier" or "UEI" means, with respect to any Person, the unique entity
identifier issued by the Federal Government through SAM.gov for such Person.
"Updated Financial Model/Plan" means (a) an updated Base Case Financial Model or (b)
a financial plan in a format agreed with the WIFIA Lender, in each case reflecting the then -current
and projected conditions for the Forecast Period, in accordance with Part A of Schedule V
(Reporting Requirements).
"U.S." means the United States of America.
"WIFIA" has the meaning provided in the recitals hereto.
"WIFIA Bond" has, if applicable, the meaning ascribed to such term in Part E of
Schedule I (WIFIA Loan Specific Terms), or if designated as "Not Applicable" in Schedule I,
means a bond as evidence of the Borrower's obligation shall not be applicable with respect to the
WIFIA Loan hereunder.
"WIFIA CUSIP Number" has the meaning ascribed to such term in Part A of Schedule
I (WIFIA Loan Specific Terms).
"WIFIA Debt Service" means with respect to any Payment Date occurring on or after the
Debt Service Payment Commencement Date, the principal portion of the WIFIA Loan Balance
and any interest payable thereon (including interest accruing after the date of any filing by the
Borrower of any petition in bankruptcy or the commencement of any bankruptcy, insolvency or
similar proceeding with respect to the Borrower), in each case, (a) as set forth on the WIFIA Loan
Amortization Schedule and (b) due and payable on such Payment Date in accordance with the
provisions of Section 8(a) (Payment of WIFIA Debt Service).
"WIFIA Debt Service Account" has, if applicable, the meaning ascribed to such term in
Part D of Schedule I (WIFIA Loan Specific Terms), or if designated as "Not Applicable" in
Schedule I, means a separate debt service account designated for the WIFIA Lender shall not be
applicable with respect to the WIFIA Loan hereunder.
"WIFIA Debt Service Reserve Account" has, if applicable, the meaning ascribed to such
term in Part D of Schedule I (WIFIA Loan Specific Terms), or if designated as "Not Applicable"
in Schedule I, means a separate debt service reserve account designated for the WIFIA Lender
shall not be applicable with respect to the WIFIA Loan hereunder.
"WIFIA Debt Service Reserve Requirement" has, if applicable, the meaning ascribed to
such term in Part D of Schedule I (WIFIA Loan Specific Terms), or if designated as "Not
Applicable" in Schedule I, means a separate debt service reserve requirement shall not be
applicable with respect to the WIFIA Loan hereunder.
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"WIFIA Interest Rate" has the meaning ascribed to such term in Part C of Schedule I
(WIFIA Loan Specific Term).
"WIFIA Lender" has the meaning provided in the preamble hereto.
"WIFIA Lender's Authorized Representative" means the Administrator and any other
Person who shall be designated as such pursuant to Section 22 (WIFIA Lender's Authorized
Representative).
"WIFIA Loan" means the secured loan made by the WIFIA Lender to the Borrower on
the terms and conditions set forth herein, pursuant to the Act, in a principal amount not to exceed
the Maximum Principal Amount, to be used in respect of Eligible Project Costs.
"WIFIA Loan Amortization Schedule" means the loan amortization schedule reflected
in Schedule VI (WIFIA Loan Amortization Schedule), as amended from time to time in accordance
with Section 8(c) (Adjustments to WIFIA Loan Amortization Schedule).
"WIFIA Loan Balance" means (a) the aggregate principal amount of the WIFIA Loan
disbursed by the WIFIA Lender to the Borrower hereunder, plus (b) if applicable, capitalized
interest added to the principal balance of the WIFIA Loan pursuant to Section 8(a)(iii) (Payments
of WIFIA Debt Service), minus (c) the aggregate principal amount of the WIFIA Loan repaid or
prepaid by the Borrower, as reflected from time to time in the WIFIA Loan Amortization Schedule
in accordance with Section 8(c) (Adjustments to WIFIA Loan Amortization Schedule).
"WIFIA Loan Disbursement Schedule" means the disbursement schedule set forth in
Schedule VI (WIFIA Loan Amortization Schedule), reflecting the anticipated disbursement of
proceeds of the WIFIA Loan, as such schedule may be amended from time to time pursuant to
Section 4(b) (Disbursement Conditions).
"WIFIA Loan Documents" means this Agreement, the WIFIA Bond, the Master
Ordinance and the WIFIA Supplemental Ordinance.
"WIFIA Supplemental Ordinance" has the meaning ascribed to such term in Part E of
Schedule I (WIFIA Loan Specific Terms).
"WIFIA Term Sheet" has the meaning ascribed to such term in Part E of Schedule I
(WIFIA Loan Specific Terms).
Section 2. Interpretation. The rules of interpretation set forth below in this Section 2
shall apply to this Agreement, except as otherwise expressly provided herein.
(a) Unless the context shall otherwise require, the words "hereto," "herein,"
"hereof" and other words of similar import refer to this Agreement as a whole.
(b) Words of any gender shall be deemed and construed to include correlative
words of any other gender.
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(c) Words importing the singular number shall include the plural number and
vice versa unless the context shall otherwise require.
(d) The words "include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation."
(e) Whenever the Borrower's knowledge is implicated in this Agreement or the
phrase "to the Borrower's knowledge" or a similar phrase is used in this Agreement, the
Borrower's knowledge or such phrase(s) shall be interpreted to mean to the best of the Borrower's
knowledge after reasonable and diligent inquiry.
(f) Unless the context shall otherwise require, references to preambles, recitals,
sections, subsections, clauses, schedules, exhibits, appendices and provisions are to the applicable
preambles, recitals, sections, subsections, clauses, schedules, exhibits, appendices and provisions
of this Agreement.
(g) The recitals, schedules and exhibits to this Agreement, and the appendices
and schedules to such exhibits, are hereby incorporated by reference and made an integral part of
this Agreement.
(h) The headings or titles of this Agreement and its sections, schedules or
exhibits, as well as any table of contents, are for convenience of reference only and shall not define
or limit its provisions.
(i) Unless the context shall otherwise require, all references to any resolution,
contract, agreement, lease or other document shall be deemed to include any amendments or
supplements to, or modifications or restatements or replacements of, such documents that are
approved from time to time in accordance with the terms thereof and hereof.
(j) Every request, order, demand, application, appointment, notice, statement,
certificate, consent or similar communication or action hereunder by any party shall, unless
otherwise specifically provided, be delivered in writing in accordance with Section 31 (Notices)
and signed by a duly authorized representative of such party.
(k) References to "disbursements of WIFIA Loan proceeds" or similar phrasing
shall be construed as meaning the same thing as "paying the purchase price of the WIFIA Bond."
(1) Whenever this Agreement requires a change in principal amount, interest
rate or amortization schedule of the WIFIA Loan, it is intended that such change be reflected in
the WIFIA Bond. Whenever there is a prepayment of the WIFIA Loan, it is intended that such
prepayment be implemented through a prepayment of the WIFIA Bond.
(m) Whenever this Agreement sets forth a time period for a number of days by
when a deliverable must be provided or an action must be taken, such time period shall be
computed on the basis of a three hundred sixty (360) day year of twelve (12) thirty (30) day months.
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ARTICLE II
THE WIFIA LOAN
Section 3. WIFIA Loan Amount. The total amount of Disbursements shall not, in the
aggregate, exceed the Maximum Principal Amount. The Maximum Principal Amount, plus the
total amount of capitalized interest added to the principal balance of the WIFIA Loan pursuant to
Section 8(a)(iii) (Payments of WIFIA Debt Service), shall not, in the aggregate, exceed
$383,121,297.
Section 4. Disbursement Conditions.
(a) WIFIA Loan proceeds shall be disbursed solely in respect of Eligible
Project Costs paid or incurred and approved for payment by or on behalf of the Borrower in
connection with the Project, including, for the avoidance of doubt, Eligible Project Costs that were
initially funded with Interim Financing proceeds.
(i) Initial Disbursement. The WIFIA Lender will make an initial
disbursement of the WIFIA Loan to the Borrower in an amount equal to
[ ] ($[ ]) within five (5) Business Days after the
Effective Date (or as soon thereafter as is possible in the event that the WIFIA Lender is
prevented from making such disbursement within the time period described above for
reasons beyond its control), subject to the following terms and conditions: (A) the
Borrower shall have delivered a completed and executed Requisition dated the Effective
Date in accordance with the requirements of Schedule IV (Requisition Procedures) and
Section 11(b) (Conditions Precedent to Disbursements), together with Eligible Project
Costs Documentation for the Eligible Project Costs to be reimbursed, to the WIFIA Lender
no later than three (3) Business Days prior to the Effective Date and the WIFIA Lender
shall have accepted and approved such Requisition, provided that the timing requirements
for Requisitions set forth in Schedule IV (Requisition Procedures) shall not apply to this
initial disbursement; (B) no Material Adverse Effect, or any event or condition that could
reasonably be expected to have a Material Adverse Effect, has occurred or arisen since the
date of the Application; and (C) other than the conditions precedent in Section 11(b)
(Conditions Precedent to Disbursements) that are expressly addressed in the initial
Requisition, no other conditions precedent set forth in Section 11(b) (Conditions Precedent
to Disbursements) shall apply to such initial disbursement.
(ii) Subsequent Disbursements. For each disbursement other than the
disbursement contemplated in Section 4(a)(i) (Disbursement Conditions; Initial
Disbursement), each Disbursement of the WIFIA Loan shall be made pursuant to the
procedures of Schedule IV (Requisition Procedures) and subject to the requirements of
this Section 4 and the conditions set forth in Section 11(b) (Conditions Precedent to
Disbursements); provided, that no Disbursements shall be made after the Final
Disbursement Date.
(b) Subject to this Section 4, any scheduled Disbursement (as reflected in the
WIFIA Loan Disbursement Schedule) that remains undrawn as of its scheduled date shall
automatically be available for the next scheduled Disbursement date, up to the Final Disbursement
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Date, with the effect of automatically updating the WIFIA Loan Disbursement Schedule (and the
WIFIA Loan Amortization Schedule) without need for the WIFIA Lender's approval. The
Borrower may also amend the WIFIA Loan Disbursement Schedule by submitting a revised
version thereof to the WIFIA Lender no later than thirty (30) days prior to the proposed effective
date of such amendment, together with a detailed explanation of the reasons for such revisions.
Such revised WIFIA Loan Disbursement Schedule shall become effective upon the WIFIA
Lender's approval thereof, which approval shall be deemed granted if the WIFIA Lender has not
objected within thirty (30) days from receipt of the revised schedule, and which approval shall
have the effect of updating the WIFIA Loan Amortization Schedule to reflect the updated WIFIA
Loan Disbursement Schedule. Notwithstanding the foregoing, the date of the first Disbursement
shall not be earlier than the initial date of Disbursement set out in the WIFIA Loan Amortization
Schedule as of the Effective Date.
Section 5. Term. The term of the WIFIA Loan shall extend from the Effective Date to
the Final Maturity Date or to such earlier date as all amounts due or to become due to the WIFIA
Lender hereunder have been irrevocably paid in full in immediately available funds.
Section 6. Interest Rate. The Borrower shall pay interest on the WIFIA Loan Balance
at the WIFIA Interest Rate; provided, that, upon the occurrence of an Event of Default, the
Borrower shall pay interest on the WIFIA Loan Balance at the Default Rate, (a) in the case of any
Payment Default, from (and including) its due date to (but excluding) the date of actual payment
of the overdue amount of principal of the WIFIA Loan and accrued interest thereon and (b) in the
case of any other Event of Default, from (and including) the date of such occurrence to (but
excluding) the earlier of the date on which (i) such Event of Default has been cured (if applicable)
in accordance with the terms of this Agreement or waived by the WIFIA Lender and (ii) the WIFIA
Loan Balance has been irrevocably paid in full in immediately available funds. Interest shall (x)
accrue on the WIFIA Loan commencing on the date of the first Disbursement of the WIFIA Loan,
(y) be payable commencing on the Debt Service Payment Commencement Date and (z) be
computed on the WIFIA Loan Balance on the basis of a three hundred sixty (360) day year of
twelve (12) thirty (30) day months.
Section 7. Security and Priority; Flow of Funds.
(a) As security for the WIFIA Loan, and in connection with the issuance and
delivery of this Agreement, the Borrower shall pledge, assign and grant to the WIFIA Lender for
its benefit, Liens on the Pledged Collateral in accordance with the provisions of the Ordinance
Documents. As evidence of the Borrower's obligation to repay the WIFIA Loan, the Borrower
shall issue and deliver to the WIFIA Lender, as the registered owner, on or prior to the Effective
Date, the WIFIA Bond. The WIFIA Bond shall be issued pursuant to the Master Ordinance and
the WIFIA Supplemental Ordinance and shall be a Parity Obligation under the Master Ordinance
and all other WIFIA Loan Documents, entitled to all of the benefits of a Parity Obligation under
the Master Ordinance and all other WIFIA Loan Documents. The WIFIA Bond shall be secured
by a Lien on the Pledged Revenues on a parity with the Parity Obligations and senior to all
Subordinated Debt. A WIFIA Debt Service Reserve Account will not be required as security for
the WIFIA Bond. Payment of the purchase price of the WIFIA Bond will be through
disbursements to be made by the WIFIA Lender to the Borrower pursuant to the terms of this
Agreement.
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(b) Amounts deposited in the System Fund shall be applied in the order of
priority described in, and in accordance with, the Flow of Funds.
Section 8. Repayments.
(a) Payment of WIFIA Debt Service.
(i) No WIFIA Debt Service shall be due or payable prior to the Debt
Service Payment Commencement Date. The Borrower shall pay (A) WIFIA Debt Service
in the amounts and manner and on the Payment Dates as set forth in the WIFIA Loan
Amortization Schedule, as the same may be revised pursuant to Section 8(c) (Adjustments
to WIFIA Loan Amortization Schedule) and (B) payments of any other amounts on each
other date on which payment thereof is required to be made hereunder; provided, that, in
either case if any such date is not a Business Day, payment shall be made on the next
Business Day following such date. WIFIA Loan proceeds borrowed and repaid may not be
re -borrowed.
(ii) Notwithstanding anything herein to the contrary, the WIFIA Loan
Balance and any accrued interest thereon shall be due and payable in full on the Final
Maturity Date.
(iii) If a Capitalized Interest Period is applicable as set forth in Part C
of Schedule I (WIFIA Loan Specific Terms), during the Capitalized Interest Period, no
payment of principal of or interest on the WIFIA Loan will be required to be made. On
each Capitalized Interest Date, interest accrued and not paid on the WIFIA Loan during the
six (6) month period ending immediately prior to such date (or such shorter period if the
Capitalized Interest Period ends earlier) shall be capitalized and added to the WIFIA Loan
Balance subject to any limitations set forth in Section 3 ( WIFIA Loan Amount), as set forth
in the WIFIA Loan Amortization Schedule. Within thirty (30) days after the end of the
Capitalized Interest Period, the WIFIA Lender shall give written notice to the Borrower
stating the WIFIA Loan Balance as of the close of business on the last day of the
Capitalized Interest Period, which statement thereof shall be deemed conclusive absent
manifest error; provided, however, that no failure to give or delay in giving such notice
shall affect any of the obligations of the Borrower hereunder or under any of the other
WIFIA Loan Documents. Notwithstanding the foregoing, the Capitalized Interest Period
shall end immediately upon written notification to the Borrower by the WIFIA Lender that
an Event of Default has occurred and that the WIFIA Lender has elected to end the
Capitalized Interest Period, in which case interest shall no longer be capitalized, payments
of interest shall be due and payable beginning on the next Interest Payment Date and
payments of principal shall be due and payable beginning on the next Principal Payment
Date, in each case in accordance with the terms hereof.
(iv) If an Interest Only Period is applicable as set forth in Part C of
Schedule I ( WIFIA Loan Specific Terms), during the Interest Only Period, the WIFIA Debt
Service payable by the Borrower shall consist of one hundred percent (100%) of the
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amount of interest then due and payable on the WIFIA Loan Balance, and no payment of
principal of the WIFIA Loan will be due and payable during the Interest Only Period.
(v) Any defeasance of the WIFIA Loan in accordance with Section 7(e)
of the Master Ordinance and applicable law shall not be deemed a repayment or
prepayment of the WIFIA Loan in full, and the Borrower shall comply with all of its
obligations hereunder and under the other WIFIA Loan Documents (other than with respect
to payments of WIFIA Debt Service, which payments shall continue to be made in
accordance with the WIFIA Loan Amortization Schedule by the succeeding entity
assuming the Borrower's payment obligations), unless otherwise agreed by the WIFIA
Lender, until the irrevocable payment in full in immediately available funds of the WIFIA
Loan Balance, together with all accrued interest, fees and expenses with respect thereto.
(b) Manner of Payment. Payments under this Agreement (and the WIFIA Bond,
which payments shall not be duplicative) shall be made in Dollars and in immediately available
funds (without counterclaim, offset or deduction) in accordance with the payment instructions
provided by the WIFIA Lender prior to the relevant payment, as may be modified in writing from
time to time by the WIFIA Lender; provided, that the failure to provide updated payment
instructions shall not affect in any manner the Borrower's obligations hereunder or under any other
WIFIA Loan Document.
(c) Adjustments to WIFIA Loan Amortization Schedule.
(i) The WIFIA Lender may, from time to time, modify the WIFIA Loan
Amortization Schedule included in Schedule VI (WIFIA Loan Amortization Schedule) to
reflect (A) any change to the WIFIA Loan Balance, (B) any change to the date and amount
of any principal or interest due and payable or to become due and payable by the Borrower
hereunder in accordance with this Agreement, (C) any mathematical corrections as the
WIFIA Lender may determine are necessary, and (D) with the consent of the Borrower
(not to be unreasonably withheld), such other information as the WIFIA Lender may
determine is necessary for administering the WIFIA Loan and this Agreement, if and so
long as such revised WIFIA Loan Amortization Schedule shall comply with the
requirements of Section 3 (WIFIA Loan Amount). Any calculations described above shall
be rounded up to the nearest whole cent. Any adjustments or revisions to the WIFIA Loan
Amortization Schedule as a result of a decrease in the WIFIA Loan Balance shall be applied
to reduce future payments due on the WIFIA Loan in inverse order of maturity, other than
prepayments which shall be applied in accordance with Section 9(b) (General Prepayment
Instructions). If the WIFIA Loan Amortization Schedule is modified pursuant to this
Section 8(c), the WIFIA Lender shall provide the Borrower and the Paying Agent/Registrar
with a copy of such revised WIFIA Loan Amortization Schedule, but no failure to provide
or delay in providing the Borrower or the Paying Agent/Registrar with such copy shall
affect any of the obligations of the Borrower under this Agreement or any of the other
WIFIA Loan Documents. The WIFIA Lender may also, from time to time or when so
requested by the Borrower, advise the Borrower and the Paying Agent/Registrar by written
notice of the amount of the WIFIA Loan Balance as of the date of such notice. Absent
manifest error, the WIFIA Lender's determination of the WIFIA Loan Balance and all
matters as set forth on the WIFIA Loan Amortization Schedule shall be deemed conclusive
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evidence thereof; provided, that neither the failure to make any such determination,
modification, or recordation nor any error in such determination, modification, or
recordation shall affect in any manner the Borrower's obligations hereunder or under any
other WIFIA Loan Document.
(ii) The Borrower shall have the right to propose adjustments to the
WIFIA Loan Amortization Schedule exercisable once on or prior to the date that is one
hundred twenty (120) days preceding the first Principal Payment Date, such adjustments
to be submitted by the Borrower to the WIFIA Lender in the form of an updated
Schedule VI (WIFIA Loan Amortization Schedule), together with (A) an explanation
setting out the reason for such proposed adjustments (such as material unforeseen changes
to the Project schedule, costs, or the Borrower's funding strategy), and (B) an updated
rating affirmation or current public rating from a Nationally Recognized Rating Agency on
the WIFIA Loan (or other Parity Obligations, as the WIFIA Lender may agree)
demonstrating the Borrower's continued creditworthiness; provided that (x) the form of
and any adjustment to the WIFIA Loan Amortization Schedule, together with the
Borrower's explanation and the rating affirmation, shall be acceptable to the WIFIA Lender,
(y) the weighted average life of the WIFIA Loan shall not exceed forty-two (42) years
measured as of the initial Disbursement date and (z) the WIFIA Loan Amortization
Schedule shall comply with all applicable requirements under this Agreement and law,
including, without limitation, the requirements of Section 3 (WIFIA Loan Amount). Such
revised WIFIA Loan Amortization Schedule shall become effective upon the approval by
the WIFIA Lender in its sole discretion.
Section 9. Prepayment.
(a) Optional Prepayments. The Borrower may prepay the WIFIA Loan, without
penalty or premium, (i) in full on any date on or after the Final Disbursement Date or (ii) in part
on any Payment Date on or after the Final Disbursement Date (and, if in part, the amounts thereof
to be prepaid shall be determined by the Borrower; provided, that such prepayment shall be in
principal amounts of $1,000,000 or any integral multiple of $1.00 in excess thereof), in each case
from time to time but not more than once annually in accordance with 33 U.S.C. § 3908(c)(4)(A).
The Borrower may make such prepayment by paying to the WIFIA Lender such principal amount
of the WIFIA Loan to be prepaid, together with the unpaid interest accrued on the amount of
principal so prepaid to the date of such prepayment and all fees and expenses then due and payable
to the WIFIA Lender. Each prepayment of the WIFIA Loan pursuant to this Section 9(a) shall be
made on such date and in such principal amount as shall be specified by the Borrower in a written
notice, signed by the Borrower's Authorized Representative and delivered to the WIFIA Lender
not less than thirty (30) days prior to the requested date of prepayment, unless otherwise agreed
by the WIFIA Lender. At any time between delivery of such written notice and the applicable
optional prepayment, the Borrower may, without penalty or premium, rescind its announced
optional prepayment by further written notice to the WIFIA Lender. Anything in this Section 9(a)
to the contrary notwithstanding, the failure by the Borrower to make any optional prepayment shall
not constitute a breach or default under this Agreement.
(b) General Prepayment Instructions. Upon the WIFIA Lender's receipt of
confirmation that payment in full in immediately available funds of the entire WIFIA Loan
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Balance and any unpaid interest, fees and expenses with respect thereto has occurred as a result of
a prepayment, the WIFIA Lender shall surrender the WIFIA Bond to the Paying Agent/Registrar,
by mail in accordance with Section 31 (Notices) or as otherwise agreed between the parties hereto.
If the Borrower prepays only part of the unpaid balance of principal of the WIFIA Loan, the WIFIA
Lender may make a notation on the WIFIA Loan Amortization Schedule indicating the amount of
principal of and interest on the WIFIA Loan then being prepaid. Absent manifest error, the WIFIA
Lender's determination of such matters as set forth on an updated WIFIA Loan Amortization
Schedule shall be conclusive evidence thereof; provided, that neither the failure to make any such
recordation nor any error in such recordation shall affect in any manner the Borrower's obligations
hereunder or under any other WIFIA Loan Document. All partial prepayments of principal shall
be applied to reduce the WIFIA Loan Balance such that the remaining scheduled principal
payments for the WIFIA Loan set out in the WIFIA Loan Amortization Schedule are reduced
substantially pro rata. If such funds have not been so paid on the prepayment date, such principal
amount of the WIFIA Loan shall continue to bear interest until payment thereof at the rate provided
for in Section 6 (Interest Rate).
Section 10. Fees and Expenses.
(a) Fees. The Borrower shall pay to the WIFIA Lender:
(i) the Servicing Set -Up Fee, which shall be due and payable within
thirty (30) days after receipt by the Borrower of an invoice from the WIFIA Lender with
respect thereto (or, if earlier, the date of the first Disbursement of the WIFIA Loan);
(ii) the Construction Period Servicing Fee, which shall accrue on the
first Business Day of the then -current Federal Fiscal Year and shall be due and payable on
or prior to each November 15 during the period beginning from the Effective Date through
(and including) the end of the Federal Fiscal Year during which the Substantial Completion
Date occurs; provided, that the Initial Construction Period Servicing Fee shall be due and
payable within thirty (30) days after receipt by the Borrower of an invoice from the WIFIA
Lender with respect thereto (or, if earlier, the date of the first Disbursement of the WIFIA
Loan); and
(iii) the Operating Period Servicing Fee, which shall accrue on the first
Business Day of the then -current Federal Fiscal Year and shall be due and payable on or
prior to each November 15, beginning with the first November 15 following the end of the
Federal Fiscal Year during which the Substantial Completion Date occurs, until (and
including) the Final Maturity Date; provided, that the Operating Period Servicing Fee due
and payable with respect to the Federal Fiscal Year during which the Final Maturity Date
occurs shall be equal to the pro-rata monthly portion of the then applicable Operating
Period Servicing Fee multiplied by the number of partial or whole months remaining
between October 1 and the Final Maturity Date.
(b) The amount of each Construction Period Servicing Fee (other than the
Initial Construction Period Servicing Fee) and each Operating Period Servicing Fee shall be
adjusted in proportion to the percentage change in CPI for the calendar year immediately preceding
the calendar year during which such fee is due. The WIFIA Lender shall notify the Borrower of
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the amount of each such fee at least thirty (30) days before payment is due, which determination
shall be conclusive absent manifest error.
(c) Expenses. The Borrower agrees, whether or not the transactions hereby
contemplated shall be consummated, to reimburse the WIFIA Lender on demand from time to time,
within thirty (30) days after receipt by the Borrower of any invoice from the WIFIA Lender, for
any and all fees, costs, charges, and expenses incurred by it (including the fees, costs, and expenses
of its legal counsel, financial advisors, auditors and other consultants and advisors) in connection
with the negotiation, preparation, execution, delivery, and performance of this Agreement and the
other WIFIA Loan Documents and the transactions hereby and thereby contemplated, including
attorneys', and engineers' fees and professional costs, including all such fees, costs, and expenses
incurred as a result of or in connection with: (i) the enforcement of or attempt to enforce, or the
monitoring, protection or preservation of any right or claim under, the Liens on the Pledged
Collateral or any provision of this Agreement or any of the other WIFIA Loan Documents or the
rights of the WIFIA Lender thereunder; (ii) any amendment, modification, re -execution, waiver,
or consent with respect to this Agreement or any other WIFIA Loan Document; and (iii) any work-
out, restructuring, or similar arrangement of the obligations of the Borrower under this Agreement
or the other WIFIA Loan Documents, including during the pendency of any Event of Default.
(d) The obligations of the Borrower under this Section 10 shall survive the
payment or prepayment in full or transfer of the WIFIA Bond, the enforcement of any provision
of this Agreement or the other WIFIA Loan Documents, any amendments, waivers or consents
with respect thereto, any Event of Default, and any workout, restructuring, or similar arrangement
of the obligations of the Borrower under this Agreement or the other WIFIA Loan Documents.
ARTICLE III
CONDITIONS PRECEDENT
Section 11. Conditions Precedent.
(a) Conditions Precedent to Effectiveness. Notwithstanding anything in this
Agreement to the contrary, this Agreement shall not become effective until each of the following
conditions precedent has been satisfied or waived in writing by the WIFIA Lender in its sole
discretion:
(i) The Borrower shall have duly executed and delivered to the WIFIA
Lender this Agreement, the WIFIA Bond and the WIFIA Supplemental Ordinance, each in
form and substance satisfactory to the WIFIA Lender.
(ii) The Borrower shall have delivered to the WIFIA Lender complete
and fully executed copies of (A) the Master Ordinance, together with any amendments,
supplements, waivers or modifications thereto (but excluding any document that solely
provides for the issuance or incurrence of Additional Obligations, hedging Obligations or
Interim Financing) and (B) any Related Document with respect to which all or a portion of
the proceeds are or will be applied to fund all or any portion of Total Project Costs, in each
case that has been entered into on or prior to the Effective Date, along with a certification
in the Closing Certificate that each such document is complete, fully executed and in full
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force and effect, and that all conditions contained in the Related Documents that are
necessary to the closing of the WIFIA transaction contemplated hereby (if any) have been
fulfilled.
(iii) The Borrower shall have delivered to the WIFIA Lender fully
executed copies of each Existing Construction Contract, together with any amendments,
waivers or modifications thereto.
(iv) Counsel to the Borrower shall have rendered to the WIFIA Lender
legal opinions satisfactory to the WIFIA Lender in its sole discretion (including those
opinions set forth on Exhibit H-1 (Form of Opinion from City Attorney of Borrower)) and
bond counsel to the Borrower shall have rendered to the WIFIA Lender legal opinions
satisfactory to the WIFIA Lender in its sole discretion (including those opinions set forth
on Exhibit H-2 (Form of Opinion from Bond Counsel to Borrower)).
(v) The Borrower shall have delivered to the WIFIA Lender a certificate,
signed by the Borrower's Authorized Representative, substantially in the form attached
hereto as Exhibit B (Form of Closing Certificate) (the "Closing Certificate"), designating
the Borrower's Authorized Representative, confirming such person's position and
incumbency, and certifying as to the satisfaction of the certain conditions precedent (and,
if requested by the WIFIA Lender, has provided evidence satisfactory to the WIFIA Lender
of such satisfaction), including the following:
(A) as of the Effective Date, (1) the Maximum Principal Amount,
together with the amount of any other credit assistance provided under the
Act to the Borrower, does not exceed forty-nine percent (49%) of
reasonably anticipated Eligible Project Costs; (2) the aggregate amount of
Eligible Project Costs previously incurred prior to the Effective Date does
not exceed fifty-one percent (51%) of Eligible Project Costs; and (3) the
total federal assistance provided to the Project, including the Maximum
Principal Amount, does not exceed eighty percent (80%) of Total Project
Costs;
(B) the Borrower is in compliance with NEPA and any
applicable federal, State or local environmental review and approval
requirements with respect to the Project;
(C) the Borrower has (1) obtained a FEIN (as evidenced by the
delivery of a copy of the Borrower's W-9), (2) obtained a UEI, and (3)
registered with SAM and obtained confirmation of active SAM registration
status;
(D) the Borrower has obtained the WIFIA CUSIP Number;
(E) the representations and warranties of the Borrower set forth
in this Agreement and in each other WIFIA Loan Document to which the
Borrower is a party are true and correct on and as of the date hereof, except
to the extent that such representations and warranties expressly relate to an
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earlier date, in which case such representations and warranties were true and
correct as of such earlier date; and
(F) no Material Adverse Effect, or any event or condition that
could reasonably be expected to have a Material Adverse Effect, has
occurred or arisen since the date of the Application.
(vi) The Borrower shall have provided evidence to the WIFIA Lender's
satisfaction, prior to the Effective Date, of the assignment by at least one (1) Nationally
Recognized Rating Agency of a public Investment Grade Rating on the WIFIA Bond,
along with a certification in the Closing Certificate that no such rating has been reduced,
withdrawn or suspended as of the Effective Date.
(vii) The Borrower shall have delivered to the WIFIA Lender the Public
Benefits Report.
(viii) The Borrower shall have delivered to the WIFIA Lender the opinion
of the State Attorney General approving the WIFIA Bond and the proceedings authorizing
this Agreement.
(ix) The Borrower shall have paid in full all invoices delivered by the
WIFIA Lender to the Borrower as of the Effective Date for any applicable Servicing Fees
and the fees and expenses of the WIFIA Lender's counsel and financial advisors and any
auditors or other consultants retained by the WIFIA Lender for the purposes hereof.
(b) Conditions Precedent to Disbursements. Notwithstanding anything in this
Agreement to the contrary, the WIFIA Lender shall have no obligation to make any Disbursement
of the WIFIA Loan to the Borrower (except as otherwise provided in Section 4(a)(i) (Initial
Disbursement) with respect to the initial disbursement) until each of the following conditions
precedent has been satisfied or waived in writing by the WIFIA Lender in its sole discretion:
(i) The Borrower shall have delivered to the WIFIA Lender a
Requisition that complies with the provisions of Section 4 (Disbursement Conditions),
Schedule IV (Requisition Procedures) and Exhibit D (Form of Requisition), including
satisfactory Eligible Project Costs Documentation relating to such Requisition. The
Borrower's Authorized Representative shall also certify in such Requisition that:
(A) at the time of, and immediately after giving effect to, any
Disbursement of WIFIA Loan proceeds then currently requested, (1) no
Default or Event of Default and no event of default under any other Related
Document has occurred and is continuing and (2) no event that, with the
giving of notice or the passage of time or both, would constitute an event of
default under any other Related Document, has occurred and is continuing;
(B) no Material Adverse Effect, or any event or condition that
could reasonably be expected to result in a Material Adverse Effect, has
occurred since the Effective Date;
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(C) the aggregate amount of all Disbursements (including the
requested Disbursement amount but excluding any interest that is
capitalized in accordance with the terms hereof) does not exceed (1) the
Maximum Principal Amount or (2) the amount of Eligible Project Costs
paid or incurred by the Borrower;
(D) the Eligible Project Costs for which reimbursement or
payment is being requested has not been reimbursed or paid by any previous
disbursement of (1) WIFIA Loan proceeds or (2) any other source of
funding for the Project (other than any Interim Financing or cash of the
Borrower) as identified in the Project Budget;
(E) (1) the Borrower has complied, and has required each of its
contractors and subcontractors at all tiers with respect to the Project to
comply, with all applicable laws, rules, regulations and requirements,
including 40 U.S.C. §§ 3141-3144, 3146, and 3147 (relating to Davis -
Bacon Act requirements) (and regulations relating thereto) and 33 U.S.C. §
3914 (relating to American iron and steel products); and (2) supporting
documentation, such as certified payroll records and certifications for all
iron and steel products used for the Project, are being maintained and are
available for review upon request by the WIFIA Lender;
(F) the representations and warranties of the Borrower set forth
in this Agreement and in each other WIFIA Loan Document are true and
correct as of each date on which any disbursement of the WIFIA Loan is
made, except to the extent such representations and warranties expressly
relate to an earlier date (in which case, such representations and warranties
are true and correct as of such earlier date);
(G) the Borrower has delivered all required deliverables under
and in compliance with the requirements of Schedule V (Reporting
Requirements), except as has been otherwise agreed by the WIFIA Lender;
and
(H) the amount being requested for Disbursement is with respect
to Eligible Project Costs for which all or a portion of the Eligible Project
Costs Documentation was previously submitted to and approved by the
WIFIA Lender in accordance with Schedule IV (Requisition Procedures)
and Schedule V (Reporting Requirements) of the WIFIA Loan Agreement,
and/or the Borrower has set out in the Requisition (or attached separately to
the Requisition) a summary of any Eligible Project Costs that have not
otherwise been previously submitted to the WIFIA Lender for approval,
together with supporting Eligible Project Costs Documentation.
(ii) If applicable, to the extent necessary to make the representations and
warranties in Section 12(f) (Litigation) and 12(j)(iii) (Compliance with Laws) true, correct
and complete as of the date of the applicable Disbursement, the Borrower shall have
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delivered an updated Schedule III (Borrower Disclosures) in form and substance
acceptable to the WIFIA Lender.
(iii) The Borrower shall have paid in full (A) any outstanding Servicing
Fees due and payable under Section 10 (Fees and Expenses) and (B) all invoices delivered
by the WIFIA Lender to the Borrower, for the fees and expenses of the WIFIA Lender's
counsel and financial advisors and any auditors or other consultants retained by the WIFIA
Lender for the purposes hereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 12. Representations and Warranties of Borrower. The Borrower hereby
represents and warrants that, as of the Effective Date and, as to each of the representations and
warranties below other than those contained in Section 12(b) (Officers' Authorization), Section
12(k) (Credit Ratings) and the first sentence of Section 12(m) (Construction Contracts), as of each
date on which any Disbursement of the WIFIA Loan is requested or made:
(a) Organization; Power and Authority. The Borrower is a Legal Entity duly
organized and validly existing under its Organizational Documents and the laws of the State, has
full legal right, power and authority to do business in the State and to enter into the WIFIA Loan
Documents then in existence, to execute and deliver this Agreement and the WIFIA Bond, and to
carry out and consummate all transactions contemplated hereby and thereby and has duly
authorized the execution, delivery and performance of this Agreement, the WIFIA Bond, and the
other WIFIA Loan Documents. Other than such Organizational Documents, the WIFIA
Supplemental Ordinance, the approving opinion of the State Attorney General and the registration
certificate of the Comptroller of Public Accounts of the State, there are no additional instruments
or documents necessary for the Borrower to execute and deliver, or to perform its obligations under,
the WIFIA Loan Documents to which it is a party and to consummate and implement the
transactions contemplated by the WIFIA Loan Documents.
(b) Officers' Authorization. As of the Effective Date, the officers of the
Borrower executing (or that previously executed) the WIFIA Loan Documents, and any
certifications or instruments related thereto, to which the Borrower is a party are (or were at the
time of such execution) duly and properly in office and fully authorized to execute the same.
(c) Due Execution; Enforceability. Each of the WIFIA Loan Documents in
effect as of any date on which this representation and warranty is made, and to which the Borrower
is a party, has been duly authorized, executed and delivered by the Borrower and, assuming the
due authorization, execution and delivery of such documents by the other parties thereto,
constitutes the legal, valid and binding agreement of the Borrower enforceable against the
Borrower in accordance with its terms, except as such enforceability (i) may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights
of creditors generally and (ii) is subject to general principles of equity (regardless of whether
enforceability is considered in equity or at law).
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(d) Non -Contravention. The execution and delivery of the WIFIA Loan
Documents to which the Borrower is a party, the consummation of the transactions contemplated
by the WIFIA Loan Documents, and the fulfillment of or compliance with the terms and conditions
of all of the WIFIA Loan Documents, do not and will not (i) conflict with the Borrower's
Organizational Documents, (ii) conflict in any material respect with, or constitute a violation,
breach or default (whether immediately or after notice or the passage of time or both) by the
Borrower of or under, any applicable law, administrative rule or regulation, any applicable court
or administrative decree or order, or any ordinance, indenture, mortgage, deed of trust, loan
agreement, lease, contract or other agreement or instrument to which the Borrower is a party or by
which it or its properties or assets are otherwise subject or bound, or (iii) result in the creation or
imposition of any Lien, charge or encumbrance of any nature whatsoever upon any of the property
or assets of the Borrower, other than Permitted Liens.
(e) Consents and Approvals. All Governmental Approvals required as of the
Effective Date and required as of any subsequent date on which this representation is made (or
deemed made) for the undertaking, construction and completion of the Project and the operation
and maintenance of the System, and for the Borrower to execute and deliver and perform its
obligations under the WIFIA Loan Documents and the Construction Contracts, have been obtained
or effected and are in full force and effect. The Borrower is not in default with respect to any
Governmental Approval, which default could reasonably be expected to result in a Material
Adverse Effect. No consent or approval of any trustee, holder of any indebtedness of the Borrower
or any other Person is necessary in connection with the execution, delivery, and performance by
the Borrower of the WIFIA Loan Documents and the consummation of any transaction
contemplated thereunder, except as have been obtained or made and as are in full force and effect.
(f) Litigation. Except as set forth in Part B of Schedule III (Borrower
Disclosures), there is no action, suit, proceeding or, to the knowledge of the Borrower, any inquiry
or investigation, in any case before or by any court or other Governmental Authority pending or,
to the knowledge of the Borrower, threatened against or affecting the System, the Project or the
ability of the Borrower to execute, deliver and perform its obligations under the WIFIA Loan
Documents or that in any case could reasonably be expected to result in a Material Adverse Effect.
(g) Security Interests.
(i) The Ordinance Documents and Chapters 1208 and 1502, Texas
Government Code, as amended to the date hereof, establish, and the Borrower has taken
all necessary action to pledge, assign, and grant, in each case in favor of the WIFIA Lender
as the holder of the WIFIA Bond, legal, valid, binding and enforceable Liens on the
Pledged Collateral purported to be created, pledged, assigned, and granted pursuant to and
in accordance with the Ordinance Documents, irrespective of whether any Person has
notice of the pledge and without the need for any physical delivery, recordation, filing, or
further act, and the security interests created in the Pledged Collateral have been duly
perfected under applicable State law, including Chapter 1208, Texas Government Code, as
amended. Such Liens are in full force and effect, are not subordinate or junior to any other
Liens in respect of the Pledged Collateral and are not pari passu with any Liens other than
the Liens on the Pledged Collateral in favor of the Parity Obligations. The Borrower is not
in breach of any covenants set forth in Section 14(b) (Securing Liens) or in the Ordinance
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Documents with respect to the matters described in Section 14(b) (Securing Liens). As of
the Effective Date and as of each other date this representation and warranty is made, (A)
all documents and instruments have been recorded or filed for record in such manner and
in such places as are required and all other action as is necessary or desirable has been
taken to establish a legal, valid, binding, and enforceable and, if applicable, perfected, Lien
on the Pledged Collateral in favor of the Holders of Parity Obligations to secure the Parity
Obligations to the extent contemplated by the Ordinance Documents, and (B) all taxes and
filing fees that are due and payable in connection with the execution, delivery or
recordation of any Ordinance Documents or any instruments, certificates or financing
statements in connection with the foregoing, have been paid. As provided by Chapter 1208,
Texas Government Code, as amended, neither the attachment, perfection, validity,
enforceability nor priority of the security interest in the Pledged Collateral granted pursuant
to the Ordinance Documents is governed by Article 9 of the UCC.All Parity Obligations
and the interest thereon constitute special obligations of the Borrower payable from the
Pledged Collateral and the owners of Parity Obligations shall never have the right to
demand payment out of funds raised or to be raised by taxation, or from any source other
than those specified in the Master Ordinance or any Supplemental Ordinance. The
obligation of the Borrower to pay or cause to be paid the amounts payable under the Master
Ordinance and each Supplemental Ordinance out of the Pledged Collateral is absolute,
irrevocable, complete, and unconditional, and the amount, manner, and time of payment of
such amounts shall not be decreased, abated, rebated, setoff, reduced, abrogated, waived,
diminished, or otherwise modified in any manner or to any extent whatsoever, regardless
of any right of setoff, recoupment, or counterclaim that the Borrower might otherwise have
against any owner or any other party and regardless of any contingency, force majeure,
event, or cause whatsoever and notwithstanding any circumstance or occurrence that may
arise or take place before, during, or after the issuance of Parity Obligations while any
Parity Obligation is Outstanding.
(h) No Debarment. The Borrower has fully complied with its verification
obligations under 2 C.F.R. § 180.320 and confirms, based on such verification, that, to its
knowledge, neither the Borrower nor any of its principals (as defined in 2 C.F.R. § 180.995 and
supplemented by 2 C.F.R § 1532.995) (i) is debarred, suspended or voluntarily excluded from
participation in Government contracts, procurement or non -procurement matters, (ii) is presently
indicted for or otherwise criminally or civilly charged by a Governmental Authority with
commission of any of the offenses contemplated by 2 C.F.R. Part 180 or 2 C.F.R. Part 1532; or
(iii) has, within the three (3) year period preceding the Effective Date, (x) been convicted for or
had a civil judgment rendered against it or them for any of such offenses within such period or (y)
had any public transactions (federal, State or local) terminated for cause or default.
(i) No Lobbying. Pursuant to 31 U.S.C. § 1352, to the best of the Borrower's
knowledge and belief, (A) no Federal appropriated funds have been paid or will be paid, by or on
behalf of the Borrower, to any Person for influencing or attempting to influence an officer or
employee of an agency, a member (or employee of a member), officer, or employee of the U.S.
Congress, in connection with the making of the WIFIA Loan, execution (including amendments
or modifications) of the WIFIA Loan Documents, or any other federal action under 31 U.S.C. §
1352(a)(2); and (B) if any funds other than Federal appropriated funds have been paid or will be
paid to any Person for influencing or attempting to influence an officer or employee of any agency,
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a member (or employee of a member), officer, or employee of the U.S. Congress in connection
with the WIFIA Loan, the Borrower has completed and submitted to the WIFIA Lender Standard
Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.
(j) Compliance with Laws.
(i) The Borrower has complied, and has required each of its contractors
and subcontractors at all tiers with respect to the Project to comply, with all applicable
laws, rules, regulations and requirements, including 40 U.S.C. §§ 3141-3144, 3146, and
3147 (relating to Davis -Bacon Act requirements) (and regulations relating thereto), 33
U.S.C. § 3914 (relating to American iron and steel products), 2 C.F.R. § 180.320 and 2
C.F.R. Part 1532 (relating to non -debarment), 31 U.S.C. § 1352 and 40 C.F.R. § 34.100
(relating to non -lobbying), and any applicable Sanctions Laws.
(ii) To ensure such compliance, the Borrower has included in all
contracts with respect to the Project (A) the contract clauses relating to applicable federal
requirements (such as Davis -Bacon) and (B) requirements that its contractors (1) shall
comply with all applicable laws, rules, regulations, and requirements set forth in this
Section 12(j) and follow applicable federal guidance and (2) incorporate in all subcontracts
(and cause all subcontractors to include in lower tier subcontracts) such terms and
conditions as are required to be incorporated therein by any applicable laws, rules,
regulations and requirements set forth in this Section 12(j).
(iii) Except as set forth in Part C of Schedule III (Borrower
Disclosures), the Borrower is in compliance with all laws applicable to the System
(including the Project) relating to environmental, health or safety matters.
(k) Credit Ratings. The WIFIA Bond has received a public Investment Grade
Rating from at least one (1) Nationally Recognized Rating Agency, written evidence of such rating
has been provided to the WIFIA Lender prior to the Effective Date, and such rating has not been
reduced, withdrawn or suspended as of the Effective Date.
(1) No Defaults. No Default or Event of Default, and no default or event of
default by the Borrower under any other Related Document, has occurred and is continuing.
(m) Construction Contracts. Part C of Schedule II (Project Details) sets forth
a list of the Existing Construction Contracts as of the Effective Date. With respect to each
Construction Contract executed as of any date on which this representation and warranty is made,
such Construction Contract is in full force and effect.
(n) Information. The information furnished by, or on behalf of, the Borrower
to the WIFIA Lender, when taken as a whole, is true and correct in all material respects (other than
for projections and other forward -looking statements contained in the Base Case Financial Model
and any Updated Financial Model/Plan which have been made in good faith and based on
reasonable assumptions) and does not contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading as of the date made or furnished.
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(o) Insurance. The Borrower is in compliance with all insurance obligations
required under each Construction Contract and the WIFIA Loan Documents (including Section
14(0 (Insurance) hereof) as of the date on which this representation and warranty is made. To the
extent the Borrower self -insures, the Borrower's self-insurance program is actuarially sound.
(p) No Prohibited Liens. Except for Permitted Liens, the Borrower has not
created, and is not under any obligation to create, and has not entered into any transaction or
agreement that would result in the imposition of, any Lien on the Pledged Collateral, the System,
the Project, the Gross Revenues, or the Borrower's respective rights in any of the foregoing.
(q) Financial Statements. Each income statement, balance sheet and statement
of operations and cash flows (collectively, "Financial Statements") delivered to the WIFIA
Lender pursuant to Part B of Schedule V (Reporting Requirements) has been prepared in
accordance with GAAP and presents fairly, in all material respects, the financial condition
(including any liabilities or obligations that are required to be disclosed in accordance with GAAP)
of the Borrower as of the respective dates of the balance sheets included therein and the results of
operations of the Borrower for the respective periods covered by the statements of income included
therein.
(r) Securities Laws. Under existing law, the WIFIA Bond may be issued and
sold without registration under the Securities Act of 1933, as amended, and any State blue sky
laws, and the Master Ordinance is exempt from qualification pursuant to the Trust Indenture Act
of 1939, as amended.
(s) No Delinquent Taxes or Federal Debt. The Borrower has paid all applicable
taxes and other material taxes and assessments payable by it that have become due (other than
those taxes or assessments that it is contesting in good faith and by appropriate proceedings, for
which adequate reserves have been established to the extent required by GAAP). The Borrower
has no delinquent federal debt (including tax liabilities but excluding any delinquencies that have
been resolved with the appropriate federal agency in accordance with the standards of the Debt
Collection Improvement Act of 1996).
(t) Sufficient Funds. The amount of the WIFIA Loan, when combined with all
other funds committed for the development and construction of the Project as set forth under the
various sources of funds in the Project Budget, will be sufficient to carry out the Project, pay all
Total Project Costs anticipated for the development and construction of the Project and achieve
Substantial Completion by the Projected Substantial Completion Date. The total federal assistance
provided to the Project, including the Maximum Principal Amount, does not exceed eighty percent
(80%) of Total Project Costs. The Updated Financial Model/Plan most recently delivered to the
WIFIA Lender pursuant to Part A of Schedule V (Reporting Requirements) demonstrates that the
projected Gross Revenues are sufficient to meet the WIFIA Loan Amortization Schedule. The
Borrower has developed, and identified adequate revenues to implement, a plan for operating,
maintaining, and repairing the Project over the useful life of the Project.
(u) Sovereign Immunity. To the extent authorized by Texas Government Code
Section 1371.059(c), the Borrower has, in the WIFIA Supplemental Ordinance, waived sovereign
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immunity from suit and liability for the purposes of adjudicating a claim to enforce the WIFIA
Bond which evidences amounts due under this Agreement or for damages for breach thereof
(v) Accuracy of Representations and Warranties. The representations,
warranties and certifications of the Borrower set forth in this Agreement and the other WIFIA
Loan Documents are true, correct, and complete, except to the extent such representations and
warranties expressly relate to an earlier date (in which case, such representations and warranties
shall be true, correct, and complete as of such earlier date).
Section 13. Representations and Warranties of WIFIA Lender. The WIFIA Lender
represents and warrants that:
(a) Power and Authority. The WIFIA Lender has all requisite power and
authority to make the WIFIA Loan and to perform all transactions contemplated by the WIFIA
Loan Documents to which it is a party.
(b) Due Execution; Enforceability. The WIFIA Loan Documents to which it is
a party have been duly authorized, executed and delivered by the WIFIA Lender, and are legally
valid and binding agreements of the WIFIA Lender, enforceable against the WIFIA Lender in
accordance with their terms.
(c) Officers' Authorization. The officers of the WIFIA Lender executing each
of the WIFIA Loan Documents to which the WIFIA Lender is a party are duly and properly in
office and fully authorized to execute the same on behalf of the WIFIA Lender.
ARTICLE V
COVENANTS
Section 14. Affirmative Covenants. The Borrower covenants and agrees as follows
until, subject to such longer periods as are provided for under Section 14(o) (Access; Records)
with respect to the Borrower's obligations thereunder, the date the WIFIA Bond and all of the
obligations of the Borrower under this Agreement (other than contingent indemnity obligations)
are irrevocably paid in full in immediately available funds and the WIFIA Lender no longer has
any commitment to make Disbursements to the Borrower, unless the WIFIA Lender waives
compliance in writing:
(a) Rate Covenant.
(i) The Borrower shall comply with all requirements and conditions
specified in the Rate Covenant.
(A) the forecast furnished by the Borrower in the most recent
Updated Financial Model/Plan delivered by the Borrower pursuant to Part
A of Schedule V (Reporting Requirements) demonstrates that projected Net
Revenues may be inadequate to satisfy the Rate Covenant for any Borrower
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Fiscal Year during the Forecast Period, the Borrower shall propose a
remedial course of action, which plan shall demonstrate to the WIFIA
Lender's satisfaction that such plan will generate an equivalent or greater
increase to the Net Revenues so as to satisfy the Rate Covenant; and/or
(B) the Borrower fails to satisfy the Rate Covenant for the most
recently ended Borrower Fiscal Year, the Borrower shall (x) within thirty
(30) days after request by the WIFIA Lender, engage the Technical and Rate
Consultant to review and analyze the operations of the System and
recommend actions regarding revising the rates or changing the methods of
operations, or any other actions to increase the Net Revenues so as to satisfy
the Rate Covenant, (y) cause the Technical and Rate Consultant to issue its
report, including any such recommended actions, no later than ninety (90)
days following such engagement, and (z) either, within sixty (60) days
following the issuance of the Technical and Rate Consultant's report,
(1) implement the Technical and Rate Consultant's recommendations or
(2) undertake an alternative course of action after demonstrating to the
WIFIA Lender's satisfaction that an alternative plan will generate an
equivalent or greater increase to the Net Revenues so as to satisfy the Rate
Covenant.
(b) Securing Liens. The Borrower shall at any and all times, to the extent
permitted by law, pass, make, do, execute, acknowledge and deliver, all and every such further
resolutions, acts, deeds, conveyances, assignments, transfers and assurances as may be necessary
or desirable in connection with assuring, conveying, granting, assigning, securing and confirming
the Liens on the Pledged Collateral (whether now existing or hereafter arising) granted to the
WIFIA Lender for its benefit pursuant to the WIFIA Loan Documents, or intended so to be granted
pursuant to the WIFIA Loan Documents, or which the Borrower may become bound to grant. The
Borrower shall at all times maintain the Pledged Collateral free and clear of any Lien that has
priority over, or equal rank with, the Liens created by the Ordinance Documents, other than
Permitted Liens, and all organizational, regulatory or other necessary action on the part of the
Borrower to that end shall be duly and validly taken at all times. The Borrower shall at all times,
to the extent permitted by law, defend, preserve and protect the Liens on the Pledged Collateral
granted pursuant to the WIFIA Loan Documents and for the benefit of the WIFIA Lender under
the WIFIA Loan Documents against all claims and demands of all Persons whomsoever, subject
to Permitted Liens.
(c) Use of Proceeds. The Borrower shall use the proceeds of the WIFIA Loan
solely for purposes permitted by applicable law, this Agreement and the other WIFIA Loan
Documents.
(d) Prosecution of Work; Verification Requirements.
(i) The Borrower shall diligently prosecute the work relating to the
Project and use commercially reasonable efforts to complete the Project in accordance with
the Construction Schedule (and on or prior to the Development Default Date), the
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Governmental Approvals in connection with the Project, and prudent utility and industry
practice.
(ii) The Borrower shall comply with Subpart C of 2 C.F.R. Part 180, as
supplemented by Subpart C of 2 C.F.R. Part 1532 (relating to debarment), including the
verification requirements set forth in 2 C.F.R. §§ 180.300 and 180.320, and shall include
in its contracts with respect to the Project similar terms or requirements for compliance.
(e) Operations and Maintenance. The Borrower shall operate and maintain the
System (including the Project) substantially in accordance with the Updated Financial Model/Plan
most recently delivered by the Borrower to the WIFIA Lender pursuant to Part A of Schedule V
(Reporting Requirements) and its operations and maintenance plan (that incorporates the Project).
The Borrower shall operate and maintain the System (including the Project) in accordance with
Section 4(c) (Operation and Maintenance) of the Master Ordinance.
(f) Insurance.
(i) The Borrower shall at all times procure and maintain or cause to be
maintained insurance on the System and the construction of the Project, with responsible
insurers, or as part of a reasonable system of self-insurance that is actuarially sound and
adequately funded, in such amounts and against such risks (including damage to or
destruction of the System) as are customarily maintained with respect to works and
properties of like character against accident to, loss of, or damage to such works or
properties, including insurance against public liability, property damage, workers'
compensation, and builders' risk, casualty and liability, as appropriate, and otherwise in
accordance with the Ordinance Documents and Construction Contracts. The insurance
policies shall be available at all reasonable times for inspection upon request by the WIFIA
Lender, its agents and representatives.
(ii) The Borrower shall cause all liability insurance policies that it
maintains (excluding property damage, automobile or workers' compensation insurance),
to reflect the WIFIA Lender as an additional insured to the extent of its insurable interest.
(g) Maintain Legal Structure. The Borrower shall maintain its existence as a
Legal Entity organized and existing under its Organizational Documents and the laws of the State.
(h) System Accounts; Permitted Investments.
(i) The Borrower shall maintain the System Fund in accordance with
the terms hereof and the Master Ordinance. All Gross Revenues received shall be
deposited into the System Fund in accordance with Section 5 (System Fund) of the Master
Ordinance. The Borrower shall not apply any portion of the Gross Revenues or Pledged
Revenues in contravention of this Agreement or the Ordinance Documents. Any funds then
on deposit in the WIFIA Debt Service Account (if applicable) shall only be used for
payments of WIFIA Debt Service by the Borrower (or, if applicable, the Paying
Agent/Registrar as directed by the Borrower) in accordance with the WIFIA Loan
Documents.
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(ii) If a WIFIA Debt Service Reserve Requirement is applicable as set
forth in Part D of Schedule I (WIFIA Loan Specific Terms), the Borrower shall maintain
the WIFIA Debt Service Reserve Account in an amount equal to the WIFIA Debt Service
Reserve Requirement in accordance with the provisions of the applicable Ordinance
Documents. If the WIFIA Debt Service Reserve Account is funded with proceeds of the
WIFIA Loan, amounts in the WIFIA Debt Service Reserve Account shall be applied only
to make payments with respect to the WIFIA Bond.
(iii) Amounts on deposit in the System Accounts shall be held
uninvested or invested in Permitted Investments. Permitted Investments must mature or
be redeemable at the election of the holder at such times as may be necessary to ensure that
funds will be available within the applicable account to be applied towards the purpose for
which the applicable account has been established.
(i) Compliance with Laws.
(i) The Borrower shall, and shall require its contractors and
subcontractors at all tiers with respect to the Project to, comply with all applicable laws,
rules, regulations and requirements, including 40 U.S.C. §§ 3141-3144, 3146, and 3147
(relating to Davis -Bacon Act requirements) (and regulations relating thereto), 33 U.S.C. §
3914 (relating to American iron and steel products), 2 C.F.R. § 180.320 and 2 C.F.R. Part
1532 (relating to non -debarment), 31 U.S.C. § 1352 (relating to non -lobbying), and any
applicable Sanctions Laws.
(ii) To ensure such compliance, the Borrower shall include in all
contracts with respect to the Project (A) the contract clauses relating to applicable federal
requirements (such as Davis -Bacon) and (B) requirements that its contractors (1) shall
comply with all applicable laws, rules, regulations, and requirements set forth in this
Section 14(i) and follow applicable federal guidance and (2) incorporate in all subcontracts
(and cause all subcontractors to include in lower tier subcontracts) such terms and
conditions as are required to be incorporated therein by any applicable laws, rules,
regulations and requirements set forth in this Section 14(i).
(j) Material Obligations. The Borrower shall pay its material obligations
payable from the Gross Revenues promptly and in accordance with their terms and pay and
discharge promptly all taxes, assessments and governmental charges or levies imposed upon it or
upon the Pledged Collateral or other assets of the System, before the same shall become delinquent
or in default, as well as all lawful and material claims for labor, materials and supplies or other
claims which, if unpaid, might give rise to a Lien upon the System or any part thereof or on the
Gross Revenues or the Pledged Collateral; provided, however, that such payment and discharge
shall not be required with respect to any such tax, assessment, charge, levy, claim or Lien so long
as the validity or amount thereof shall be contested by the Borrower in good faith by appropriate
proceedings and so long as the Borrower shall have set aside adequate reserves with respect thereto
in accordance with and to the extent required by GAAP, applied on a consistent basis.
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(k) SAM Registration and UEI. The Borrower shall obtain and maintain, on or
prior to the Effective Date through the Final Maturity Date, an active SAM registration status and
a UEI.
(1) Events of Loss; Loss Proceeds. If an Event of Loss shall occur with respect
to the System (including the Project) or any part thereof, the Borrower shall (i) diligently pursue
all of its rights to compensation against all relevant insurers, reinsurers and Governmental
Authorities, as applicable, in respect of such Event of Loss and (ii) apply all Loss Proceeds (after
excluding any proceeds of delay -in -start-up insurance and proceeds covering liability of the
Borrower to third parties) in respect of such Event of Loss in accordance with Section 4(j)
(Insurance) of the Master Ordinance.
(m) Immunity. The WIFIA Bond sets forth the Borrower's agreement in the
WIFIA Supplemental Ordinance, to the fullest extent permitted by applicable law and pursuant to
Section 1371.059(c) of the Texas Government Code, as amended, with respect to its obligations
arising under the WIFIA Bond, to waive sovereign immunity from suit and liability for the purpose
of adjudicating a claim to enforce its duties and obligations under the WIFIA Bond or for damages
for breach thereof.
(n) Accounting and Audit Procedures.
(i) The Borrower shall establish fiscal controls and accounting
procedures sufficient to assure proper accounting for all (A) Gross Revenues, operating
expenses, capital expenses, depreciation, reserves, debt issued and outstanding and debt
payments and (B) Project -related costs, Requisitions submitted, WIFIA Loan proceeds
received, payments made by the Borrower with respect to the Project, and other sources of
funding for the Project (including amounts paid from such sources for Project costs so that
audits may be performed to ensure compliance with and enforcement of this Agreement).
The Borrower shall use accounting, audit and fiscal procedures conforming to GAAP,
including, with respect to the WIFIA Loan, accounting of principal and interest payments,
disbursements, prepayments and calculation of interest and principal amounts Outstanding.
(ii) The Borrower shall have a single or program -specific audit
conducted in accordance with 2 C.F.R. Part 200 Subpart F and 31 U.S.C. § 7502 from (and
including) the first Borrower Fiscal Year in which a Disbursement is made under this
Agreement and annually thereafter to the extent required by applicable law, except in all
cases to the extent biennial audits are permitted for the Borrower pursuant to 2 C.F.R. §
200.504 and 31 U.S.C. § 7502(b). Upon reasonable notice, the Borrower shall cooperate
fully in the conduct of any periodic or compliance audits conducted by the WIFIA Lender,
or designees thereof, pursuant to 40 C.F.R. Part 35, 31 U.S.C. § 7503(b), or 31 U.S.C.
§ 6503(h) and shall provide full access to any books, documents, papers or other records
that are pertinent to the Project or the WIFIA Loan, to the WIFIA Lender, or the designee
thereof, for any such project or programmatic audit.
(o) Access; Records.
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(i) So long as the WIFIA Loan or any portion thereof shall remain
Outstanding and until five (5) years after the WIFIA Loan shall have been paid in full
(other than contingent indemnity obligations), the WIFIA Lender shall have the right, upon
reasonable prior notice, to visit, monitor and/or inspect any portion of the Project and its
operations, to examine books of account and records of the Borrower relating to the Project,
to make copies and extracts therefrom at the Borrower's expense, and to discuss the
Borrower's affairs, finances and accounts relating to the Project with, and to be advised as
to the same by, its officers and employees and its independent public accountants (and by
this provision the Borrower irrevocably authorizes its independent public accountants to
discuss with the WIFIA Lender the affairs, finances and accounts of the Borrower, whether
or not any representative of the Borrower is present, it being understood that nothing
contained in this Section 14(o) is intended to confer any right to exclude any such
representative from such discussions), all at such reasonable times and intervals as the
WIFIA Lender may request. The Borrower agrees to pay all out-of-pocket expenses
incurred by the WIFIA Lender in connection with the WIFIA Lender's exercise of its rights
under this Section 14(o) at any time when an Event of Default shall have occurred and be
continuing.
(ii) The Borrower shall maintain and retain all pertinent files relating to
the Project and the WIFIA Loan, as may be necessary for the WIFIA Lender to facilitate
an effective and accurate audit and performance evaluation of the Project, until five (5)
years after the later of the date on which (A) all rights and duties under this Agreement and
under the WIFIA Bond (including payments) have been fulfilled and any required audits
have been performed and (B) any litigation relating to the Project, the WIFIA Loan or this
Agreement is finally resolved or, if the WIFIA Lender has reasonable cause to extend such
date, a date to be mutually agreed upon by the WIFIA Lender and the Borrower. The
Borrower shall provide to the WIFIA Lender in a timely manner all records and
documentation relating to the Project that the WIFIA Lender may reasonably request from
time to time.
(p) Federal Government Funds. If at any time any portion of the Pledged
Revenues shall include any grants, donations, income or other funds received or to be received
from the Federal Government, the Borrower shall cause such Federal Government funds to be
applied to the non -Federal Government Obligations for which they are intended before applying
any other Pledged Revenues to the payment of such Obligations.
Section 15. Negative Covenants. The Borrower covenants and agrees as follows until
the date the WIFIA Bond and all of the obligations of the Borrower under this Agreement (other
than contingent indemnity obligations) are irrevocably paid in full in immediately available funds
and the WIFIA Lender no longer has any commitment to make Disbursements to the Borrower,
unless the WIFIA Lender waives compliance in writing:
(a) Indebtedness.
(i) Program Requirements. The Borrower may not create, incur or
suffer to exist (A) any Obligations (1) the payments with respect to which are senior or
prior in right to the payment by the Borrower of the WIFIA Bond and the other Parity
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Obligations or (2) secured by a Lien on the Pledged Revenues that is senior to the Lien on
the Pledged Revenues in favor of the WIFIA Lender or (B) any Obligations, all or a portion
of the proceeds of which are or will be applied at any time to fund all or any portion of
Total Project Costs, that are secured by a Lien on any assets or property of the Borrower
other than the Pledged Revenues, which may include Pledged Revenues remaining after
the payment of the Parity Obligations.
(ii) Issuance of Additional Obligations. The Borrower shall not issue or
incur any Additional Obligations except in accordance with all requirements and conditions
set forth in the Additional Debt Test.
(b) No Lien Extinguishment or Adverse Amendments. The Borrower shall not,
and shall not permit any Person to, without the prior written consent of the WIFIA Lender, (i)
extinguish the Rate Covenant; (ii) extinguish or impair the Liens on the Pledged Collateral or any
dedicated source of repayment of the WIFIA Loan or any other Obligations (the proceeds of which
are applied to fund Total Project Costs), in each case granted pursuant to the Related Documents;
(iii) amend, modify, replace or supplement any Related Document or permit a waiver of any
provision thereof in a manner that could adversely affect the WIFIA Lender or could reasonably
be expected to result in a Material Adverse Effect; or (iv) terminate, assign or replace any Related
Document in a manner that could adversely affect the WIFIA Lender or could reasonably be
expected to have a Material Adverse Effect.
(c) No Prohibited Liens. Except for Permitted Liens, the Borrower shall not
create, incur, assume or permit to exist any Lien on the Project, the Pledged Collateral, the Gross
Revenues, or the Borrower's respective rights in any of the foregoing and the Pledged Collateral
will be free and clear of any Lien that is of equal rank with or senior to the pledge of the Borrower
created under the Ordinance Documents for the benefit of the WIFIA Lender.
(d) Restricted Payments and Transfers. The Borrower shall not permit Gross
Revenues or other assets of the System, or any funds in any System Accounts or in any other fund
or account held by or on behalf of the Borrower with respect to the System or the Pledged Revenues,
to be paid or transferred or otherwise applied for purposes other than ownership, operation or
maintenance of the System or as otherwise permitted in accordance with the Master Ordinance.
(e) No Prohibited Sale, Lease or Assignment. The Borrower shall not sell, lease,
assign or otherwise transfer its rights in and to the System or a substantial portion of the assets
included in the System, unless such sale, lease, assignment or transfer (i) could not reasonably be
expected to have a Material Adverse Effect and (ii) is made by the Borrower in the ordinary course
of business or is otherwise permitted in accordance with Section 4(h) (Sale, Lease or Disposal of
Property) of the Master Ordinance.
(f) Mergers and Acquisitions. The Borrower shall not, and shall not agree to,
reorganize, consolidate with or merge into another Person unless (i) such reorganization, merger
or consolidation is with or into another entity established by State law and such reorganization,
merger or consolidation is permitted by State law, and in each case, does not adversely affect or
impair to any extent or in any manner (A) the Gross Revenues or elements of the Pledged Collateral
or (B) the availability of the Gross Revenues for the payment and security of the obligations of the
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Borrower under this Agreement; and (ii) the Borrower provides to the WIFIA Lender notice of
such reorganization, consolidation or merger in accordance with Part E of Schedule V (Reporting
Requirements) and such other information concerning such reorganization, consolidation or
merger as shall have been reasonably requested by the WIFIA Lender.
(g) Hedging. Other than interest rate hedging transactions permitted under the
Master Ordinance, the Borrower shall not enter into any swap or hedging transaction, including
any such transaction that is speculative or creates extraordinary leverage or risk, without the prior
written consent of the WIFIA Lender.
Section 16. Reporting Requirements. The Borrower agrees to comply with each of the
reporting requirements set out in Schedule V (Reporting Requirements), unless otherwise agreed
or waived by the WIFIA Lender in writing.
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
Section 17. Events of Default and Remedies.
(a) An "Event of Default" shall exist under this Agreement if any of the
following occurs; provided, that the occurrence of an event set forth in sub -clauses (v) through
(and including) (ix) below shall not constitute an Event of Default under this Agreement until the
WIFIA Lender has provided a notice of such Event of Default to the Borrower; provided, further,
that nothing in this paragraph is intended to limit any obligation of the Borrower hereunder,
including any obligation to cure any event or condition contemplated under this Section 17(a):
(i) Payment Default. The Borrower shall fail to pay when due any part
of the principal amount of or interest on the WIFIA Loan (including WIFIA Debt Service
required to have been paid pursuant to the provisions of Section 8 (Repayments)), and such
failure continues for a period of five (5) days, when and as the payment thereof shall be
required under this Agreement or the WIFIA Bond or on the Final Maturity Date (each
such failure, a "Payment Default").
(ii) Occurrence of a Bankruptcy Related Event. A Bankruptcy Related
Event shall occur with respect to the Borrower.
(iii) Acceleration of Obligations. Any acceleration shall occur of the
maturity of any Obligation, or any such Obligation shall not be paid in full upon the final
maturity thereof.
(iv) Invalidity of WIFIA Loan Documents. (A) Any WIFIA Loan
Document ceases to be in full force and effect (other than as a result of the termination
thereof in accordance with its terms) or becomes void, voidable, illegal or unenforceable,
or the Borrower contests in any manner the validity or enforceability of any WIFIA Loan
Document to which it is a party or denies it has any further liability under any WIFIA Loan
Document to which it is a party, or purports to revoke, terminate or rescind any WIFIA
Loan Document to which it is a party; (B) any Ordinance Document ceases (other than as
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expressly permitted thereunder) to be effective or to grant a valid and binding security
interest on any material portion of the Pledged Collateral other than as a result of actions
or a failure to act by, and within the control of, the WIFIA Lender, and with the priority
purported to be created thereby; or (C) any event occurs that results in the impairment in
the validity, enforceability, perfection or priority of the WIFIA Lender's security interest
in the Pledged Collateral.
(v) Covenant Default. The Borrower shall fail to observe or perform
any covenant, agreement or obligation of the Borrower under this Agreement, the WIFIA
Bond or any other WIFIA Loan Document (other than in the case of any Payment Default
or any Development Default), and such failure shall not be cured within thirty (30) days
after the earlier to occur of (A) receipt by the Borrower from the WIFIA Lender of written
notice thereof or (B) the Borrower's knowledge of such failure; provided, that if such
failure is capable of cure but cannot reasonably be cured within such thirty (30) day cure
period, then such thirty (30) day cure period shall be extended by up to one hundred fifty
(150) additional days, if and so long as (x) within such thirty (30) day cure period the
Borrower shall commence actions reasonably designed to cure such failure and shall
diligently pursue such actions until such failure is cured and (y) such failure is cured within
one hundred eighty (180) days of the date specified in either (A) or (B) above, as applicable;
provided, however, that with respect to a failure to comply with the Rate Covenant, the
cure period shall be the longer of (x) one hundred eighty (180) days as described above or
(y) the relevant cure period provided in the Master Ordinance (if applicable).
(vi) Misrepresentation Default. Any of the representations, warranties
or certifications of the Borrower made in or delivered pursuant to the WIFIA Loan
Documents (or in any certificates delivered by the Borrower in connection with the WIFIA
Loan Documents) shall prove to have been false or misleading in any material respect when
made or deemed made; provided, that no Event of Default shall be deemed to have occurred
under this Section 17(a)(vi) if and so long as (A) such misrepresentation is not intentional,
(B) such misrepresentation is not a misrepresentation in respect of Section 12(g) (Security
Interests), Section 12(h) (No Debarment), Section 12(i) (No Lobbying), or Section 12(j)
(Compliance with Laws), (C) in the reasonable determination of the WIFIA Lender, such
misrepresentation has not had, and would not reasonably be expected to result in, a Material
Adverse Effect, (D) in the reasonable determination of the WIFIA Lender, the underlying
issue giving rise to the misrepresentation is capable of being cured and (E) the underlying
issue giving rise to the misrepresentation is cured by the Borrower within thirty (30) days
after the date on which the Borrower first became aware (or reasonably should have
become aware) of such misrepresentation.
(vii) Enforcement of Related Documents. Any holder of an Obligation
under a Related Document exercises remedies permitted thereunder for an event of default
that has occurred and is continuing (and has not been cured or waived by the expiration of
any applicable grace period), in respect of the performance of any covenant, agreement or
obligation of the Borrower under such Related Document.
(viii) Material Adverse Judgment. Any final, non -appealable judgment
related to the Pledged Collateral that results in the impairment of (A) the Borrower's ability
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to comply with any of its payment obligations under the WIFIA Bond or this Agreement
or (B) the existence, priority or perfection (if applicable) of the WIFIA Lender's security
interest in the Pledged Collateral.
(ix) Development Default. A Development Default shall occur.
(b) Upon the occurrence of any Bankruptcy Related Event, all obligations of
the WIFIA Lender hereunder with respect to the Disbursement of any undisbursed amounts of the
WIFIA Loan shall automatically be deemed terminated.
(c) Upon the occurrence of any Event of Default, the WIFIA Lender, by written
notice to the Borrower, may exercise any or all of the following remedies:
(i) the WIFIA Lender may suspend or terminate all of its obligations
hereunder with respect to the Disbursement of any undisbursed amounts of the WIFIA
Loan;
(ii) the WIFIA Lender may cease permitting interest on the WIFIA Loan
to be capitalized (if applicable);
(iii) the WIFIA Lender may apply the Default Rate provisions of Section
6 (Interest Rate);
(iv) the WIFIA Lender may suspend or debar the Borrower from further
participation in any Federal Government program administered by the WIFIA Lender and
notify other departments and agencies of such default; and
(v) the WIFIA Lender shall be entitled and empowered to institute any
actions or proceedings at law or in equity for the collection of any sums due and unpaid
hereunder or under the WIFIA Bond or the other WIFIA Loan Documents, and may
prosecute any such judgment or final decree against the Borrower and collect in the manner
provided by law out of the property of the Borrower the moneys adjudged or decreed to be
payable, and the WIFIA Lender shall have all of the rights and remedies of a creditor,
including all rights and remedies of a secured creditor under the Uniform Commercial Code
(if applicable), and may take such other actions at law or in equity as may appear necessary
or desirable to collect all amounts payable by the Borrower under this Agreement, the
WIFIA Bond or the other WIFIA Loan Documents then due and thereafter to become due,
or to enforce performance and observance of any obligation, agreement or covenant of the
Borrower under this Agreement, the WIFIA Bond or the other WIFIA Loan Documents;
provided, however, that the WIFIA Lender shall never have the right to demand payment
out of funds raised or to be raised by taxation, or from any source other than those specified
in the Master Ordinance or the WIFIA Supplemental Ordinance.
(d) If a right of acceleration is or has been granted for the benefit of any holder
of Obligations and such Obligations have been accelerated, then the WIFIA Lender shall have the
right to declare the unpaid principal amount of the WIFIA Bond to be, and the same shall thereupon
forthwith become, immediately due and payable, together with the interest accrued thereon and all
fees, costs, expenses, indemnities and other amounts payable under this Agreement, the WIFIA
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Bond or the other WIFIA Loan Documents, all without presentment, demand, notice, declaration,
protest or other requirements of any kind, all of which are hereby expressly waived.
(e) No action taken pursuant to this Section 17 shall (i) relieve the Borrower
from its obligations pursuant to this Agreement, the WIFIA Bond or the other WIFIA Loan
Documents, all of which shall survive any such action, or (ii) limit the WIFIA Lender's rights
under the Ordinance Documents or applicable law.
ARTICLE VII
MISCELLANEOUS
Section 18. Disclaimer of Warranty. The WIFIA Lender makes no warranty or
representation, either express or implied, as to the value, design, condition, merchantability or
fitness for a particular purpose or fitness for use of the Project or any portion thereof or any other
warranty with respect thereto. In no event shall the WIFIA Lender be liable for any incidental,
indirect, special or consequential damages incidental to or arising out of this Agreement or the
System (including the Project) or the existence, furnishing, functioning or use of the Project or any
item or products or services provided for in this Agreement.
Section 19. No Personal Recourse. No official, employee or agent of the WIFIA Lender
or the Borrower or any individual executing this Agreement or any of the other WIFIA Loan
Documents shall be personally liable on this Agreement or such other WIFIA Loan Documents by
reason of the issuance, delivery or execution hereof or thereof.
Section 20. No Third -Party Rights. The parties hereby agree that this Agreement
creates no third -party rights against the Borrower, the Federal Government, or the WIFIA Lender,
solely by virtue of the WIFIA Loan, and that no third -party creditor of the Borrower shall have
any right against the WIFIA Lender with respect to the WIFIA Loan made pursuant to this
Agreement.
Section 21. Borrower's Authorized Representative. The Borrower shall at all times
have appointed a Borrower's Authorized Representative by designating such Person or Persons
from time to time to act on the Borrower's behalf pursuant to a written certificate furnished to the
WIFIA Lender and the Servicer, if any, containing the specimen signature or signatures of such
Person or Persons and signed by the Borrower.
Section 22. WIFIA Lender's Authorized Representative. The WIFIA Lender hereby
appoints the Director of the WIFIA Program, whose notice details are set forth below in Section
31 (Notices), to serve as the WIFIA Lender's Authorized Representative under this Agreement
until such time as a successor or successors shall have been appointed. Thereafter, the successor
in office shall serve as the WIFIA Lender's Authorized Representative. The WIFIA Lender shall
provide notice to the Borrower within a reasonable time period following the succession.
Section 23. Servicer. The WIFIA Lender may from time to time designate another
entity or entities to perform, or assist the WIFIA Lender in performing, the duties of the Servicer
or specified duties of the WIFIA Lender under this Agreement and the WIFIA Bond. The WIFIA
Lender shall give the Borrower written notice of the appointment of any successor or additional
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Servicer and shall enumerate the duties or any change in duties to be performed by any Servicer.
Any references in this Agreement to the WIFIA Lender shall be deemed to be a reference to the
Servicer with respect to any duties which the WIFIA Lender shall have delegated to such Servicer.
The WIFIA Lender may at any time assume the duties of any Servicer under this Agreement and
the WIFIA Bond. The Borrower shall cooperate and respond to any reasonable request of the
Servicer for information, documentation or other items reasonably necessary for the performance
by the Servicer of its duties hereunder.
Section 24. Amendments, Waivers and Termination No amendment, modification,
termination, or waiver of any provision of this Agreement or the WIFIA Bond shall in any event
be effective without the prior written consent of each of the parties hereto. Notwithstanding the
foregoing sentence, if the first Disbursement of the WIFIA Loan has not occurred on or prior to
the Final Disbursement Date, the WIFIA Lender or the Borrower may terminate this Agreement
upon no less than ten (10) Business Days' prior written notice to the other party. Once terminated,
this Agreement may not be reinstated.
Section 25. Governing Law. This Agreement shall be governed by the federal laws of
the United States of America if and to the extent such federal laws are applicable and the internal
laws of the State, if and to the extent such federal laws are not applicable.
Section 26. Severability. In case any provision in or obligation under this Agreement
shall be invalid, illegal, or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of such provision or obligation in any
other jurisdiction, shall not in any way be affected or impaired thereby.
Section 27. Successors and Assigns. This Agreement shall be binding upon the parties
hereto and their respective permitted successors and assigns and shall inure to the benefit of the
parties hereto and their permitted successors and assigns. Neither the Borrower's rights or
obligations hereunder or under the WIFIA Bond nor any interest herein or therein may be assigned
or delegated by the Borrower without the prior written consent of the WIFIA Lender.
Section 28. Remedies Not Exclusive. No remedy conferred herein or in any other
WIFIA Loan Document or reserved to the WIFIA Lender is intended to be exclusive of any other
available remedy or remedies, but each and every such remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or under the other WIFIA Loan Documents or
now or hereafter existing at law or in equity or by statute.
Section 29. Delay or Omission Not Waiver. No delay or omission of the WIFIA Lender
to exercise any right or remedy provided hereunder or under any other WIFIA Loan Document
upon a default of the Borrower (except a delay or omission pursuant to a written waiver) shall
impair any such right or remedy or constitute a waiver of any such default or acquiescence therein.
Every right and remedy given by this Agreement or under the other WIFIA Loan Documents or
by law to the WIFIA Lender may be exercised from time to time, and as often as may be deemed
expedient by the WIFIA Lender.
Section 30. Counterparts. This Agreement and any amendments, waivers, consents or
supplements hereto or in connection herewith may be executed in any number of counterparts and
43
3971777.11 048026
by the different parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts together shall constitute one and
the same instrument; signature pages may be detached from multiple separate counterparts and
attached to a single counterpart so that all signature pages are physically attached to the same
document. Electronic delivery of an executed counterpart of a signature page of this Agreement or
of any document or instrument delivered in connection herewith in accordance with Section 31
(Notices) shall be effective as delivery of an original executed counterpart of this Agreement or
such other document or instrument, as applicable.
Section 31. Notices.
(a) All notices, requests, or communication hereunder shall be given in writing.
(b) Notices to the WIFIA Lender should be made by (i) email to the email
address noted below for the WIFIA Lender or (ii) submission through another electronic medium
or transmission system as designated by the WIFIA Lender in accordance with this Section, unless
otherwise instructed by the WIFIA Lender:
If to WIFIA Lender: Environmental Protection Agency
WJC-E 7334A
1200 Pennsylvania Avenue NW
Washington, D.C. 20460
Attention: WIFIA Director
Email: WIFIA_Portfolio@epa.gov
(c) Notices to the Borrower should be made by (i) nationally recognized courier
service, (ii) hand delivery, (iii) email, to the email address noted below for the Borrower, or (iv)
another electronic medium designated by the Borrower in accordance with this Section, unless
otherwise instructed by the Borrower's Authorized Representative:
If to Borrower: The Borrower notice details set forth in Part G of
Schedule I (WIFIA Loan Specific Terms)
(d) Notices to the Paying Agent/Registrar should be made by (i) nationally
recognized courier service, (ii) hand delivery, (iii) email, to the email address noted below for the
Paying Agent/Registrar, or (iv) another electronic medium designated by the Paying
Agent/Registrar in accordance with this Section, unless otherwise instructed by an authorized
representative of the Paying Agent/Registrar:
If to Paying The Paying Agent/Registrar notice details set forth in
Agent/Registrar: Part G of Schedule I (WIFIA Loan Specific Terms)
(e) Each such notice, request or communication shall be effective (x) if
delivered by hand or by nationally recognized courier service, when delivered at the address
specified in this Section 31 (or in accordance with the latest unrevoked written direction from the
receiving party), and (y) if given by email or other electronic method, when such email is delivered
to the email address specified in this Section 31 or submitted to the electronic medium as directed
44
3971777.11 048026
by the receiving party, in each case with the sender's receipt of an acknowledgement from the
intended recipient (such as by a "read receipt," return email, or other written acknowledgement)
(or in accordance with the latest unrevoked written direction from the receiving party); provided,
that notices received on a day that is not a Business Day or after 5:00 p.m. Eastern Time on a
Business Day will be deemed to be effective on the next Business Day.
Section 32. Indemnification. The Borrower shall, to the extent permitted by law,
including the Texas Constitution and State law, indemnify the WIFIA Lender, the Servicer (if any),
and any official, employee, agent, advisor or representative of the WIFIA Lender (each such
Person being herein referred to as an "Indemnitee") against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities, fines, penalties, costs and expenses (including
the fees, charges and disbursements of any counsel for any Indemnitee and the costs of
environmental remediation), whether known, unknown, contingent or otherwise, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a result of (a) the execution,
delivery and performance of this Agreement, any Construction Contract, or any Related Document,
(b) the WIFIA Loan or the use of the proceeds thereof, or (c) the violation of any law, rule,
regulation, order, decree, judgment or administrative decision relating to the environment, the
preservation or reclamation of natural resources, the management, release or threatened release of
any hazardous material or to health and safety matters; in each case arising out of or in direct
relation to the Project; provided, that such indemnity shall not, as to any Indemnitee, be available
to the extent that such losses, claims, damages, liabilities, fines, penalties, costs or related expenses
are determined by a court of competent jurisdiction by final and non -appealable judgment to have
resulted from or arisen out of the negligence or willful misconduct of such Indemnitee. In case
any action or proceeding is brought against an Indemnitee by reason of any claim with respect to
which such Indemnitee is entitled to indemnification hereunder, the Borrower shall be entitled, at
its expense, to participate in the defense thereof; provided, that such Indemnitee has the right to
retain its own counsel, at the Borrower's expense, and such participation by the Borrower in the
defense thereof shall not release the Borrower of any liability that it may have to such Indemnitee.
Any Indemnitee against whom any indemnity claim contemplated in this Section 32 is made shall
be entitled, after consultation with the Borrower and upon consultation with legal counsel wherein
such Indemnitee is advised that such indemnity claim is meritorious, to compromise or settle any
such indemnity claim. Any such compromise or settlement shall be binding upon the Borrower
for purposes of this Section 32. Nothing herein shall be construed as a waiver of any legal
immunity that may be available to any Indemnitee. To the extent permitted by applicable law,
neither the Borrower nor the WIFIA Lender shall assert, and each of the Borrower and the WIFIA
Lender hereby waives, any claim against any Indemnitee or the Borrower, respectively, on any
theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this Agreement, any
Construction Contract, or any Related Document, the other transactions contemplated hereby and
thereby, the WIFIA Loan or the use of the proceeds thereof, provided, that nothing in this sentence
shall limit the Borrower's indemnity obligations to the extent such damages are included in any
third party claim in connection with which an Indemnitee is entitled to indemnification hereunder.
All amounts due to any Indemnitee under this Section 32 shall be payable promptly upon demand
therefor. The obligations of the Borrower under this Section 32 shall survive the payment or
prepayment in full or transfer of the WIFIA Loan, the enforcement of any provision of this
Agreement or the other Related Documents, any amendments, waivers (other than amendments or
waivers in writing with respect to this Section 32) or consents in respect hereof or thereof, any
45
3971777.11 048026
Event of Default, and any workout, restructuring or similar arrangement of the obligations of the
Borrower hereunder or thereunder.
Section 33. Sale of WIFIA Loan. The WIFIA Lender shall not sell the WIFIA Loan at
any time prior to the later of (a) the Substantial Completion Date and (b) other than with respect
to a sale or transfer to another governmental entity within the Federal Government, the Final
Disbursement Date. After such date, the WIFIA Lender may sell the WIFIA Loan to another entity
or reoffer the WIFIA Loan into the capital markets only in accordance with the provisions of this
Section 33. Such sale or reoffering shall be on such terms as the WIFIA Lender shall deem
advisable. However, in making such sale or reoffering the WIFIA Lender shall not change the
terms and conditions of the WIFIA Loan without the prior written consent of the Borrower in
accordance with Section 24 (Amendments, Waivers and Termination). Prior to any sale or
reoffering of the WIFIA Loan, the WIFIA Lender shall provide reasonable written notice to the
Borrower of the WIFIA Lender's intention to consummate such a sale or reoffering. The provision
of any notice pursuant to this Section 33 shall neither (x) obligate the WIFIA Lender to sell nor
(y) provide the Borrower with any rights or remedies in the event the WIFIA Lender, for any
reason, does not sell the WIFIA Loan.
Section 34. Effectiveness. This Agreement shall be effective on the Effective Date.
Section 35. Release of Lien. Upon the irrevocable payment in full in immediately
available funds by the Borrower of the WIFIA Loan Balance, together with all accrued interest,
fees and expenses with respect thereto, the WIFIA Lender shall cancel and discharge the Lien on
the Pledged Collateral and surrender the WIFIA Bond to the Paying Agent/Registrar in accordance
with Section 9(b) (General Prepayment Instructions).
Section 36. Survival. The indemnification requirements of Section 32 (Indemnification),
the reporting and record keeping requirements of Section 14(o) (Access; Records) and the payment
requirements of Section 10 (Fees and Expenses) shall survive the termination of this Agreement
as provided in such Sections.
Section 37. Integration. This Agreement, together with the other WIFIA Loan
Documents, constitutes the entire contract between the parties relating to the subject matter hereof
and supersedes any and all previous agreements and understandings, oral or written, relating to the
subject matter hereof.
[The remainder of this page intentionally left blank; signature pages immediately follow.)
46
3971777.11 048026
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their respective officers thereunto duly authorized as of the date first
written above.
CITY OF FORT WORTH, TEXAS,
by its authorized representative
By:
Name:
Title:
[Signature Page to City of Fort Worth, Texas — Mary's Creek Water Reclamation Facility Project —
WIFIA Loan Agreement]
3971777.11 048026
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, acting by and
through the Administrator of the
Environmental Protection Agency
By:
Name: Lee M. Zeldin
Title: Administrator
[Signature Page to City of Fort Worth, Texas — Mary's Creek Water Reclamation Facility Project —
WIFIA Loan Agreement]
3971777.11 048026
SCHEDULE I
WIFIA LOAN SPECIFIC TERMS
No.
WIFIA Loan Specific Term
Item
PART A. Key Borrower Metrics
1.
Effective Date
January 23, 2026.
2.
Borrower
City of Fort Worth, Texas, a Legal Entity duly organized
and existing under the laws of the State.
3.
Legal Entity
A home -rule city operating under a home -rule charter
adopted pursuant to Section 5 of Article 11 of the
Constitution of the State of Texas.
4.
State
State of Texas.
5.
Borrower FEIN
75-6000528.
6.
Borrower UEI
ENS6MKS1ZL18.
7.
Initial Borrower Fiscal Year
The fiscal year of the Borrower commencing on October
1 of any given calendar year and ending on September
30 of the immediately succeeding calendar year.
8.
Application Receipt Date
December 17, 2024.
9.
WIFIA CUSIP Number
3495156E1, as the CUSIP number for the WIFIA Bond
for purposes of monitoring through EMMA.
10.
System
"System," as defined in the Master Ordinance, means
and includes the Borrower's existing combined water
and sewer system, together with all future extensions,
improvements, enlargements, and additions thereto,
including, to the extent permitted by law, storm sewer
and drainage, and all replacements thereof; provided
that, notwithstanding the foregoing, and to the extent
now or hereafter authorized or permitted by law, the term
System shall not include any water, sewer, or, if
applicable, drainage facilities which are declared by the
Borrower not to be a part of the System and which are
hereafter acquired or constructed by the Borrower with
the proceeds from the issuance of "Special Facilities
Debt", which term is hereby defined as being special
revenue obligations of the Borrower which are not
secured by or payable from the Pledged Revenues, but
which are secured by and payable solely from special
contract revenues, or payments received from the
Schedule I-1
3971777.11 048026
No.
Item
WIFIA Loan Specific Term
i
Borrower or any other legal entity, or any combination
thereof, in connection with such facilities; and such
revenues or payments shall not be considered as or
constitute Gross Revenues of the System, unless and to
the extent otherwise provided in the ordinance or
ordinances authorizing the issuance of such "Special
Facilities Debt".
11.
Gross Revenues
"Gross Revenues," as defined in the Master Ordinance,
means all revenues, income, and receipts derived or
received by the city from the operation and ownership of
the System, including the interest income from the
investment or deposit of money in any Fund created by
the Master Ordinance or a Supplemental Ordinance or
maintained by the Borrower in connection with the
System, other than those amounts subject to payment to
the United States of America as rebate pursuant to
section 148 of the Code. The term "Gross Revenues",
however, does not include impact fees charged by the
System under authority of Chapter 395, Texas Local
Government Code, for the construction of capital
improvements or facility expansions pursuant to a capital
improvement plan prepared in accordance with the
provisions of Chapter 395, Texas Local Government
Code.
12.
Paying Agent/Registrar
BOKF, NA, a national banking association organized
and existing under the laws of the United States of
America, and any successor thereto appointed as paying
agent/registrar for the WIFIA Bond pursuant to the
WIFIA Supplemental Ordinance.
13.
Paying Agent/Registrar
Location
Dallas, Texas
14.
Paying Agent/Registrar
Agreement
The Master Paying Agent/Registrar Agreement, dated as
of November 22, 2011, by and between the Borrower
and BOKF, NA, as the initial Paying Agent/Registrar, as
amended and renewed from time to time, including most
recently by the "Sixth Amendment and Twelfth Renewal
of City Secretary Contract No. 42607 — Master Paying
Agent/Registrar Agreement" dated October 1, 2025.
Schedule I-2
3971777.11 048026
No.
Item
WIFIA Loan Specific Term
PART B. Key Project Metrics
•
15.
Project
The project is the Mary's Creek Water Reclamation
Facility Project, located at the Project Location, and
consists of the design and construction of the Mary's
Creek Water Reclamation Facility, including the design
and construction of related lift stations, force mains and
associated reasonably necessary sewer infrastructure.
16.
Project Location
City of Fort Worth, Texas.
17.
Projected Substantial
Completion Date
December 31, 2029, as such date may be adjusted in
accordance with Part C of Schedule V (Reporting
Requirements).
18.
Development Default Date
December 31, 2031.
19.
NEPA Determination
Finding of No Significant Impact for the Project issued
by EPA on June 10, 2025 in accordance with NEPA.
20.
Reserved
Not Applicable.
I
PART C. Key Loan Metrics
21.
Maximum Principal Amount
Principal amount up to $347,655,441 (excluding interest
that is capitalized in accordance with this Agreement).
22.
WIFIA Interest Rate
[ 1% per annum.
23.
Default Rate
Interest rate equal to the sum of (a) the WIFIA Interest
Rate plus (b) 200 basis points.
24.
Interest Payment Date
Each February 15 and August 15, beginning on the Debt
Service Payment Commencement Date.
25.
Capitalized Interest Period
The period from (and including) the first Disbursement
to (but excluding) the date that is six (6) months prior to
the first Payment Date reflected in the WIFIA Loan
Amortization Schedule, subject to earlier termination as
set forth in Section 8(a)(iii) (Payment of WIFIA Debt
Service).
26.
Capitalized Interest Date
Each February 15 and August 15 occurring on or after
the date of the first Disbursement and through (and
including) the day immediately following the end of the
Capitalized Interest Period, except that, in the event of
Schedule I-3
3971777.11 048026
No.
Item
WIFIA Loan Specific Term
i
an earlier termination of the Capitalized Interest Period
pursuant to Section 8(a)(iii) (Payment of WIFIA Debt
Service), the final Capitalized Interest Date shall be the
date immediately following such termination.
27.
Interest Only Period
The period commencing from (and including) the Debt
Service Payment Commencement Date and ending on
(but excluding) the first Principal Payment Date (or on
such earlier date as all amounts due or to become due to
the WIFIA Lender under the WIFIA Loan Agreement
have been irrevocably paid in full in cash).
28.
Principal Payment Date
Each February 15, beginning on February 15, 2035
(which initial Principal Payment Date may be adjusted
by a revised WIFIA Loan Amortization Schedule in
accordance with Section 8(c) (Adjustments to WIFIA
Loan Amortization Schedule)).
29.
Final Maturity Date
The earliest of (a) February 15, 2059; (b) the date on
which the maturity of the WIFIA Loan and
corresponding WIFIA Bond have been accelerated or
subject to mandatory redemption or prepayment (as the
case may be) prior to maturity thereof; and (c) the
Principal Payment Date immediately preceding the date
that is thirty-five (35) years following the Substantial
Completion Date.
PART D. Key Security Metrics
30.
Lien priority
Senior lien on the Pledged Revenues (at parity with the
Liens thereon securing the other Parity Obligations and
senior to the Liens thereon securing the Subordinated
Debt).
31.
Springing lien
Not Applicable.
32.
Dedicated revenue source
Pledged Revenues; provided, that any repayment of the
WIFIA Loan from Pledged Revenues shall not be repaid
from any grants, donations, income or other funds
received or to be received from the Federal Government.
"Pledged Revenues" means (1) the Net Revenues, plus
(2) any additional revenues, income, receipts, or other
resources, including, without limitation, any grants,
donations, or income received or to be received from the
Schedule I-4
3971777.11 048026
No.
Item
WIFIA Loan Specific Term
i
United States Government, or any other public or private
source, whether pursuant to an agreement or otherwise,
which hereafter are pledged to the payment of the Parity
Obligations.
"Net Revenues" shall have the meaning set forth in
Annex A attached hereto.
33.
Pledged Collateral
The WIFIA Loan (and corresponding WIFIA Bond)
shall be secured by a first Lien on and pledge of the
Pledged Revenues, including such revenues within the
System Fund created by the Master Ordinance, in
accordance with the Master Ordinance and the WIFIA
Supplemental Ordinance; provided, that such pledge
shall exclude any grants, donations, income or other
funds received or to be received from the Federal
Government.
34.
System Accounts
The System Fund, the Debt Service Fund, the Reserve
Fund, and all other funds, accounts and subaccounts
created pursuant to the Ordinance Documents, except to
the extent such other fund or account shall be pledged
solely for the payment of a series of Obligations other
than the WIFIA Bond in accordance with the provisions
of the Master Ordinance.
35.
System Fund
"City of Fort Worth, Texas Water and Sewer System
Revenue Fund" established pursuant to Section 5
(System Fund) of the Master Ordinance.
36.
Debt Service Fund
"City of Fort Worth, Texas Water and Sewer System
Parity Obligations Debt Service Fund" established
pursuant to Section 6 (Debt Service Fund) of the Master
Ordinance.
37.
WIFIA Debt Service Account
Not Applicable.
38.
WIFIA Debt Service Reserve
Account
Not Applicable.
39.
Rate Covenant
The rate covenant set forth in Section 3 (Rate Covenant)
of the Master Ordinance, a copy of which as of the
Effective Date is attached hereto for reference as
Annex A.
Schedule I-5
3971777.11 048026
No.
Item
i
WIFIA Loan Specific Term
i
40.
Additional Debt Test
The requirements and conditions set forth in Section 8
(Issuance of Additional Obligations) of the Master
Ordinance, a copy of which as of the Effective Date is
attached hereto as Annex B.
41.
Flow of Funds
The requirements and conditions specified in Sections 5
(System Fund), 6 (Debt Service Fund) and 7 (Reserve
Fund) of the Master Ordinance, a copy of which as of the
Effective Date is set forth in Annex C.
42.
Reserved
Not Applicable.
PART E. Other Key WIFIA Loan Documents
43.
WIFIA Bond
The bond issued and delivered by the Borrower in
substantially the form of Exhibit A (Form of WIFIA
Bond).
44.
Master Ordinance
That certain Ordinance No. 10968 (including Exhibit
"A" (Definitions) thereto) adopted by the City Council
of the Borrower on December 10, 1991, establishing the
Borrower's master water and sewer system revenue
financing program, as amended from time to time.
45.
WIFIA Supplemental
Ordinance
That certain Ordinance No. [] adopted by the City
Council of the Borrower on January 13, 2026,
authorizing the execution, delivery and performance by
the Borrower of this Agreement, the WIFIA Bond, and
certain related actions by the Borrower in connection
with the issuance of the WIFIA Loan.
46.
WIFIA Term Sheet
WIFIA term sheet, dated as of the Effective Date,
between the Borrower and the WIFIA Lender.
47.
Reserved
Not Applicable.
PART F. Fees
ei
48.
Servicing Set -Up Fee
A servicing set-up fee equal to $26,150.
49.
Construction Period Servicing
Fee
An annual construction period servicing fee equal to
$26,150.
50.
Initial Construction Period
Servicing Fee
The initial Construction Period Servicing Fee in a pro -
rated amount equal to $23,970.
Schedule I-6
3971777.11 048026
No.
Item
WIFIA Loan Specific Term
51.
Operating Period Servicing
Fee
An annual operating period servicing fee equal to
$9,810.
PART G. Borrower Related Notices
52.
Borrower notice details
City of Fort Worth, Texas
100 Fort Worth Trail
Fort Worth, Texas 76102
Attention: Alex Laufer
Email- Alex.Laufer@fortworthtexas.gov
53.
Paying Agent/Registrar notice
details
BOKF, NA
5956 Sherry Lane, Suite 900
Dallas, Texas 75225
Attention: Caresse Tankersley
Email: ctankersley@bokf.com
Schedule I-7
3971777.11 048026
ANNEX A
RATE COVENANT
Reference is made to Section 3 (Rate Covenant) of the Master Ordinance, and the requirements
and conditions contained therein as of the Effective Date, which are set forth verbatim below.
Capitalized terms used below in this Annex A shall have the respective meanings assigned to such
terms in the Master Ordinance.
Section 3. RATE COVENANT. The City will fix, establish, maintain and collect such
rates, charges and fees for the use and availability of the System at all times as are necessary to
produce Gross Revenues and other Pledged Revenues sufficient (1) to pay all current Operating
Expenses, (2) to produce Net Revenues for each Fiscal Year at least equal to the Annual Debt
Service Requirements during such Fiscal Year of the then Outstanding Parity Obligations, and
(3) to pay all other financial obligations of the System reasonably anticipated to be paid from Gross
Revenues.
"Annual Debt Service Requirements" means, for any Fiscal Year, the principal of and
interest on all Parity Obligations coming due at Maturity or Stated Maturity (or that could come due
on demand of the owner thereof other than by acceleration or other demand conditioned upon default
by the City on such Debt, or be payable in ,respect of any required purchase of such Debt by the City)
in such Fiscal Year, and, for such purposes, any one or more of the following rules shall apply at the
election of the City:
(1) Committed Take Out. If the City has entered into a Credit Agreement
constituting a binding commitment within normal commercial practice, from any bank,
savings and loan association, insurance company, or similar institution to discharge any of
its Funded Debt at its Stated Maturity (or, if due on demand, at any date on which demand
may be made) or to purchase any of its Funded Debt at any date on which such Debt is
subject to required purchase, all under arrangements whereby the City's obligation to repay
the amounts advanced for such discharge or purchase constitutes Funded Debt, then the
portion of the Funded Debt committed to be discharged or purchased shall be excluded from
such calculation and the principal of and interest on the Funded Debt incurred for such
discharging or purchase that would be due in the Fiscal Year for which the calculation is
being made, if incurred at the Stated Maturity or purchase date of the Funded Debt to be
discharged or purchased, shall be added;
(2) Balloon Debt. If the principal (including the accretion of interest resulting
from original issue discount or compounding of interest) of any series or issue of Funded
Debt due (or payable in respect of any required purchase of such Funded Debt by the City)
in any Fiscal Year either is equal to at least 25% of the total principal (including the
accretion of interest resulting from original issue discount or compounding of interest) of
such Funded Debt or exceeds by more than 50% the greatest amount of principal of such
series or issue of Funded Debt due in any preceding or succeeding Fiscal Year (such
principal due in such Fiscal Year for such series or issue of Funded Debt being referred to
herein and throughout this Exhibit A as "Balloon Debt"), the amount of principal of such
Balloon Debt taken into account during any Fiscal Year shall be equal to the debt service
Annex A-1
3971777.11 048026
calculated using the original principal amount of such Balloon Debt amortized over the
Term of Issue on a level debt service basis at an assumed interest rate equal to the rate
borne by such Balloon Debt on the date of calculation;
(3) Consent Sinking Fund. In the case of Balloon Debt, if a Designated
Financial Officer shall deliver to the City a certificate providing for the retirement of (and
the instrument creating such Balloon Debt shall permit the retirement of), or for the
accumulation of a sinking fund for (and the instrument creating such Balloon Debt shall
permit the accumulation of a sinking fund for), such Balloon Debt according to a fixed
schedule stated in such certificate ending on or before the Fiscal Year in which such
principal (and premium, if any) is due, then the principal of (and, in the case of retirement,
or to the extent provided for by the sinking fund accumulation, the premium, if any, and
interest and other debt service charges on) such Balloon Debt shall be computed as if the
same were due in accordance with such schedule, provided that this clause (3) shall apply
only to Balloon Debt for which the installments previously scheduled have been paid or
deposited to the sinking fund established with respect to such Debt on or before the times
required by such schedule; and provided further that this clause (3) shall not apply where
the City has elected to apply the rule set forth in clause (2) above;
(4) Prepaid Debt. Principal of and interest on Parity Obligations, or portions
thereof, shall not be included in the computation of the Annual Debt Service Requirements
for any Fiscal Year for which such principal or interest are payable from funds on deposit
or set aside in trust for the payment thereof at the time of such calculations (including
without limitation capitalized interest and accrued interest so deposited or set aside in trust)
with a financial institution acting as fiduciary with respect to the payment of such Debt;
(5) Variable Rate. As to any Parity Obligation that bears interest at a variable
interest rate which cannot be ascertained at the time of calculation of the Annual Debt
Service Requirement then, at the option of the City, either (1) an interest rate equal to the
average rate borne by such Parity Obligations (or by comparable debt in the event that
such Parity Obligations has not been outstanding during the preceding 24 months) for any
24 month period ending within 30 days prior to the date of calculation, or (2) an interest
rate equal to the 30-year Tax -Exempt Revenue Bond Index (as most recently published
in The Bond Buyer), shall be presumed to apply for all future dates, unless such index is
no longer published in The Bond Buyer, in which case an index of tax-exempt revenue
bonds with maturities of at least 20 years which is published in a financial newspaper or
journal with national circulation may be used for this purpose;
(6) Commercial Paper. With respect to any Parity Obligations issued in the
form of commercial paper, the interest on such Parity Obligations shall be calculated in
the manner provided in clause (5) of this definition and the maturity schedule shall be
calculated in the manner provided in clause (2) of this definition; and
(7) Credit Agreement Payments. If the City has entered into a Credit Agreement
in connection with an issue of Debt, payments due under the Credit Agreement, from either
the City or the Credit Provider, shall be included in such calculation except to the extent that
the payments are already taken into account under (1) through (6) above and any payments
Annex A-2
3971777.11 048026
otherwise included above under (1) through (6) which are to be replaced by payments under
a Credit Agreement, from either the City or the Credit Provider, shall be excluded from such
calculation. With respect to any calculation of historic data, only those payments actually
made in the subject period shall be taken into account in making such calculation and, with
respect to prospective calculations, only those payments reasonably expected to be made in
the subject period shall be taken into account in making the calculation.
"Net Revenues" and "Net Revenues of the System" means all Gross Revenues less
Operating Expenses.
"Operating Expenses" means the expenses of operation and maintenance of the System,
including all salaries, labor, materials repairs, and extensions necessary to render efficient service,
provided, however, that only such repairs and extensions, as in the judgment of the City,
reasonably and fairly exercised by the passage of appropriate ordinances, are necessary to render
adequate service, or such as might be necessary to meet some physical accident or condition which
would otherwise impair any Parity Obligations. Operating Expenses shall include the purchase of
water, sewer, and, to the extent permitted by law, drainage services as received from other entities
and the expenses related thereto, and, to the extent permitted by law, Operating Expenses may
include payments made on or in respect of obtaining and maintaining any Credit Agreement or
Credit Facility. Depreciation shall never be considered as expenses of operation and maintenance.
Annex A-3
3971777.11 048026
ANNEX B
ADDITIONAL DEBT TEST
Reference is made to Section 8 (Issuance of Additional Obligations) of the Master Ordinance, and
the requirements and conditions contained therein as of the Effective Date, which are set forth
verbatim below. Capitalized terms used below in this Annex B shall have the respective meanings
assigned to such terms in the Master Ordinance.
Section 8. ISSUANCE OF ADDITIONAL OBLIGATIONS.
(a) Parity Obligations. The City reserves and shall have the right and power to
issue or incur Parity Obligations for any purpose authorized by law pursuant to the provisions of
this Ordinance and a Supplement (other than the Supplement adopted concurrently with this
Ordinance) to be hereafter authorized. The City may issue, incur, or otherwise become liable in
respect of any Parity Obligations if (i) a Designated Financial Officer shall deliver to the City a
certificate stating that, to the best of his or her knowledge, the City is in compliance with all
covenants contained in this Ordinance and any Supplement, is not in default in the performance
and observance of any of the terms, provisions and conditions hereof and thereof, and the Funds
and Accounts securing the Parity Obligations then Outstanding as established in accordance with
the terms of this Ordinance and any Supplement contain the amount then required to be therein;
and (ii) an Accountant signs a written certificate to the effect that, in the opinion thereof, during
either the next preceding Fiscal Year, or any twelve consecutive calendar month period ending not
more than ninety days prior to the date of the then proposed Parity Obligations, the Net Revenues
were at least equal to (A) 1.25 times the average Annual Debt Service Requirements of the Parity
Obligations to be Outstanding and (B) 1.10 times the Annual Debt Service Requirements of the
Parity Obligations to be Outstanding in the Fiscal Year during which such Annual Debt Service
Requirements are scheduled to be the greatest, after the issuance of the then proposed Parity
Obligations. For purposes of this subsection (a), if Parity Obligations are issued to refund less
than all of the Parity Obligations then Outstanding, the Accountant's certificate required by clause
(ii) above shall give effect to the issuance of the proposed refunding Parity Obligations (and shall
not give effect to the Parity Obligations being refunded following their cancellation or provision
being made for their payment).
(b) Short -Term Parity Obligations. The City may not issue or incur Parity
Obligations issued in the form of commercial paper in an amount in excess of the greater of (i)
25% of the Outstanding Funded Debt secured by the Pledged Revenues of the System or (ii)
$75,000,000. For purposes of this subsection, the term "Outstanding Funded Debt" shall include
Subordinated Debt that matures by its terms, or that is renewable at the option of the City to a date,
more than one year after the original creation thereof by the City. The terms and conditions
pertaining to the issuance of Parity Obligations in the form of commercial paper, including,
without limitation, the security and reserves which may be necessary to support such issuance,
shall be set forth in the Supplement authorizing the issuance of Parity Obligations in the form of
commercial paper.
(c) Special Facilities Debt and Subordinated Debt. Special Facilities Debt and
Subordinated Debt may be incurred by the City without limitation.
Annex B-1
3971777.11 048026
(d) Credit Agreements. Payments to be made under a Credit Agreement may
be treated as Parity Obligations if the governing body of the City makes a finding in the
Supplement authorizing the treatment of the obligations of the City incurred under a Credit
Agreement as a Parity Obligation that, based upon the findings contained in a certificate executed
and delivered by a Designated Financial Officer, the City will have sufficient funds to meet the
financial obligations of the System, including sufficient Pledged Revenues to satisfy the Annual
Debt Service Requirements of the System and the financial obligations of the City relating to the
System after giving effect to the treatment of the Credit Agreement as a Parity Obligation.
(e) Determination of Net Revenues. In making a determination of Net
Revenues for any of the purposes described in this Section, the Accountant may take into
consideration a change in the rates and charges for services and facilities afforded by the System
that became effective at least 30 days prior to the last day of the period for which Net Revenues
are determined and, for purposes of satisfying the Net Revenues test described above, make a pro
forma determination of the Net Revenues of the System for the period of time covered by the
Accountant's certification or opinion based on such change in rates and charges being in effect for
the entire period covered by the Accountant's certificate or opinion.
Annex B-2
3971777.11 048026
ANNEX C
FLOW OF FUNDS
The following requirements and conditions contained below constitute the Flow of Funds
referenced in Part D of Schedule I to this Agreement.
I. Excerpt of Master Ordinance:
Reference is made to Sections 5, 6 and 7 of the Master Ordinance, and the requirements and
conditions contained therein as of the Effective Date, which are set forth verbatim below.
Capitalized terms used below in this Part I of Annex C shall have the respective meanings assigned
to such terms in the Master Ordinance.
Section 5. SYSTEM FUND. There is hereby created and there shall be established
and maintained on the books of the City, and accounted for separate and apart from all other funds
of the City, a separate fund designated as the System Fund. All Gross Revenues shall be credited
to the System Fund immediately upon receipt. All Operating Expenses shall be paid from the
Gross Revenues credited to the System Fund as a first charge against same.
Section 6. DEBT SERVICE FUND.
(a) For the sole purpose of paying the principal amount of, premium, if any, and interest
on, and other payments (other than Operating Expenses) incurred in connection with Parity
Obligations, there is hereby created and there shall be established and maintained on the books of
the City, and accounted for separate and apart from all other funds of the City, a separate fund
designated as the Debt Service Fund. Moneys in the Debt Service Fund shall be deposited and
maintained in an official depository bank of the City.
(b) The terms and conditions with respect to the deposit of moneys into the Debt
Service Fund, and the amounts to be deposited from time to time to the credit of the Debt Service
Fund, shall be contained in the Supplement. In addition, the City reserves the right in any
Supplement to establish within the Debt Service Fund various Accounts to facilitate the timely
payment of Parity Obligations as the same become due and owing.
Section 7. RESERVE FUND.
(a) There is hereby created and there shall be established and maintained on the books
of the City a separate fund designated as the Reserve Fund. Except as provided in subsection (g)
below, the Reserve Fund shall be maintained for the benefit of the owners of the Parity Obligations.
There shall be deposited into the Reserve Fund any Reserve Fund Obligations so designated by
the City. Reserve Fund Obligations in the Reserve Fund shall be deposited and maintained in an
official depository bank of the City. Reserve Fund Obligations in the Reserve Fund shall be used
for the purpose of retiring the last of the Parity Obligations as they become due or paying principal
of and interest on the Parity Obligations when and to the extent the amounts in the Debt Service
Fund are insufficient for such purpose. The Reserve Fund shall be maintained in an amount equal
to the Required Reserve Amount. The City may, at its option, withdraw and transfer to the System
Fund all surplus in the Reserve Fund over the Required Reserve Amount.
Annex C-1
3971777.11 048026
(b) The City may replace or substitute a Credit Facility for cash or Eligible Investments
on deposit in the Reserve Fund or in substitution for or replacement of any existing Credit Facility.
Upon such replacement or substitution, cash or Eligible Investments on deposit in the Reserve
Fund which, taken together with the face amount of any existing Credit Facilities, are in excess of
the Required Reserve Amount may be withdrawn by the City, at its option, and transferred to the
System Fund; provided that the face amount of any Credit Facility may be reduced at the option
of the City in lieu of such transfer.
(c) If the City is required to make a withdrawal from the Reserve Fund for any of the
purposes described in this Section, the City shall promptly notify the issuer of such Credit Facility
of the necessity for a withdrawal from the Reserve Fund for any such purposes, and shall make
such withdrawal FIRST from available moneys or Eligible Investments then on deposit in the
Reserve Fund, and NEXT from a drawing under any Credit Facility to the extent of such deficiency
(d) In the event of a deficiency in the Reserve Fund, or in the event that on the date of
termination or expiration of any Credit Facility there is not on deposit in the Reserve Fund
sufficient Reserve Fund Obligations, all in an aggregate amount at least equal to the Required
Reserve Amount, then the City shall, after making required deposits to the Debt Service Fund in
accordance with the terms of this Ordinance and any Supplement, satisfy the Required Reserve
Amount by depositing Reserve Fund Obligations into the Reserve Fund in monthly installments
of not less than 1/12 of the Required Reserve Amount on or before the loth day of each month
following such deficiency, termination or expiration.
(e) In the event of the redemption or defeasance of any of the Parity Obligations, any
Reserve Fund Obligations on deposit in the Reserve Fund in excess of the Required Reserve
Amount may be withdrawn and transferred, at the option of the City, to the System Fund, as a
result of (i) the redemption of the Parity Obligations, or (ii) funds for the payment of the Parity
Obligations having been deposited irrevocably with the paying agent or place of payment therefor
in the manner described in this Ordinance and any Supplement, the result of such deposit being
that such Parity Obligations no longer are deemed to be Outstanding under the terms of this
Ordinance.
(f) In the event there is a draw upon the Credit Facility, the City shall reimburse the
issuer of such Credit Facility for such draw, in accordance with the terms of any agreement
pursuant to which the Credit Facility is issued, from Pledged Revenues, however, such
reimbursement from Pledged Revenues shall be subject to the provisions of Section 7(d) hereof
and shall be subordinate and junior in right of payment to the payment of principal of and premium,
if any, and interest on the Parity Obligations.
(g) For the purpose of this Section, the Reserve Fund shall not secure Parity
Obligations issued in the form of commercial paper, or any Credit Agreement issued in support of
such Parity Obligations issued in the form of commercial paper, except as otherwise may be
provided in any Supplement.
Annex C-2
3971777.11 048026
II. Excerpt of WIFIA Supplemental Ordinance:
Reference is made to Section 12 of the WIFIA Supplemental Ordinance, and the requirements and
conditions contained therein as of the Effective Date, which are set forth verbatim below.
Capitalized terms used below in this Part II of Annex C shall have the respective meanings
assigned to such terms in the WIFIA Supplemental Ordinance.
Section 12. FLOW OF FUNDS. All monies in the System Fund not required for paying
Operating Expenses during each month shall be applied by the City, on or before the loth day of
the following month, commencing during the months and in the order of priority with respect to
the Funds and Accounts that such applications are hereinafter set forth in this Section. If on any
occasion there shall not be sufficient Pledged Revenues to make the required deposits into the
Funds and Accounts established in accordance with the Master Ordinance and any Supplement for
any Outstanding Parity Obligations, then such available Pledged Revenues shall be applied prorata
to any such required deposits and any such deficiency shall be made up as soon as possible from
the next available Pledged Revenues, or from any other source available for such purpose.
(a) Debt Service Fund - To the credit of the Debt Service Fund, in the following order of
priority, to -wit:
(1) such amounts, deposited in approximately equal monthly installments,
commencing during the month in which the Bond is delivered, or the month thereafter if
delivery is made after the loth day thereof, as will be sufficient, together with other
amounts, if any, in the Debt Service Fund available for such purpose, to pay the interest
scheduled to come due on the Bond on the next succeeding interest payment date; and
(2) such amounts, deposited in approximately equal monthly installments,
commencing during the month which shall be the later to occur of, (i) the twelfth month
before the first maturity date of the Bond, or (ii) the month in which the Bond is delivered,
or the month thereafter if delivery is made after the l Oth day thereof, as will be sufficient,
together with other amounts, if any, in the Debt Service Fund available for such purpose,
to pay the principal (including mandatory sinking fund redemption payments, if any)
scheduled to mature or come due on the Bond on the next succeeding principal payment
date or mandatory sinking fund redemption date, as the case may be.
(b) Reserve Fund. Acting in accordance with the provisions of the Master Ordinance,
specifically, without limitation, Section 7 thereof, it is not necessary for the Bond to be secured by
the Reserve Fund established for the benefit of the owners of Parity Obligations, and therefore the
City may, but shall not be required to, make deposits to the credit of the Reserve Fund with respect
to the Bond.
Annex C-3
3971777.11 048026
SCHEDULE II
PROJECT DETAILS
PART A. Project Budget.
SOURCES OF FUNDS
AMOUNT ($ USD)
PERCENTAGE (%)
WIFIA Loan
$347,655,441
49%
Revenue Bonds
$361,845,459
51%
Total Sources of Funds
$709,500,900
100%
USES OF FUNDS
AMOUNT ($ USD)
PERCENTAGE (%)
Construction
$504,800,000
71%
Design
$24,300,000
3%
Other Capital Costs
$16,093,000
2%
Contingency
$163,557,900
23%
Financing Costs
$750,000
1%
Total Uses of Funds
$709,500,900
100%
Total Eligible Project Costs
$709,500,900
100%
Total Project Costs
$709,500,900
100%
PART B. Construction Schedule.
Projected Substantial Completion Date: December 31, 2029.
PROJECT ELEMENT
DESIGN
COMPLETION
CONSTRUCTION
START
CONSTRUCTION
END
Mary's Creek Water
Reclamation Facility
3/17/2026
7/05/2026
12/31/2029
Mary's Creek Force Main
Section 2
11/22/2026
4/01/2027
9/02/2028
Mary's Creek Force Main
Section 1
11/22/2026
4/01/2027
9/02/2028
Walnut Creek Lift Station
6/02/2026
11/02/2026
10/02/2028
Confluence Lift Station
6/02/2026
11/02/2026
10/02/2028
Schedule II-1
3971777.11 048026
PART C. Existing Construction Contracts.
None.
PART D. [Reserved].
Schedule II-2
3971777.11 048026
SCHEDULE III
BORROWER DISCLOSURES
PART A. Existing Indebtedness.
1.
Existing Parity Obligations
Agreement/Series
Outstanding
Principal as of
Effective Date
1.
Water & Sewer System Revenue Bonds, Series 2025B
SWIFT (Eagle Mountain)
$ [180,000,000]
2.
Water & Sewer System Revenue Bonds, Series 2025
[179,435,000]
3.
Water & Sewer System Revenue Bonds, Series 2024C
SWIFT (Eagle Mountain)
[122,200,000]
4.
Water & Sewer System Revenue Bonds, Series 2024B
CWSRF (Village Creek)
[57,440,000]
5.
Water & Sewer System Revenue Bonds, Series 2024
[147,050,000]
6.
Water & Sewer System Revenue Refunding Bonds, Series
2023A
[71,890,000]
7.
Water & Sewer System Revenue Bonds, Series 2023
[169,255,000]
8.
Water & Sewer System Revenue Bonds, Series 2022
[139,340,000]
9.
Water & Sewer System Revenue Refunding & Improvement
Bonds, Series 2021
[114,270,000]
10.
Water & Sewer System Revenue Refunding & Improvement
Bonds, Series 2020A
[114,370,000]
11.
Water & Sewer System Revenue Bonds, Series 2020
[47,150,000]
12.
Water & Sewer System Revenue Bonds, Series 2019
[83,345,000]
13.
Water & Sewer System Revenue Bonds, Series 2018
[41,460,000]
14.
Water & Sewer System Revenue Bonds, Series 2017B
[31,025,000]
15.
Water & Sewer System Revenue Refunding & Improvement
Bonds, Series 2017A
[79,265,000]
16.
Water & Sewer System Revenue Bonds, Series 2017
[12,240,000]
17.
Water & Sewer System Revenue Refunding & Improvement
Bonds, Series 2016
[38,445,000]
18.
Water & Sewer System Revenue Bonds, Series 2015B
[4,705,000]
19.
Water & Sewer System Revenue Refunding & Improvement
Bonds, Series 2015A
[51,540,000]
20.
Water & Sewer System Revenue Bonds, Series 2015
[20,475,000]
21.
Water & Sewer System Revenue Bonds, Series 2009
[3,955,000]
Schedule III-1
3971777.11 048026
2. Existing Subordinated Debt
Agreement/Series
Outstanding
Principal as of
Effective Date
None.
PART B. Litigation Disclosure.
There is no pending or anticipated lawsuit or claim that would impact the operations of the System
or the Borrower's ability to repay the WIFIA Loan.
The Borrower must acquire a total of 29 parcels for this Project. Of that total, [nine] parcels are
being actively negotiated. Depending on the outcome of those negotiations, condemnation may
be required. Another six parcels are expected to be subject to condemnation proceedings. To the
extent any lawsuits have been filed, the lawsuits are listed below:
No.
Parties
■
Date Initiated
Description / Status
Venue
m
2025-
City of Fort Worth
10/10/2025
Condemnation of easement
Tarrant
008188-
v. Ronald J. Miller;
rights needed for Project
County
2
Community Bank
Court at
Holdings of Texas,
Inc.; City of
Law No. 2
Benbrook; Tarrant
County, Texas;
Tarrant County
Hospital District;
Tarrant County
College District;
and Fort Worth
Independent School
District
PART C. Environmental Matter Disclosure.
None.
Schedule III-2
3971777.11 048026
SCHEDULE IV
REQUISITION PROCEDURES
This Schedule IV sets out the procedures which the Borrower agrees to follow in
submitting Requisitions for any Disbursement of the WIFIA Loan. The Borrower expressly agrees
to the terms hereof, and further agrees that (i) the rights of the WIFIA Lender contained herein are
in addition to (and not in lieu of) any other rights or remedies available to the WIFIA Lender under
the WIFIA Loan Documents, and (ii) nothing contained herein shall be construed to limit the rights
of the WIFIA Lender to take actions including administrative enforcement action and actions for
breach of contract against the Borrower if it fails to carry out its obligations under this Agreement
during the term hereof.
PART A. General Requirements.
(a) Manner of Request: All requests by the Borrower for a Disbursement shall be made
in writing by electronic submission to the WIFIA Lender, in accordance with Section 31 (Notices)
of this Agreement.
(b) Required Documentation: Any request by the Borrower should include the
submission of:
(i) a Requisition, in the form attached as Exhibit D (Form of Requisition),
completed and executed by the Borrower's Authorized Representative, and otherwise in form and
substance satisfactory to the WIFIA Lender; and
(ii) all Eligible Project Costs Documentation that has not otherwise been
provided to the WIFIA Lender in accordance with Part C of Schedule V (Reporting Requirements)
of this Agreement.
(c) Timing: Any request for a Disbursement must be received by the WIFIA Lender
and the Servicer (if any) at or before 5:00 P.M. (Eastern Time) on either:
(i) the first (1 St) Business Day of a calendar month in order to obtain the
requested Disbursement by the fifteenth (15th) day of such calendar month; or
(ii) the fifteenth (15th) day of a calendar month, in order to obtain the requested
Disbursement by the first (1st) day of the immediately following calendar month;
provided, that, (x) if any such day is not a Business Day, the Disbursement request
or payment (as the case may be) shall be made by the next succeeding Business Day; (y) the
Borrower shall not request to receive more than one (1) Disbursement per month or every thirty
(30) days (whichever is longer); and (z) no Disbursements shall be made after the Final
Disbursement Date.
Schedule IV-1
3971777.11 048026
PART B. WIFIA Lender Review Process.
(a) The WIFIA Lender shall review the Requisition and the Eligible Project Costs
Documentation for compliance with WIFIA Disbursement requirements.
(b) If a Requisition is approved by the WIFIA Lender, the WIFIA Lender will notify
the Borrower of such approval and of the amount so approved. A Requisition containing an
apparent mathematical error will be corrected by the WIFIA Lender, after telephonic or email
notification to the Borrower, and will thereafter be treated as if submitted in the corrected amount.
If the amount requested for Disbursement in the Requisition exceeds the available balance of the
WIFIA Loan proceeds remaining to be disbursed, the Disbursement request will be treated as if
submitted in the amount of the balance so remaining, and the WIFIA Lender will so notify the
Borrower.
(c) The WIFIA Lender shall be entitled to withhold approval (in whole or in part) of
any pending or subsequent requests for the Disbursement of WIFIA Loan proceeds if: (i) a Default
or an Event of Default shall have occurred and be continuing or (ii) the Borrower (1) knowingly
takes any action, or omits to take any action, amounting to fraud or violation of any applicable
law, in connection with the transactions contemplated hereby; (2) prevents or materially impairs
the ability of the WIFIA Lender to monitor compliance by the Borrower with applicable law
pertaining to the Project or with the terms and conditions of this Agreement; (3) fails to observe
or comply with any applicable law, or any term or condition of this Agreement; (4) fails to satisfy
the conditions set forth in Section 4 (Disbursement Conditions) and Section 11(b) (Conditions
Precedent to Disbursements) of this Agreement; or (5) fails to deliver Eligible Project Costs
Documentation satisfactory to the WIFIA Lender at the times and in the manner specified by this
Agreement; provided, that in such case of sub -clause (5) above, the WIFIA Lender may, in its sole
discretion, partially approve a Requisition in respect of any amounts for which adequate Eligible
Project Costs Documentation has been provided and may, in its sole discretion, disburse in respect
of such properly documented amounts. The WIFIA Lender will notify the Borrower of any
withholding, and the reasons therefor.
(d) A Requisition may be rejected in whole or in part by the WIFIA Lender if it is: (i)
submitted without signature; (ii) submitted under signature of a Person other than a Borrower's
Authorized Representative; (iii) submitted after prior Disbursement of all proceeds of the WIFIA
Loan; or (iv) submitted without adequate Eligible Project Costs Documentation. The WIFIA
Lender will notify the Borrower of any Requisition so rejected, and the reasons therefor. Any
Requisition rejected for the reasons specified under this paragraph (d) must be resubmitted in
proper form in order to be considered for approval.
Schedule IV-2
3971777.11 048026
SCHEDULE V
REPORTING REQUIREMENTS
PART A. Updated Financial Model/Plan.
The Borrower shall provide to the WIFIA Lender, not later than one hundred eighty (180) days
after the end of each Borrower Fiscal Year, an Updated Financial Model/Plan. The Updated
Financial Model/Plan shall reflect the Borrower's reasonable expectations, using assumptions that
the Borrower believes to be reasonable, and include: (a) the Borrower's capital improvement plan,
major maintenance plan, projected rates and charges, projected debt outstanding and annual debt
service, projected Gross Revenues and projected Operating Expenses for a reasonable projection
period consistent with the Borrower's operating and financial planning and demonstrating that the
Borrower has developed and identified adequate revenues to implement a plan for operating,
maintaining, and repairing the Project; (b) evidence of compliance with the Rate Covenant for the
most recent Borrower Fiscal Year for which the Borrower's Financial Statements are available and
the projected debt service coverage ratios (including projected Rate Covenant coverages) through
the Forecast Period; and (c) a written narrative identifying any material changes to the underlying
assumptions from the previous Updated Financial Model/Plan.
PART B. Annual Financial Statements.
The Borrower shall deliver to the WIFIA Lender, as soon as available, but no later than one
hundred eighty (180) days after the end of each Borrower Fiscal Year, a copy of the audited income
statement and balance sheet of the Borrower as of the end of such Borrower Fiscal Year and the
related audited statements of operations and of cash flow of the Borrower for such Borrower Fiscal
Year, (a) setting forth in each case in comparative form the figures for the previous fiscal year, (b)
certified without qualification or exception, or qualification as to the scope of the audit, by an
independent public accounting firm selected by the Borrower and (c) which shall be complete and
correct in all material respects and shall be prepared in reasonable detail and in accordance with
GAAP applied consistently throughout the periods reflected therein (except, with respect to the
annual financial statements, for changes approved or required by the independent public
accountants certifying such statements and disclosed therein).
PART C. Construction Monitoring.
(a) The WIFIA Lender shall have the right in its sole discretion to monitor (or
direct its agents to monitor) the development of the Project, including environmental compliance,
design, and construction of the Project. The Borrower shall be responsible for administering
construction oversight of the Project in accordance with applicable federal, state and local
governmental requirements. The Borrower agrees to cooperate in good faith with the WIFIA
Lender in the conduct of such monitoring by promptly providing the WIFIA Lender with such
reports, documentation or other information as shall be requested by the WIFIA Lender or its
agents, including any independent engineer reports, documentation or information.
Schedule V-1
3971777.11 048026
(b) Construction Monitoring Report. During the period beginning from the first
quarter following bid advertisement of the first Construction Contract for the Project, through and
until Substantial Completion of the Project, the Borrower shall furnish to the WIFIA Lender, on a
quarterly basis, the Construction Monitoring Report. The report shall be delivered to the WIFIA
Lender within thirty (30) days of the end of each such quarter (or if such day is not a Business
Day, on the next following Business Day). If the then -current projection for the Substantial
Completion Date is a date different than the Projected Substantial Completion Date, the Borrower
shall provide in the Construction Monitoring Report a description in reasonable detail to the
reasonable satisfaction of the WIFIA Lender of the reasons for such projected delay or difference.
The Projected Substantial Completion Date shall automatically be adjusted to the new date
specified by the Borrower in the Construction Monitoring Report unless the WIFIA Lender objects
to the adjustment in writing to the Borrower within sixty (60) days following receipt of such
Construction Monitoring Report on the basis that such report does not demonstrate the matters
specified in this paragraph.
(c) Quarterly Certification of Eligible Project Costs. If requested by the WIFIA
Lender, on a basis not more frequently than quarterly, the Borrower shall submit to the WIFIA
Lender, concurrently with the delivery of the Construction Monitoring Report, a certificate, in the
form of Exhibit E (Form of Certification of Eligible Project Costs Documentation), signed by the
Borrower's Authorized Representative, and attaching Eligible Project Costs Documentation as
applicable. If there are no applicable Eligible Project Costs for such quarter, the Borrower may
notify the WIFIA Lender by written confirmation of the same by email in accordance with Section
31 (Notices) of the WIFIA Loan Agreement. Within sixty (60) days following the receipt of such
certificate and accompanying Eligible Project Costs Documentation (if applicable), the WIFIA
Lender shall notify the Borrower confirming (i) which Eligible Project Costs incurred by the
Borrower set forth in the certification have been approved or denied (and, if denied, the reasons
therefor) and (ii) the cumulative amount of Eligible Project Costs that have been approved as of
the date of such notice. Any such approved amounts of Eligible Project Costs shall then be deemed
to be available for Disbursement at such time as the Borrower submits a Requisition in respect of
such approved amounts in accordance with Section 4 (Disbursement Conditions).
(d) Final Specifications. The Borrower shall deliver to the WIFIA Lender, prior
to bid advertisement for the Project (including each sub -project or component, if applicable), a
copy of the final specifications relating to the development and construction of the Project (or such
sub -project or component, as the case may be), demonstrating compliance with all applicable
federal requirements and including a summary of the scope of work thereunder.
PART D. Public Benefits Report.
The Borrower shall deliver to the WIFIA Lender the Public Benefits Report (a) no later than thirty
(30) days prior to the Effective Date, (b) within ninety (90) days following the Substantial
Completion Date and (c) within ninety (90) days following the fifth (5th) anniversary of the
Substantial Completion Date. The Borrower agrees that information described in the Public
Benefits Report may be made publicly available by the WIFIA Lender at its discretion.
Schedule V-2
3971777.11 048026
PART E. Notices.
(a) The Borrower shall, within fifteen (15) days (or such other time as may be
specified below) after the Borrower learns of the occurrence, give the WIFIA Lender notice of any
of the following events or receipt of any of the following notices, as applicable, setting forth details
of such event:
(i) Substantial Completion: the occurrence of Substantial Completion,
such notice to be provided in the form set forth in Exhibit G (Form of Certificate of
Substantial Completion);
(ii) Defaults; Events of Default: any Default or Event of Default;
(iii) Litigation: (1) the filing of any litigation, suit or action, or the
commencement of any proceeding, against the Borrower before any arbitrator,
Governmental Authority, alternative dispute resolution body, or other neutral third party,
that could reasonably be expected to have a Material Adverse Effect, and (2) any final,
non -appealable judgment related to the Pledged Collateral that could reasonably be
expected to result in the impairment of (A) the Borrower's ability to comply with any of
its payment obligations under the WIFIA Bond or this Agreement or (B) the existence,
priority or perfection (if applicable) of the WIFIA Lender's security interest in the Pledged
Collateral;
(iv) Delayed Governmental Approvals: any failure to receive or delay
in receiving any Governmental Approval or making any required filing, notice, recordation
or other demonstration to or with a Governmental Authority, in each case to the extent such
failure or delay will or could reasonably be expected to result in a delay to any major
milestone date (including the Projected Substantial Completion Date) set forth in the
Construction Schedule, together with a written explanation of the reasons for such failure
or delay and the Borrower's plans to remedy or mitigate the effects of such failure or delay;
(v) Environmental Notices: any material notice of violation related to
the Project or any material change to the Project that could reasonably be expected to affect
the NEPA Determination;
(vi) Amendments: except as otherwise agreed by the WIFIA Lender in
writing, copies of any fully executed amendments, modifications, replacements or
supplements to any Related Document; provided, that such notice may be accomplished
through the posting of the relevant documents on EMMA under the WIFIA CUSIP Number
with a reference to the relevant WIFIA provision of this Agreement;
(vii) Related Document Defaults: any material breach or default or event
of default on the part of the Borrower or any other party under any Related Document;
provided, that such notice may be accomplished through the posting of the relevant
documents on EMMA under the WIFIA CUSIP Number with a reference to the relevant
WIFIA provision of this Agreement;
Schedule V-3
3971777.11 048026
(viii) Uncontrollable Force: the occurrence of any Uncontrollable Force
that could reasonably be expected to materially and adversely affect the Project;
(ix) Ratings Changes: any change in the rating assigned to the WIFIA
Loan or any other Obligations, in each case by any Nationally Recognized Rating Agency
that has provided a public rating on such indebtedness, and any notices, reports or other
written materials (other than those that are ministerial in nature) received from any such
rating agencies; provided, that such notice may be accomplished through the posting of the
relevant documents on EMMA under the WIFIA CUSIP Number with a reference to the
relevant WIFIA provision of this Agreement;
(x) 2 C.F.R. § 180.350 Notices: any notification required pursuant to 2
C.F.R. § 180.350, whether attributable to a failure by the Borrower to disclose information
previously required to have been disclosed or due to the Borrower or any of its principals
meeting any of the criteria set forth in 2 C.F.R. § 180.335;
(xi) Issuance of Obligations: copies of any final issuing instrument
(together with any continuing disclosure documents, ordinances, official statement,
certifications or cash flow projections in connection therewith), prepared in connection
with the incurrence of any Permitted Debt (including any Additional Obligations), together
with a confirmation by the Borrower that such additional indebtedness satisfies the
applicable requirements under the definition of "Permitted Debt"; provided, that such
notice may be accomplished through the posting of the relevant documents on EMMA
under the WIFIA CUSIP Number with a reference to the relevant WIFIA provision of this
Agreement;
(xii) Postings on EMMA: the posting of any document on EMMA in
accordance with the requirements of any continuing disclosure agreement or similar
document with respect to any Outstanding Obligations relating to annual financial
information and operating data and the reporting of significant events; provided, that such
notice may be accomplished through the posting of the relevant document on EMMA under
the WIFIA CUSIP Number with a reference to the relevant WIFIA provision of this
Agreement;
(xiii) SAM / UEI: any change in the Borrower's SAM registration status
(including any exclusions, expiration or inactive registration) or UEI (including any
expiration or change in effectiveness); provided, that such notice may be accomplished
through the posting of the relevant document on EMMA under the WIFIA CUSIP Number
with a reference to the relevant WIFIA provision of this Agreement;
(xiv) Reorganization, Consolidation or Merger: the occurrence of any
reorganization, consolidation, or merger, together with the agreements and documents
authorizing the reorganization, consolidation or merger; and
(xv) Fiscal Year: any change to or adoption of any fiscal year other than
the Initial Borrower Fiscal Year; provided, that such notice may be accomplished through
Schedule V-4
3971777.11 048026
the posting of the relevant document on EMMA under the WIFIA CUSIP Number with a
reference to the relevant WIFIA provision of this Agreement; and
(xvi) Other Adverse Events: the occurrence of any other event or
condition, including without limitation any notice of breach from a contract counterparty
or any holder of any Obligations, that could reasonably be expected to result in a Material
Adverse Effect.
(b) The Borrower shall, at any time while the WIFIA Loan remains Outstanding,
promptly deliver to the WIFIA Lender such additional information regarding the business,
financial, legal or organizational affairs of the Borrower or regarding the System, the Project or
the Gross Revenues as the WIFIA Lender may from time to time reasonably request. The
Borrower agrees that the delivery of any documents or information under and pursuant to this
Agreement shall not be construed as compliance with, or affect in any manner, any obligations of
the Borrower under any other contracts, agreements, decrees, Governmental Approvals, or other
documents with EPA (other than the WIFIA Loan Documents) or the Federal Government.
Schedule V-5
3971777.11 048026
SCHEDULE VI
WIFIA LOAN AMORTIZATION SCHEDULE1
[To be attached with final interest rate on the Effective Date]
1 WIFIA Underwriter to work with Borrower to provide an initial amortization schedule that is shared with the
transaction team prior to closing. The final schedule will be finalized on the day of closing to account for the final
interest rate.
Schedule VI-1
3971777.11 048026
EXHIBIT A
FORM OF WIFIA BOND
NO. R- $
UNITED STATES OF AMERICA
STATE OF TEXAS
COUNTIES OF TARRANT, DENTON, PARKER, WISE AND JOHNSON
CITY OF FORT WORTH, TEXAS
WATER AND SEWER SYSTEM REVENUE BOND, SERIES 2026
MARY'S CREEK WATER RECLAMATION FACILITY PROJECT
(WIFIA ID — N23107TX)
MATURITY DATE INTEREST RATE
February 15, 2059,
subject to adjustment
as set forth in the
WIFIA Loan
Agreement
Registered Owner
[]%, subject to the
Default Rate (as
defined and in
accordance with the
WIFIA Loan
Agreement)
DELIVERY DATE CUSIP
January 23, 2026 3495156E1
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
acting by and through the Administrator of the Environmental
Protection Agency
Maximum Principal $347,655,441 (excluding capitalized interest)
Amount
ON THE MATURITY DATE SPECIFIED ABOVE, THE CITY OF FORT WORTH,
TEXAS IN TARRANT, DENTON, PARKER, WISE AND JOHNSON COUNTIES, TEXAS (the
"Issuer"), hereby promises to pay to the UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, acting by and through the Administrator of the United States
Environmental Protection Agency, or its assigns (the "WIFIA Lender"), or to the registered
assignee hereof (either being hereinafter called the "registered owner") the lesser of (x) the
Maximum Principal Amount set forth above and (y) the aggregate unpaid principal amount of all
Disbursements made by the WIFIA Lender (such lesser amount, together with any interest that is
capitalized and added to principal in accordance with the provisions of the WIFIA Loan Agreement
(as defined below), including, without limitation, subject to any limitations set forth in Section 3
(WIFIA Loan Amount) of the WIFIA Loan Agreement, being hereinafter referred to as the
Exhibit A-1
3971777.11 048026
"Outstanding Principal Sum"), together with accrued and unpaid interest (including, if
applicable, interest at the Default Rate, as defined in the WIFIA Loan Agreement) on the
Outstanding Principal Sum and all fees, costs and other amounts payable in connection therewith,
all as more fully described in that certain WIFIA Loan Agreement, dated as of the date hereof,
between the WIFIA Lender and the Issuer (the "WIFIA Loan Agreement"). All capitalized terms
used in this WIFIA Bond and not defined herein shall have the meanings set forth in the WIFIA
Loan Agreement.
THE PRINCIPAL OF AND INTEREST ON this WIFIA Bond are payable in lawful
money of the United States of America, without exchange or collection charges. The payment of
principal of and interest on this WIFIA Bond shall be made by the Paying Agent/Registrar to the
registered owner hereof at the times, in the manner and at the place provided in the WIFIA Loan
Agreement.
THE WIFIA DEBT SERVICE HEREOF shall be payable in the amounts, manner and on
the Payment Dates as set forth in the WIFIA Loan Amortization Schedule in accordance with the
WIFIA Loan Agreement (which WIFIA Loan Amortization Schedule may be revised from time
to time in accordance with the WIFIA Loan Agreement and which WIFIA Loan Amortization
Schedule, as modified from time to time in accordance with the terms of the WIFIA Loan
Agreement, is incorporated in and is a part of this WIFIA Bond), until paid in full. The WIFIA
Lender is hereby authorized to modify the WIFIA Loan Amortization Schedule from time to time
to reflect the amount of each Disbursement made thereunder and the date and amount of principal
or interest paid by the Issuer thereunder and otherwise in accordance with the terms of the WIFIA
Loan Agreement. Absent manifest error, the WIFIA Lender's determination of such matters as
set forth on the WIFIA Loan Amortization Schedule to the WIFIA Loan Agreement shall be
conclusive evidence thereof; provided, however, that neither the failure to make any such
recordation nor any error in such recordation shall affect in any manner the Issuer's obligations
hereunder or under any other WIFIA Loan Document.
PAYMENTS HEREON are to be made in accordance with Section 8(b) (Manner of
Payment) and Section 31 (Notices) of the WIFIA Loan Agreement as the same become due.
Principal of and interest on this WIFIA Bond shall be made in Dollars and in immediately available
funds (without counterclaim, offset or deduction). Any payment in respect of this WIFIA Bond
shall be treated as a payment in respect of the WIFIA Loan and any prepayment of principal in
respect of the WIFIA Loan shall be treated as a redemption in respect of this WIFIA Bond. If the
Final Maturity Date is adjusted in accordance with the WIFIA Loan Agreement, the due date of
this WIFIA Bond shall be deemed to be amended to change the due date to such revised Final
Maturity Date without any further action required on the part of the Issuer or the WIFIA Lender
and such amendment shall in no way amend, modify or affect the other provisions of this WIFIA
Bond without the prior written agreement of the WIFIA Lender. Any such amendment shall be
reflected in a revised WIFIA Loan Amortization Schedule.
THIS WIFIA BOND has been executed under and pursuant to the WIFIA Loan Documents
and is issued pursuant to the WIFIA Supplemental Ordinance to evidence the obligation of the
Issuer under the WIFIA Loan Documents to repay the loan made by the WIFIA Lender and any
other payments of any kind required to be paid by the Issuer under the WIFIA Loan Agreement or
Exhibit A-2
3971777.11 048026
the other WIFIA Loan Documents referred to therein. Reference is made to the WIFIA Loan
Agreement for all details relating to the Issuer's obligations hereunder.
PAYMENT OF THE OBLIGATIONS of the Issuer under this WIFIA Bond is secured by
Liens on the Pledged Collateral pursuant to the WIFIA Loan Documents. This WIFIA Bond is a
Parity Obligation, entitled to all of the benefits of a Parity Obligation under the Master Ordinance
and all other WIFIA Loan Documents. The Lien on the Pledged Revenues securing this WIFIA
Bond for the benefit of the WIFIA Lender is and shall be (a) on a parity in right of payment and
right of security to the Liens on the Pledged Revenues in favor of all other Parity Obligations and
(b) senior in right of payment and right of security to any Lien on the Pledged Revenues in favor
of any Subordinated Debt.
THIS WIFIA BOND may be prepaid at the option of the Issuer, without penalty or
premium, (i) in full on any date on or after the Final Disbursement Date or (ii) in part on any
Payment Date on or after the Final Disbursement Date (and, if in part, the amounts thereof to be
prepaid are to be determined by the Issuer; provided, such prepayments shall be in principal
amounts of at least $1,000,000 or any integral multiple of $1.00 in excess thereof), in each case
from time to time but not more than once annually in accordance with the WIFIA Loan Agreement.
ANY DELAY on the part of the WIFIA Lender in exercising any right hereunder shall not
operate as a waiver of any such right, and any waiver granted with respect to one default shall not
operate as a waiver in the event of any subsequent default.
IN THE EVENT any Paying Agent/Registrar for this WIFIA Bond is changed by the Issuer,
resigns, or otherwise ceases to act as such, the Issuer has covenanted in the WIFIA Supplemental
Ordinance that it promptly will appoint a competent and legally qualified substitute therefor,
whose qualifications are substantially similar to the previous Paying Agent/Registrar it is replacing,
and promptly will cause written notice thereof to be mailed to the registered owners of this WIFIA
Bond.
BY BECOMING the registered owner of this WIFIA Bond, the registered owner thereby
acknowledges all of the terms and provisions of the Master Ordinance and the WIFIA
Supplemental Ordinance, agrees to be bound by such terms and provisions, acknowledges that the
Master Ordinance and the WIFIA Supplemental Ordinance are duly recorded and available for
inspection in the official minutes and records of the Issuer, and agrees that the terms and provisions
of this WIFIA Bond, the Master Ordinance and the WIFIA Supplemental Ordinance constitute a
contract between each registered owner hereof and the Issuer.
THIS WIFIA BOND is a special obligation of the Issuer payable solely from and equally
secured by a first lien on and pledge of the Pledged Revenues of the System. The Issuer has
reserved the right, subject to the restrictions stated, and adopted by reference, in the Master
Ordinance, to issue additional parity revenue obligations which also may be made payable from
and secured by a first lien on and pledge of, the Pledged Revenues. For a more complete
description and identification of the revenues and funds pledged to the payment of this WIFIA
Bond, and other obligations of the Issuer secured by and payable from the same source or sources
as this WIFIA Bond, reference is hereby made to the Master Ordinance and the WIFIA
Supplemental Ordinance.
Exhibit A-3
3971777.11 048026
THE ISSUER has reserved the right, subject to the restrictions stated, and adopted by
reference, in the WIFIA Supplemental Ordinance, to amend the WIFIA Supplemental Ordinance;
and under some (but not all) circumstances amendments must be approved by the owners of a
majority in Outstanding Principal Amount of this WIFIA Bond.
THE REGISTERED OWNER HEREOF shall never have the right to demand payment of
this obligation out of any funds raised or to be raised by taxation.
TO THE FULLEST EXTENT permitted by applicable law and pursuant to
Section 1371.059(c) of the Texas Government Code, as amended, with respect to its obligations
arising under this WIFIA Bond, the Issuer has, in the WIFIA Supplemental Ordinance, waived
sovereign immunity from suit and liability for the purpose of adjudicating a claim to enforce its
duties and obligations under this WIFIA Bond or for damages for breach hereof.
IT IS HEREBY certified and covenanted that this WIFIA Bond has been duly and validly
authorized, issued and delivered; and that all acts, conditions and things required or proper to be
performed, exist and be done precedent to or in the authorization, issuance and delivery of this
WIFIA Bond have been performed, existed and been done in accordance with law.
Exhibit A-4
3971777.11 048026
IN WITNESS WHEREOF, this WIFIA Bond has been signed with the imprinted or
lithographed manual or facsimile signature of the Mayor, attested by the imprinted or lithographed
facsimile signature of the City Secretary, and approved as to form and legality by the imprinted or
lithographed facsimile signature of the City Attorney, and the official seal of the Issuer has been
duly affixed to, printed, lithographed or impressed on this WIFIA Bond.
CITY OF FORT WORTH, TEXAS,
by its authorized representative
By:
Mayor,
City of Fort Worth, Texas
ATTEST:
City Secretary,
City of Fort Worth, Texas
APPROVED AS TO FORM AND
LEGALITY: (SEAL)
City Attorney,
City of Fort Worth, Texas
[Signature Page to WIFIA Bond]
Exhibit A-5
3971777.11 048026
[FORM OF COMPTROLLER'S CERTIFICATE]
REGISTRATION CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS
OFFICE OF THE COMPTROLLER
OF PUBLIC ACCOUNTS
THE STATE OF TEXAS
§
§
§
REGISTER NO.
I hereby certify that this Bond has been examined, certified as to validity, and approved by
the Attorney General of the State of Texas and that this Bond has been registered by the
Comptroller of Public Accounts of the State of Texas.
Witness my signature and seal this
(SEAL)
Comptroller of Public Accounts of the State of Texas
Exhibit A-6
3971777.11 048026
[FORM OF PAYING AGENT/REGISTRAR'S AUTHENTICATION CERTIFICATE]
PAYING AGENT/REGISTRAR'S AUTHENTICATION CERTIFICATE
(To be executed if this WIFIA Bond is not accompanied by an executed
Registration Certificate of the Comptroller of Public Accounts of the State of Texas)
It is hereby certified that this WIFIA Bond has been issued under the provisions of the
proceedings adopted by the Issuer as described in the text of this WIFIA Bond; and that this WIFIA
Bond has been issued in exchange for or replacement of a bond, bonds, or a portion of a bond or bonds
of an issue which originally was approved by the Attorney General of the State of Texas and registered
by the Comptroller of Public Accounts of the State of Texas.
Dated
BOKF, NA,
Paying Agent/Registrar
By:
Authorized Signatory
Exhibit A-7
3971777.11 048026
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
Please insert Social Security or Taxpayer Identification Number of Transferee
(Please print or typewrite name and address, including zip code, of Transferee)
the within WIFIA Bond and all rights thereunder, and hereby irrevocably constitutes and
appoints
attorney, to transfer the within WIFIA Bond on the books kept for registration thereof, with full
power of substitution in the premises.
Dated:
Signature Guaranteed:
NOTICE: Signature(s) must be guaranteed by a NOTICE: The signature above must
member firm of the New York Stock Exchange correspond with the name of the Registered
or a commercial bank or trust company. Owner as it appears upon the front of this
WIFIA Bond in every particular, without
alteration or enlargement or any change
whatsoever.
Exhibit A-8
3971777.11 048026
EXHIBIT B
FORM OF CLOSING CERTIFICATE
Dated: January 23, 2026
Reference is made to that certain WIFIA Loan Agreement, dated as of January 23, 2026 (the
"WIFIA Loan Agreement"), by and among the City of Fort Worth, Texas (the "Borrower") and
the United States Environmental Protection Agency, acting by and through the Administrator (the
"WIFIA Lender"). Capitalized terms used in this certificate and not defined shall have the
respective meanings ascribed to such terms in the WIFIA Loan Agreement.
In connection with Section 11(a) (Conditions Precedent to Effectiveness) of the WIFIA Loan
Agreement, the undersigned, as the Borrower's Authorized Representative, does hereby certify on
behalf of the Borrower and not in his/her personal capacity, as of the date hereof:
(a) pursuant to Section 11(a)(v) of the WIFIA Loan Agreement, attached hereto as
Annex A is an incumbency certificate that lists persons, together with their
positions and specimen signatures, who are duly authorized by the Borrower to
execute the WIFIA Loan Documents to which the Borrower is or will be a party,
and who have been appointed as a Borrower's Authorized Representative in
accordance with Section 21 (Borrower's Authorized Representative) of the WIFIA
Loan Agreement;
(b) pursuant to Section 11(a)(ii) of the WIFIA Loan Agreement, the Borrower has
delivered to the WIFIA Lender copies of (i) the Master Ordinance, together with
any amendments, supplements, waivers or modifications thereto (but excluding any
document that solely provides for the issuance or incurrence of Additional
Obligations, hedging Obligations or Interim Financing) and (ii) any Related
Document with respect to which all or a portion of the proceeds are or will be
applied to fund all or any portion of Total Project Costs, in each case that has been
entered into on or prior to the Effective Date, true, correct and complete copies of
which are included in the closing transcripts for the WIFIA Loan, and each such
document is complete, fully executed, and in full force and effect, and all conditions
contained in the Related Documents that are necessary to the closing of the WIFIA
transaction contemplated hereby (if any) have been fulfilled;
(c) pursuant to Section 11(a)(v)(A) of the WIFIA Loan Agreement, (i) the Maximum
Principal Amount, together with the amount of any other credit assistance provided
under the Act to the Borrower, does not exceed forty-nine percent (49%) of
reasonably anticipated Eligible Project Costs; (ii) the aggregate amount of Eligible
Project Costs previously incurred prior to the Effective Date does not exceed fifty-
one percent (51%) of Eligible Project Costs; and (iii) the total federal assistance
provided to the Project, including the Maximum Principal Amount, does not exceed
eighty percent (80%) of Total Project Costs;
Exhibit B-1
3971777.11 048026
(d) pursuant to Section 11(a)(v)(B) of the WIFIA Loan Agreement, the Borrower is in
compliance with NEPA and any applicable federal, state or local environmental
review and approval requirements with respect to the Project;
(e) pursuant to Section 11(a)(v)(C) of the WIFIA Loan Agreement, the Borrower has
(i) obtained a FEIN, as evidenced by the Borrower's W-9 which is included in the
closing transcripts for the WIFIA Loan, and a UEI, in each case as set forth on Part
A of Schedule I (WIFIA Loan Specific Terms) to the WIFIA Loan Agreement, and
(ii) registered with SAM and obtained confirmation of active SAM registration
status, which confirmation is included in the closing transcripts for the WIFIA Loan;
(f) pursuant to Section 11(a)(v)(D) of the WIFIA Loan Agreement, the Borrower has
obtained the WIFIA CUSIP Number, as set forth on Part A of Schedule I (WIFIA
Loan Specific Terms) to the WIFIA Loan Agreement, and which confirmation is
included in the closing transcripts for the WIFIA Loan;
(g)
pursuant to Section 11(a)(v)(E) of the WIFIA Loan Agreement, the representations
and warranties of the Borrower set forth in the WIFIA Loan Agreement and in each
other WIFIA Loan Document to which the Borrower is a party are true and correct
on and as of the date hereof, except to the extent that such representations and
warranties expressly relate to an earlier date, in which case such representations
and warranties were true and correct as of such earlier date;
(h) pursuant to Section 11(a)(v)(F) of the WIFIA Loan Agreement, no Material
Adverse Effect, or any event or condition that could reasonably be expected to have
a Material Adverse Effect, has occurred or arisen since the date of the Application;
and
(i)
pursuant to Section 11(a)(vi) of the WIFIA Loan Agreement, the rating letter
delivered to the WIFIA Lender pursuant to such Section 11(a)(vi) has not been
reduced, withdrawn or suspended as of the Effective Date.
[Signature page follows.]
Exhibit B-2
3971777.11 048026
IN WITNESS WHEREOF, the undersigned has executed this certificate as of the date first
mentioned above.
CITY OF FORT WORTH, TEXAS,
by its authorized representative
By:
Name:
Title:
[Signature Page to Closing Certificate]
Exhibit B-3
3971777.11 048026
ANNEX A TO EXHIBIT B
INCUMBENCY CERTIFICATE
Dated: January 23, 2026
The undersigned certifies that he/she is the City Secretary of the City of Fort Worth, Texas,
a home -rule city operating under a home -rule charter adopted pursuant to Section 5 of Article 11
of the Constitution of the State of Texas and organized and existing under the laws of the State of
Texas (the "Borrower"), and as such he/she is authorized to execute this certificate and further
certifies that the following persons have been elected or appointed, are qualified, and are now
acting as officers or authorized persons of the Borrower in the capacity or capacities indicated
therewith, and that the signatures set forth opposite their respective names are their true and
genuine signatures. He/She further certifies that any of the officers listed on the following page is
authorized to sign agreements and give written instructions with regard to any matters pertaining
to the WIFIA Loan Documents as the Borrower's Authorized Representative (each as defined in
that certain WIFIA Loan Agreement, dated as of January 23, 2026, between the Borrower and the
United States Environmental Protection Agency, acting by and through the Administrator):
[Remainder of this page intentionally left blank.]
[Signature Page to Annex A (Incumbency Certificate)]
Exhibit B-4
3971777.11 048026
Name Title Signature
Jesus Chapa City Manager
Mattie Parker Mayor
Reginald Zeno Chief Financial Officer/
Director of Financial
Management Services
IN WITNESS WHEREOF, the undersigned has executed this certificate as of the date
first mentioned above.
CITY OF FORT WORTH, TEXAS,
by its authorized representative
By:
Name:
Title: City Secretary
[Signature Page to Annex A (Incumbency Certificate)]
Exhibit B-5
3971777.11 048026
EXHIBIT C
FORM OF PUBLIC BENEFITS REPORT
Pursuant to [Section 11(a)(vii)) and] Part D of Schedule V (Reporting Requirements) of the WIFIA
Loan Agreement (as defined below), the City of Fort Worth, Texas (the "Borrower") is providing
this Public Benefits Report in connection with the Mary's Creek Water Reclamation Facility
Project (WIFIA ID — N23107TX). Capitalized terms used in this certificate and not defined shall
have the respective meanings ascribed to such terms in the WIFIA Loan Agreement dated as of
January 23, 2026 (the "WIFIA Loan Agreement"), between the Borrower and the United States
Environmental Protection Agency, acting by and through the Administrator.
Reporting Period: [Prior to the Effective Date] [within ninety (90) days following the Substantial
Completion Date] [within ninety (90) days following the fifth (5th) anniversary of the Substantial
Completion Date]
(i)
The number of total jobs and direct jobs projected to be created by the Project during
the period between the Effective Date and the Substantial Completion Date:
WIFIA projects that the Project will create 2,147 total jobs, of which the Borrower projects
1,235 will be direct jobs.
(ii) Indicate (yes or no) whether the Project will assist the Borrower in complying with
applicable regulatory requirements, and if yes, describe how the project assists with
regulatory compliance:
Yes El
If yes, additional description: The Project will address sanitary sewer overflows in
interceptors that will be offloaded as a result of the Project. The Project will provide cost
efficient conveyance and wastewater treatment for the growing population in the west side
of the Borrower compared to the alternative, which would be to expand the existing water
reclamation facility on the far east side of the Borrower and increase the capacity of
existing interceptors across 20 miles of the Borrower. The Project will also provide a
source of high -quality water that will be available for non -potable reuse purposes on the
west side of the Borrower. This source of reuse water will reduce the need to provide
additional fresh water resources from new reservoirs or other raw water supply sources.
Treated effluent not used for reuse water will be discharged into Mary's Creek, which will
provide additional environmental base flows to support aquatic life.
No ❑
(iii) The Project will assist the Borrower with the following environmental measure:
Amount by which the Project will provide new, expanded, improved, more reliable,
more resilient, or more efficient treatment capacity for wastewater treatment
(measured in MGD capacity at Substantial Completion): 20 MGD
Mary's Creek WRF.• 10 MGD avg / 20 MGD peak
Exhibit C-1
3971777.11 048026
EXHIBIT D
FORM OF REQUISITION
VIA EMAIL
United States Environmental Protection Agency'
1200 Pennsylvania Avenue NW
WJC-E 7334A
Washington, D.C. 20460
Attention: WIFIA Director
Email: WIFIA Portfolio@epa.gov
Re: City of Fort Worth, Texas — Mary's Creek Water Reclamation Facility Project (WIFIA ID
— N23107TX)
Ladies and Gentlemen:
Pursuant to Section 4 (Disbursement Conditions) and Schedule IV (Requisition Procedures) of the
WIFIA Loan Agreement, dated as of January 23, 2026 (the "WIFIA Loan Agreement"), by and
between the CITY OF FORT WORTH, TEXAS (the "Borrower") and the UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY, acting by and through the Administrator (the
"WIFIA Lender"), the Borrower hereby requests a Disbursement in the amount set forth below
in respect of Eligible Project Costs paid or incurred by the Borrower. Capitalized terms used but
not defined herein have the meaning set forth in the WIFIA Loan Agreement.
In connection with this Requisition, the undersigned, as the Borrower's Authorized Representative,
hereby represents and certifies the following:
1.
Project name
Mary's Creek Water Reclamation Facility Project
2.
Borrower name
City of Fort Worth, Texas
3.
WIFIA Loan ID
N23107TX
4.
Borrower UEI
ENS6MKS 1 ZL 18
5.
Borrower FEIN
75-6000528
6.
Requisition number
[_]
7.
Requested Disbursement amount
$[_]
8.
Requested date of Disbursement
(the "Disbursement Date")2
[_]
9.
Total amounts previously disbursed under the
WIFIA Loan Agreement
$[ ]
10.
Wire or ACH transfer instructions (please specify
method)
[ ]
1 If there is a Servicer for the WIFIA Loan, provide a copy to the Servicer as well and include its notice details here.
2 Note this should be the actual disbursement date on which the Borrower requests to receive the funds, not the date
that this Requisition form is submitted to the WIFIA Lender.
Exhibit D-1
3971777.11 048026
11. As of the date hereof, and immediately after giving effect to the Disbursement of WIFIA
Loan proceeds requested under this Requisition, (a) no Default or Event of Default and no
event of default under any other Related Document has occurred and is continuing and (b)
no event that, with the giving of notice or the passage of time or both, would constitute an
event of default under any other Related Document, has occurred and is continuing.
12. No Material Adverse Effect, or any event or condition that could reasonably be expected
to have a Material Adverse Effect, has occurred since the Effective Date.
13. The aggregate amount of all Disbursements (including the requested Disbursement amount
under this Requisition but excluding any interest that is capitalized in accordance with the
WIFIA Loan Agreement) does not exceed (a) the Maximum Principal Amount or (b) the
amount of Eligible Project Costs paid or incurred by the Borrower.
14. The Eligible Project Costs for which reimbursement or payment is being requested has not
been reimbursed or paid by any previous disbursement of (a) WIFIA Loan proceeds or
(b) any other source of funding for the Project (other than any Interim Financing or cash of
the Borrower) as identified in the Project Budget.
15. The Borrower has complied, and has required each of its contractors and subcontractors at
all tiers with respect to the Project to comply, with all applicable laws, rules, regulations
and requirements, including 40 U.S.C. §§ 3141-3144, 3146, and 3147 (relating to Davis -
Bacon Act requirements) (and regulations relating thereto) and 33 U.S.C. § 3914 (relating
to American iron and steel products). Supporting documentation, such as certified payroll
records and certifications for all iron and steel products used for the Project, are being
maintained and are available for review upon request by the WIFIA Lender.
16. The representations and warranties of the Borrower set forth in the WIFIA Loan Agreement
and in each other WIFIA Loan Document are true and correct as of the date hereof and as
of the Disbursement Date, except to the extent such representations and warranties
expressly relate to an earlier date (in which case, such representations and warranties are
true and correct as of such earlier date).
17. The Borrower has delivered all required deliverables under and in compliance with the
requirements of Schedule V (Reporting Requirements), except as has been otherwise
agreed by the WIFIA Lender.3
18. The amount hereby being requested for Disbursement is with respect to Eligible Project
Costs for which [all][a portion][none] of the Eligible Project Costs Documentation was
previously submitted to and approved by the WIFIA Lender in accordance with Schedule
IV (Requisition Procedures) and Schedule V (Reporting Requirements) of the WIFIA Loan
Agreement. The [following table below] [attached excel sheet] sets out a summary of any
Eligible Project Costs that have not otherwise been previously submitted to the WIFIA
3 The most recent quarterly progress report should set out a summary of the progress of construction of the Project, as
well as a general description of the work done for which the funds being requisitioned are being applied and a
summary of any material changes/risks. If not, PM should request additional information (including a risk register,
if applicable).
Exhibit D-2
3971777.11 048026
Lender for approval, and supporting Eligible Project Costs Documentation in respect of
such new Eligible Project Costs is attached hereto. 4
WIFIA USE ONLY
Vendor or
Contractor
Names
Invoice
Numbers
Invoice
Date
Payment
Date
Invoice
Amount
WIFIA
Requested
Amount?
Activity
Types
Description
of Activity9
Approved
Amount
Notes
19. [The proceeds of the Disbursement of WIFIA Loan proceeds requested under this
Requisition will be used by the Borrower to pay in full (A) any outstanding Servicing Fees
due and payable under Section 10 (Fees and Expenses) and (B) all invoices delivered by
the WIFIA Lender to the Borrower, for the fees and expenses of the WIFIA Lender's
counsel and financial advisors and any auditors or other consultants retained by the WIFIA
Lender for the purposes hereof.]1°
20. [For the avoidance of doubt, the certifications set forth in paragraphs 11 through 18 of this
Requisition address the matters set forth in Section 11(b)(i) (Conditions Precedent to
Disbursements) and the certification set forth in paragraph 19 of this Requisition addresses
the matters set forth in Section 11(b)(iii) (Conditions Precedent to Disbursements).]11
The undersigned acknowledges that if the Borrower makes a false, fictitious, or fraudulent claim,
statement, submission, or certification to the Government in connection with the Project, the
Government reserves the right to impose on the Borrower the penalties of 18 U.S.C. § 1001, to the
extent the Government deems appropriate.
4 See Schedules IV and V and Exhibit E of the WIFIA Loan Agreement for additional details on EPC Documentation.
5 If seeking reimbursement for internal costs, enter "Intemally financed activities."
6 Vendor's number indicated on the invoice sent to the Borrower.
If the amount requested for reimbursement by the WIFIA Lender is less than the total amount of the invoice, include
an explanation for the difference.
8 Specify whether activity is: (a) Development phase activity, which includes planning, preliminary engineering,
design, environmental review, revenue forecasting and other pre -construction activities; (b) Construction, which
includes construction, reconstruction, rehabilitation and replacement activities; (c) Acquisition of real property,
which includes acquiring an interest in real property, environmental mitigation, construction contingencies and
acquisition of equipment; (d) Carrying costs, including capitalized interest, as necessary to meet market
requirements, reasonably required reserve funds, capital issuance expenses and other carrying costs during
construction; (e) WIFIA fees, including for application and credit processing; or (f) Other, with an explanation in
the "Description of Activity" column.
9 Provide a brief description of the activities included in the invoice for which WIFIA funds are being requested and
any other notes that will aid in the review of the disbursement request.
1° This paragraph should be included only in the Requisition requesting the initial Disbursement of WIFIA funds.
11 This paragraph should be included only in the Requisition requesting the initial Disbursement of WIFIA funds.
Exhibit D-3
3971777.11 048026
Date: CITY OF FORT WORTH, TEXAS,
by its authorized representative
By:
Name:
Title:
Exhibit D-4
3971777.11 048026
EXHIBIT E
FORM OF CERTIFICATION OF ELIGIBLE PROJECT COSTS DOCUMENTATION
VIA EMAIL
United States Environmental Protection Agency'
1200 Pennsylvania Avenue NW
WJC-E 7334A
Washington, D.C. 20460
Attention: WIFIA Director
Email: WIFIA Portfolio@epa.gov
Re: City of Fort Worth, Texas — Mary's Creek Water Reclamation Facility Project (WIFIA ID
— N23107TX)
Ladies and Gentlemen:
Pursuant to Part C of Schedule V (Reporting Requirements) of the WIFIA Loan Agreement, dated
as of January 23, 2026 (the "WIFIA Loan Agreement"), by and between the CITY OF FORT
WORTH, TEXAS (the "Borrower") and the UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, acting by and through the Administrator (the "WIFIA Lender"), the
Borrower hereby presents this certificate in connection with the Borrower's delivery of Eligible
Project Costs Documentation to the WIFIA Lender. Capitalized terms used but not defined herein
have the meaning set forth in the WIFIA Loan Agreement.
The undersigned does hereby represent and certify the following:
1. This certificate is being delivered to the WIFIA Lender in connection with the Eligible
Project Costs during the period between [ ] and [ ] (the "Quarterly Period").
2. A summary of the Eligible Project Costs incurred, invoiced and/or paid (as the case may
be) is set out in the [attached excel sheet][table on the following page:]
1 If there is a Servicer for the WIFIA Loan, provide a copy to the Servicer as well and include its notice details here.
Exhibit E-1
3971777.11 048026
WIFIA USE ONLY
Vendor or
Contractor
Name2
Invoice
Number3
Invoice
Date
Payment
Date
Invoice
Amount
Activity
Type4
Description
of Activity5
Approved
Amount
Notes
3. The anticipated sources of funding for such Eligible Project Costs are [listed below][set
forth in the attached excel sheet].
4. Supporting Eligible Project Costs Documentation for the above Eligible Project Costs for
the Quarterly Period are also attached hereto.6
5. The most recently delivered Construction Monitoring Report delivered in accordance with
Part C of Schedule V (Reporting Requirements) sets out a summary of the progress of
construction of the Project, no change has occurred since the date of such Construction
Monitoring Report that could reasonably be expected to cause a Material Adverse Effect,
and the Borrower is otherwise in compliance with Part C of Schedule V (Reporting
Requirements).
Date: CITY OF FORT WORTH, TEXAS,
by its authorized representative7
By:
Name:
Title:
2 If the expectation is to seek reimbursement for internal costs, enter "Internally financed activities."
3 Vendor's number indicated on the invoice sent to the Borrower.
4 Specify whether activity is: (a) Development phase activity, which includes planning, preliminary engineering,
design, environmental review, revenue forecasting and other pre -construction activities; (b) Construction, which
includes construction, reconstruction, rehabilitation and replacement activities; (c) Acquisition of real property,
which includes acquiring an interest in real property, environmental mitigation, construction contingencies and
acquisition of equipment; (d) Carrying costs, including capitalized interest on other Project Obligations during
construction, as necessary to meet market requirements, reasonably required reserve funds, capital issuance expenses
and other carrying costs during construction; (e) WIFIA fees, including for application and credit processing; or (f)
Other, with an explanation in the "Description of Activity" column.
5 Provide a brief description of the activities included in the invoice for which WIFIA funds are being requested and
any other notes that will aid in the review of the documentation.
6 See Schedules IV and V of the WIFIA Loan Agreement for additional details on EPC Documentation.
7 To be executed by the Borrower's Authorized Representative.
Exhibit E-2
3971777.11 048026
EXHIBIT F
FORM OF CONSTRUCTION MONITORING REPORT
VIA EMAIL
United States Environmental Protection Agency
1200 Pennsylvania Avenue NW
WJC-E 7334A
Washington, DC 20460
Attn: WIFIA Director
Email: WIFIA_Portfolio@epa.gov
Re: City of Fort Worth, Texas — Mary's Creek Water Reclamation Facility Project (WIFIA ID —
N23107TX)
This Construction Monitoring Report for the period of [insert relevant quarterly period] (the
"Quarterly Period") is provided pursuant to Part C of Schedule V (Reporting Requirements) of
the WIFIA Loan Agreement, dated as of January 23, 2026 (the "WIFIA Loan Agreement"), by
and between the CITY OF FORT WORTH, TEXAS (the "Borrower") and the UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY, acting by and through the Administrator of the
Environmental Protection Agency (the "WIFIA Lender"). Unless otherwise defined herein, all
capitalized terms in this Construction Monitoring Report have the meanings assigned to those
terms in the WIFIA Loan Agreement.
1. Project Status. Provide a narrative summary of the Project's construction progress during
the Quarterly Period, including with respect to the Project components or sub -projects
where appropriate. Complete the table in Appendix A to update the Project scope, schedule,
and costs with the latest information.
2. Current Projected Substantial Completion Date:
If the current Projected Substantial Completion Date differs than the date set forth in the
Construction Monitoring Report most recently delivered to the WIFIA Lender (or, if no
such report has yet been provided, the date of the Projected Substantial Completion Date
set forth in the WIFIA Loan Agreement as of the Effective Date), provide a description in
reasonable detail for such projected delay or difference:
3. Material Problems (if any)
Exhibit F-1
3971777.11 048026
Note any problems encountered or anticipated during the construction of the Project during
the Quarterly Period that (1) impedes Project completion within the scope, costs, and
schedule outlined in the WIFIA Loan Agreement or (2) relates to unforeseen complications
in connection with the construction of the Project. This may include commissioning/start-
up issues, constructability issues for the Project as planned, adverse impacts to Project
surroundings, changes in or issues with meeting environmental or federal compliance
requirements, and unanticipated or abnormal permit approval timelines. Include an
assessment of the impact and any current plans to address the problems.
4. Other Matters Related to the Project (if applicable)
Date: CITY OF FORT WORTH, TEXAS,
By:
Name:
Title:
Exhibit F-2
3971777.11 048026
APPENDIX A
Project Scope
Project Schedule
Project Costs
Project
Component
Completed
(Y/N)
Contract/
Vendor
Bid
Advertisem
ent Date
Contract
Award Date
NTP
Effective
Date
Original
Substantial
Completion
Date
Estimated
Substantial
Completion
Date
Original
Contract
Amount
Estimated
Costs to
Complete
Costs
Earned or
Paid to
Date
Total
Table Definitions:
Project Component — project name or ID as tracked by the borrower
Complete (Y/N) — indication that project is complete, and no additional updates will be provided
Contract/Vendor — the contract identifier and contractor that is/will be completing the project construction.
Bid Advertisement Date — the date the bid was advertised
Contract Award Date — the date the contract was awarded
NTP Effective Date — the effective date to proceed with the construction in the Notice to Proceed
Original Substantial Completion Date — the substantial completion date for the given project as noted in the original contract award
Estimated Substantial Completion Date — the latest date estimate for substantial completion for the given project component
Original Contract Amount — the original contract award amount
Estimated Costs to Complete — the latest cost estimates to complete the given project component
Costs Earned or Paid to Date — the latest incurred contract costs for the given project component
Total — Total the cost amounts across all project components and contracts
1 Appendix A summarizes all project components that will be bid in the next quarter, are currently under construction,
or have completed construction. It should be a cumulative list of projects that is updated each quarter. A Microsoft
Excel spreadsheet with similar table format is acceptable.
Exhibit F-3
3971777.11 048026
EXHIBIT G
FORM OF CERTIFICATE OF SUBSTANTIAL COMPLETION
[Letterhead of Borrower]
[Date]
VIA EMAIL
United States Environmental Protection Agency
1200 Pennsylvania Avenue NW
WJC-E 7334A
Washington, DC 20460
Attn: WIFIA Director
Email: WIFIA_Portfolio@epa.gov
Project: Mary's Creek Water Reclamation Facility Project (WIFIA ID — N23107TX)
Dear Director:
This Notice is provided pursuant to Part E of Schedule V (Reporting Requirements) of that certain
WIFIA Loan Agreement (the "WIFIA Loan Agreement"), dated as of January 23, 2026, by and
between the CITY OF FORT WORTH, TEXAS (the "Borrower") and the UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY, acting by and through its Administrator (the
"WIFIA Lender").
Unless otherwise defined herein, all capitalized terms in this certificate have the meanings assigned
to those terms in the WIFIA Loan Agreement.
I, the undersigned, in my capacity as the Borrower's Authorized Representative and not in my
individual capacity, do hereby certify to the WIFIA Lender that:
(a) the Project has satisfied each of the requirements for Substantial Completion set forth in
the Construction Contracts;
(b) Substantial Completion has been declared under each of the relevant Construction
Contracts and copies of the notices of Substantial Completion under such agreements are
attached to this certification;
(c) Substantial Completion, as defined in the WIFIA Loan Agreement, has been achieved and
the Substantial Completion Date is [ ]; and
(d) The total federal assistance provided to the Project, including the Maximum Principal
Amount, does not exceed eighty percent (80%) of Total Project Costs.
CITY OF FORT WORTH, TEXAS,
by its authorized representative
By:
Exhibit G-1
Error! Unknown document property name.
3971777.11 048026
Name:
Title:
Exhibit G-2
Error! Unknown document property name.
3971777.11 048026
EXHIBIT H-1
FORM OF OPINION FROM CITY ATTORNEY OF BORROWER
[Letterhead of City Attorney]
[Closing Date]
United States Environmental Protection Agency,
acting by and through the Administrator of the Environmental Protection Agency
1200 Pennsylvania Avenue NW
Washington, D.C. 20460
Re: $347,655,441 City of Fort Worth, Texas Water and Sewer System Revenue Bond, Series
2026 (Mary's Creek Water Reclamation Facility Project) (WIFIA ID — N23107TX) (the
"WIFIA Bond")
Ladies and Gentlemen:
I am the City Attorney for the City of Fort Worth, Texas (the "City" or "Borrower"), a
political subdivision of the State of Texas, and am rendering this opinion in connection with the
WIFIA Loan Agreement, dated as of January 23, 2026 (the "WIFIA Loan Agreement"), by and
between the City and the United States Environmental Protection Agency, an agency of the United
States of America, acting by and through the Administrator of the Environmental Protection
Agency (the "WIFIA Lender") relating to WIFIA Loan Number — N23107TX, and, pursuant to
the terms of the WIFIA Loan Agreement, the issuance and delivery of the WIFIA Bond.
The City has authorized the City of Fort Worth, Texas Water and Sewer System Revenue
Financing Program pursuant to the "Master Ordinance Establishing the City of Fort Worth, Texas
Water and Sewer System Revenue Financing Program" adopted by the City Council on December
10, 1991 (the "Master Ordinance") and the "Forty -Seventh Supplemental Ordinance Authorizing
the Issuance and Sale of City of Fort Worth, Texas Water and Sewer System Revenue Bond, Series
2026 (Mary's Creek Water Reclamation Facility Project) (WIFIA ID — N23107TX)" adopted by
the City Council on January 13, 2026 (the "Forty -Seventh Supplement"). The Master Ordinance
and Forty -Seventh Supplement are collectively referred to as the "Ordinance Documents."
The City has authorized the WIFIA Bond pursuant to the Ordinance Documents and the
Award Certificate delivered in accordance therewith. Capitalized terms used in this opinion and
not otherwise defined herein shall have the meaning given in the Ordinance Documents.
In connection with this opinion, I or my designated attorneys have examined executed
copies of the WIFIA Loan Agreement, the Ordinance Documents, and such documents and records
of the City, certificates of public officials and officers of the City, and such other documents as we
have deemed necessary or appropriate for the purposes of this opinion. In all such examinations,
I, or my designated attorneys, have assumed the authenticity of all documents and agreements
submitted to me as originals, that all signatures on documents and instruments executed by the
City are genuine, and that all documents submitted to me as copies conform to the originals. In
Exhibit H 1-1
Error! Unknown document property name.
3971777.11 048026
addition, for purposes of this opinion, I, or my designated attorneys, have assumed the due
authorization, execution, and delivery of the documents by all parties other than the City.
Based upon and subject to the foregoing and the additional qualifications and assumptions
set forth herein, I am of the opinion that:
1. The Borrower is a home rule city, public body corporate and politic, duly organized
and existing under the laws of the State, including Article XI, Section 5 of the Texas Constitution
and the City of Fort Worth home -rule charter.
2. The Borrower has all requisite power and authority to own and operate the System
and to execute and deliver, and to perform its obligations under, the WIFIA Loan Documents (as
defined in the WIFIA Loan Agreement) to which it is a party.
3. The execution and delivery by the Borrower of, and the performance of its
obligations under, the WIFIA Loan Documents to which it is a party, have been duly authorized
by all necessary organizational or regulatory action, and other than the Borrower's organizational
documents, the Master Ordinance, the WIFIA Supplemental Ordinance, the approving opinion of
the State Attorney General, and the registration certificate of the Comptroller of Public Accounts
of the State, no further instruments or documents are necessary for the Borrower to execute and
deliver, and to perform its obligations under, the WIFIA Loan Documents to which it is a party
and to consummate and implement the transactions contemplated thereby. No authorization,
consent, or other approval of, or registration, declaration or other filing with any governmental
authority of the United States of America or of the State is required on the part of the Borrower
for the execution and delivery by such party of, and the performance of such party under, any
WIFIA Loan Documents to which it is a party except the approving opinion of the State Attorney
General and the registration certificate of the Comptroller of Public Accounts of the State timely
obtained by the Borrower prior to the issuance of the WIFIA Bond.
4. The Borrower has duly executed and delivered the WIFIA Loan Documents to
which it is a party and, assuming the due authorization, execution and delivery of such documents
by the other parties thereto, each such WIFIA Loan Document constitutes the legal, valid, and
binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms.
However, the enforceability of the obligations of the City under such WIFIA Loan Documents
may be limited or otherwise affected by (a) bankruptcy, insolvency, reorganization, moratorium,
and other laws affecting the rights of creditors generally; (b) principles of equity, whether
considered at law or in equity; and (c) the application of Texas law relating to governmental
immunity applicable to governmental entities.
5. The Forty -Seventh Supplement, authorizing the WIFIA Loan Agreement, was duly
adopted by the Fort Worth City Council on January 13, 2026, at a meeting thereof that was duly
called and held pursuant to law and with all public notice required by law, and at which a quorum
was present and acting throughout, and the Forty -Seventh Supplement is in full force and effect
and has not been modified, amended, rescinded, or repealed.
6. The execution and delivery by the Borrower of, and compliance with the provisions
of, the WIFIA Loan Documents to which it is a party in each case do not (i) violate the
organizational documents of the Borrower, (ii) violate the law of the United States of America or
Exhibit H 1-2
Error! Unknown document property name.
3971777.11 048026
of the State, or (iii) conflict with or constitute a breach of or default under any material agreement
or other instrument known to such counsel to which the Borrower is a party, or to the best of such
counsel's knowledge, after reasonable review, any court order, consent decree, statute, rule,
regulation or any other law to which the Borrower is subject.
7. The Borrower is not an investment company required to register under the
Investment Company Act of 1940, as amended.
8. To my knowledge after due inquiry, there are no actions, suits, proceedings,
investigations against the Borrower by or before any court, arbitrator, or any other Governmental
Authority in connection with the proposed transaction, the Project, the System, or any Related
Documents (as defined in the WIFIA Loan Agreement) that are pending, that prohibit or affect, or
if adversely determined could reasonably be expected to prohibit or affect, the ability or authority
of the Borrower to execute, deliver, or perform under the WIFIA Loan Documents to which it is a
party.
This opinion may not be relied upon by any other person except those specifically
addressed in this letter.
Very truly yours,
Exhibit H 1-3
Error! Unknown document property name.
3971777.11 048026
EXHIBIT H-2
FORM OF OPINION FROM BOND COUNSEL TO BORROWER
[Letterhead of Bond Counsel]
[Closing Date]
United States Environmental Protection Agency,
acting by and through the Administrator of the Environmental Protection Agency
1200 Pennsylvania Avenue NW
Washington, D.C. 20460
Re: $347,655,441 City of Fort Worth, Texas Water and Sewer System Revenue Bond, Series
2026 (Mary's Creek Water Reclamation Facility Project) (WIFIA ID — N23107TX) (the
"WIFIA Bond")
Ladies and Gentlemen:
We have acted as co -bond counsel to the City of Fort Worth, Texas (the "City") in
connection with the execution and delivery of the WIFIA Loan Agreement, dated as of January
23, 2026 (the "WIFIA Loan Agreement"), by and between the City and the United States
Environmental Protection Agency, an agency of the United States of America, acting by and
through the Administrator of the Environmental Protection Agency (the "WIFIA Lender") relating
to WIFIA Loan Number — N23107TX, and, pursuant to the terms of the WIFIA Loan Agreement,
the issuance and delivery of the WIFIA Bond. The City has authorized the City of Fort Worth,
Texas Water and Sewer System Revenue Financing Program pursuant to the "Master Ordinance
Establishing the City of Fort Worth, Texas Water and Sewer System Revenue Financing Program"
adopted by the City Council on December 10, 1991 (the "Master Ordinance") and the "Forty -
Seventh Supplemental Ordinance Authorizing the Issuance and Sale of City of Fort Worth, Texas
Water and Sewer System Revenue Bond, Series 2026 (Mary's Creek Water Reclamation Facility
Project) (WIFIA ID — N23107TX)" adopted by the City Council on January 13, 2026 (the "Forty -
Seventh Supplement"). The City has authorized the WIFIA Bond pursuant to the Master
Ordinance, the Forty -Seventh Supplement and the Award Certificate delivered in accordance
therewith. Capitalized terms used in this opinion and not otherwise defined herein shall have the
meanings given in the WIFIA Loan Agreement.
In connection with this opinion, we have examined executed copies of the WIFIA Loan
Documents, the Ordinance Documents and such documents and records of the City, certificates of
public officials and officers of the City, and such other documents as we have deemed necessary
or appropriate for the purposes of this opinion.
Based upon the foregoing, we are of the opinion that:
Exhibit H2-1
Error! Unknown document property name.
3971777.11 048026
1. The City validly exists as a home -rule city operating under a home -rule charter
adopted pursuant to Section 5 of Article 11 of the Constitution of the State, with good right and
power to issue the WIFIA Bond, and the City has taken all necessary action required to be taken
to ensure that the WIFIA Loan Agreement complies in all respects with Chapters 1371 and 1502,
Texas Government Code, as amended to the date hereof (jointly, the "Acts"), the Master Ordinance
and the WIFIA Supplemental Ordinance.
2. The City has the right and power under the laws of the State, including the Acts, to
enter into the Ordinance Documents, the Paying Agent/Registrar Agreement and the WIFIA Loan
Documents and to issue the WIFIA Bond, and each has been duly authorized, executed and
delivered by the City, and assuming the due authorization, execution and delivery of such
documents by the other parties thereto, is in full force and effect, and constitutes a legal, valid and
binding agreement of the City enforceable against the City in accordance with its respective terms
and conditions.
3. The WIFIA Bond (i) is secured by the Pledged Collateral, (ii) is a Parity Obligation
entitled to all of the benefits of a Party Obligation under the Master Ordinance and all other WIFIA
Loan Documents, (iii) is enforceable under the laws of the State without any further action by the
City or any other Person, and (iv) ranks pari passu in right of payment and right of security with
all other Parity Obligations and senior in right of payment and right of security to all Subordinated
Debt.
4. The Ordinance Documents create a valid and binding assignment and pledge of the
Pledged Collateral to secure the payment of the principal of, interest on, and other amounts payable
in respect of, the WIFIA Bond; Chapter 1208, Texas Government Code, as amended
("Chapter 1208"), provides that a security interest established by an issuer that secures payment
or performance of public securities, such as the Lien on, pledge of and security interest in the
Pledged Collateral granted by the City in the Ordinance Documents, is valid and effective and that
such security interest will remain continuously perfected without the need for any flings or further
action by such an issuer until the security interest terminates according to its terms; since
Chapter 1208 applies to the issuance or incurrence of the WIFIA Bond and the Lien on, pledge of
and security interest in the Pledged Collateral, such security interest is valid, effective and
perfected and will remain so irrespective of whether any party has notice of the pledge and without
the need for any physical delivery, recordation, filing or other further act.
5. To our knowledge, all actions by the City that are required for the application of
Gross Revenues and Pledged Revenues as required under the WIFIA Loan Documents have been
duly and lawfully made.
6. The City has complied with the requirements of State law to lawfully pledge the
Pledged Collateral and use the Gross Revenues and the Pledged Revenues as required by the terms
of the WIFIA Loan Documents.
The foregoing opinions are subject to the qualification that the enforceability of the
Ordinance Documents and the WIFIA Loan Documents are limited by, and the performance by
the City of its obligations thereunder, is subject to, applicable bankruptcy, reorganization,
insolvency, moratorium, liquidation or other similar laws now or hereafter enacted relating to
Exhibit H2-2
Error! Unknown document property name.
3971777.11 048026
creditors' rights generally or by principles of equity which permit the exercise of judicial discretion.
Additionally, we are members of the State Bar of Texas and render no opinion on the laws
of any jurisdiction other than the laws of the State of Texas and the federal laws of the United
States of America.
Our opinions are limited to the present laws and to the facts as they presently exist. We
assume no obligation to revise or supplement this opinion should the present laws of the
jurisdictions referred to above be changed by legislative action, judicial decision, or otherwise.
The foregoing opinions represent our legal judgment based upon a review of existing legal
authorities that we deem relevant to render such opinions and are not a guarantee of a result. This
opinion is being rendered solely to the addressee hereof and no other person is entitled to rely upon
it without our written consent.
Very truly yours,
Exhibit H2-3
Error! Unknown document property name.
3971777.11 048026
Exhibit C
Term Sheet
4003050.2 048026 DRFT
Execution Version
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
[Date], 2025
City of Fort Worth, Texas
100 Fort Worth Trail, 12th Floor
Fort Worth, TX 76102
RE: WIFIA Term Sheet for the City of Fort Worth, Texas — Mary's Creek Water Reclamation
Facility Project (WIFIA ID — N23107TX)
Ladies and Gentlemen:
This WIFIA Term Sheet (this "Term Sheet") constitutes (a) the approval of the United
States Environmental Protection Agency, acting by and through the Administrator of the
Environmental Protection Agency (hereinafter, the "USEPA"), of the application for credit
assistance of the Borrower (as defined below) received December 17, 2024 (the "Application")
and (b) the agreement of USEPA to provide financing for the above -referenced project (as further
described below, the "Project") in the form of a secured loan (the "WIFIA Loan"), pursuant to
the Water Infrastructure Finance and Innovation Act ("WIFIA"), § 5021 et seq. of Public Law
113-121 (as amended, and as may be further amended from time to time, the "Act"), codified as
33 U.S.C. §§ 3901-3915, subject in all respects to (i) the terms and conditions contained herein
and (ii) the execution and delivery of the WIFIA loan agreement to be entered into on or after the
date hereof (the "WIFIA Loan Agreement") on the terms and conditions acceptable to the
USEPA contained therein. Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed to such terms in the WIFIA Loan Agreement.
By executing this Term Sheet, the Borrower confirms its agreement to reimburse USEPA
for any and all fees and expenses that USEPA incurs for legal counsel, financial advice, and other
consultants in connection with the evaluation of the Project and the negotiation and preparation of
the WIFIA Loan Agreement and related documents, whether or not such agreement is ultimately
executed.
This Term Sheet shall be governed by the federal laws of the United States of America if
and to the extent such federal laws are applicable, and the internal laws of the State of Texas, if
and to the extent such federal laws are not applicable. This Term Sheet, and any amendments,
waivers, consents or supplements hereto may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one and the same
instrument. Electronic delivery of an executed counterpart of a signature page shall be effective as
delivery of an original executed counterpart.
INDICATIVE TERMS OF THE WIFIA LOAN
WIFIA LENDER
United States Environmental Protection Agency, an agency
of the United States of America, acting by and through the
Administrator of the Environmental Protection Agency (the
"WIFIA Lender").
BORROWER
City of Fort Worth, Texas, a home -rule city operating under
a home -rule charter adopted pursuant to Section 5 of Article
11 of the Constitution of the State of Texas and organized
and existing under the laws of the State of Texas (the
"Borrower").
PROJECT
The project is the Mary's Creek Water Reclamation Facility
Project, located in the City of Fort Worth, Texas, and consists
of the design and construction of the Mary's Creek Water
Reclamation Facility, including the design and construction
of related lift stations, force mains and associated reasonably
necessary sewer infrastructure (the "Project").
WIFIA LOAN AMOUNT
A maximum principal amount (sum of disbursements and
excluding capitalized interest) not to exceed $347,655,441;
provided that (a) the maximum principal amount of the
WIFIA Loan, together with the amount of any other credit
assistance provided under the Act, shall not exceed forty-
nine percent (49%) of reasonably anticipated Eligible Project
Costs, and (b) the total federal assistance for the Project,
including but not limited to the maximum principal amount
of the WIFIA Loan and all federal grants, shall not exceed
eighty percent (80%) of Total Project Costs.
INTEREST RATE
The WIFIA Loan shall bear interest at a fixed rate, calculated
by adding one basis point (0.01%) to the rate of securities of
a similar maturity (based on the weighted average life of the
WIFIA Loan) as published, on the execution date of the
WIFIA Loan Agreement, in the United States Treasury
Bureau of the Fiscal Service's daily rate table for State and
Local Government Series (SLGS) securities.
Interest shall accrue and be computed on the basis of a 360-
day year of twelve (12) thirty (30) day months.
The WIFIA Loan shall also bear default interest at a rate of
200 basis points above the otherwise applicable interest rate,
at such times and upon such terms as provided in the WIFIA
Loan Agreement.
PAYMENT DATES
Principal and interest on the WIFIA Loan shall be repaid in
accordance with the terms set forth in the WIFIA Loan
Agreement.
2
Subject to the terms of the WIFIA Loan Agreement, the Debt
Service Payment Commencement Date shall in no event be
later than five (5) years after the Substantial Completion
Date of the Project.
Subject to the terms of the WIFIA Loan Agreement,
(a) during the Capitalized Interest Period, no principal or
interest shall be paid and (b) during the Interest Only Period,
no payment of principal will be due and payable and the
WIFIA Debt Service payable by the Borrower shall consist
of one hundred percent (100%) of the amount of interest then
due and payable on the Outstanding WIFIA Loan Balance.
FINAL MATURITY DATE
The earliest of (a) February 15, 2059; (b) the date on which
the maturity of the WIFIA Loan and corresponding WIFIA
Bond have been subject to mandatory redemption or
prepayment (as the case may be) prior to maturity thereof in
accordance with the WIFIA Loan Agreement; and (c) the
Principal Payment Date immediately preceding the date that
is thirty-five (35) years following the Substantial Completion
Date, which is projected to be December 31, 2029.
DEDICATED SOURCE OF
REPAYMENT
The dedicated source of repayment for the WIFIA Loan shall
be the Pledged Revenues, as defined in the WIFIA Loan
Agreement, and which consist primarily of the net revenues
of the Borrower's combined water and sewer system.
SECURITY AND LIEN
PRIORITY
As evidence of the Borrower's obligation to repay the
WIFIA Loan, the Borrower shall issue and deliver to the
WIFIA Lender, as the registered owner, on or prior to the
Effective Date, the WIFIA Bond. The WIFIA Bond shall be
issued pursuant to the Master Ordinance and the WIFIA
Supplemental Ordinance and shall be a Parity Obligation
under the Master Ordinance, secured by a first Lien on and
pledge of the Pledged Revenues, including such revenues
within the System Fund created by the Master Ordinance, in
accordance with the Master Ordinance and the WIFIA
Supplemental Ordinance; provided, that such pledge shall
exclude any grants, donations, income or other funds
received or to be received from the Federal Government. The
WIFIA Bond shall be entitled to all of the benefits of a Parity
Obligation under the Master Ordinance and all other WIFIA
Loan Documents.
The Lien on the Pledged Revenues to secure the WIFIA Loan
(and corresponding WIFIA Bond) for the benefit of the
WIFIA Lender is and shall be (a) on a parity in right of
payment and right of security to the Liens on the Pledged
Revenues in favor of all other Parity Obligations and (b)
3
senior in right of payment and right of security to any Lien
on the Pledged Revenues in favor of any Subordinated Debt.
RATE COVENANT
As set forth in further detail in Section 3 (Rate Covenant) of
the Master Ordinance and in the WIFIA Loan Agreement,
the Borrower shall fix, establish, maintain and collect such
rates, charges and fees for the use and availability of the
System at all times as are necessary to produce Gross
Revenues and other Pledged Revenues sufficient:
(a) to pay all current Operating Expenses;
(b) to produce Net Revenues for each Borrower Fiscal Year
at least equal to the Annual Debt Service Requirements
(as defined in the Master Ordinance) during such
Borrower Fiscal Year of the then Outstanding Parity
Obligations; and
(c) to pay all other financial obligations of the System
reasonably anticipated to be paid from Gross Revenues.
ADDITIONAL
As set forth in further detail in the WIFIA Loan Agreement,
INDEBTEDNESS
the Borrower shall not issue or incur any Additional Parity
Obligations unless the conditions described in Section 15(a)
(Indebtedness) of the WIFIA Loan Agreement are satisfied,
including that the Borrower shall have complied with all
requirements of the Master Ordinance for the issuance of
such Additional Parity Obligations. Such requirements, as
set forth in Section 8 (Issuance of Additional Obligations) of
the Master Ordinance include the requirement that, prior to
the issuance or incurrence of any such Additional Parity
Obligations:
(a) a Designated Financial Officer (as defined in the Master
Ordinance) shall deliver to the Borrower a certificate
stating that, to the best of his or her knowledge, the
Borrower is in compliance with all covenants contained
in the Master Ordinance and any Supplemental
Ordinance (including the WIFIA Supplemental
Ordinance), is not in default in the performance and
observance of any of the terms, provisions and
conditions of the Master Ordinance and all such
Supplemental Ordinances, and the Funds and Accounts
(each as defined in the Master Ordinance) securing the
Parity Obligations then Outstanding as established in
accordance with the terms of the Master Ordinance and
any Supplemental Ordinance contain the amount then
required to be therein; and
(b) an Accountant (as defined in the Master Ordinance)
signs a written certificate to the effect that, in the opinion
4
thereof, during either the immediately preceding
Borrower Fiscal Year, or any twelve consecutive
calendar month period ending not more than ninety (90)
days prior to the date of the then proposed Additional
Parity Obligations, the Net Revenues were at least equal
to (A) 1.25 times the average Annual Debt Service
Requirements of the Parity Obligations to be
Outstanding and (B) 1.10 times the Annual Debt Service
Requirements of the Parity Obligations to be
Outstanding in the Borrower Fiscal Year during which
such Annual Debt Service Requirements are scheduled
to be the greatest, after the issuance of the then proposed
Additional Parity Obligations.
The foregoing requirements are subject to all terms and
conditions of Section 8 (Issuance of Additional Obligations)
of the Master Ordinance, including, without limitation, the
permissible adjustments to Net Revenues for purposes of the
Accountant's determination in clause (b) above, as specified
in Section 8(e) (Determination of Net Revenues) of the
Master Ordinance, and the limitation on short-term Parity
Obligations under Section 8(b) (Short -Term Parity
Obligations) of the Master Ordinance.
Additionally, the Borrower may not create, incur or suffer to
exist (A) any Obligations (i) the payments with respect to
which are senior or prior in right to the payment by the
Borrower of the WIFIA Bond and the other Parity
Obligations or (ii) secured by a Lien on the Pledged
Revenues that is senior to the Lien on the Pledged Revenues
in favor of the WIFIA Lender, or (B) any Obligations, all or
a portion of the proceeds of which are or will be applied at
any time to fund all or any portion of Total Project Costs,
that are secured by a Lien on any assets or property of the
Borrower other than the Pledged Revenues, which may
include Pledged Revenues remaining after the payment of
the Parity Obligations.
RESTRICTED PAYMENTS
AND TRANSFERS
The Borrower shall not permit Gross Revenues or other
assets of the System, or any funds in any accounts held under
the Master Ordinance or in any other fund or account held by
or on behalf of the Borrower with respect to the System or
the Pledged Revenues, to be paid or transferred or otherwise
applied for purposes other than ownership, operation or
maintenance of the System or as otherwise permitted in
accordance with the Master Ordinance.
5
WIFIA LOAN
DOCUMENTATION
The WIFIA Loan shall be subject to the preparation,
execution and delivery of the WIFIA Loan Agreement, the
WIFIA Bond and any other loan documentation required by
the WIFIA Lender in connection therewith, in each case
acceptable to the WIFIA Lender and the Borrower, which
will contain certain conditions precedent, representations
and warranties, affirmative and negative covenants, events of
default, and other provisions as agreed between the WIFIA
Lender and the Borrower.
[Signature pages follow]
6
If the foregoing terms are acceptable, please countersign this letter in the space indicated
below.
Sincerely,
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, acting by and
through the Administrator of the United States
Environmental Protection Agency
By:
Name: Lee M. Zeldin
Title: Administrator
[Signature page to City of Fort Worth, Texas — Mary's Creek Water Reclamation Facility Project —
WIFIA Term Sheet]
ACKNOWLEDGED AND AGREED:
CITY OF FORT WORTH, TEXAS,
by its authorized representative
By:
Name:
Title:
[Signature page to City of Fort Worth, Texas — Mary's Creek Water Reclamation Facility Project —
WIFIA Term Sheet]
THE STATE OF TEXAS
COUNTIES OF TARRANT, DENTON, WISE, PARKER AND JOHNSON
CITY OF FORT WORTH
I, Jannette S. Goodall, City Secretary of the City of Fort Worth, in the State of Texas, do
hereby certify that I have compared the attached and foregoing excerpt from the minutes of the
regular, open, public meeting of the City Council of the City of Fort Worth, Texas held on
January 13, 2026, and of the ordinance authorizing the issuance of Water and Sewer System
Revenue Bond, Series 2026 (Mary's Creek Water Reclamation Facility Project) (WIFIA ID —
N23107TX), which was duly passed at said meeting, and that said copy is a true and correct copy
of said excerpt and the whole of said ordinance. Said meeting was open to the public, and public
notice of the time, place, and purpose of said meeting was given, all as required by Chapter 551,
Texas Government Code, as amended.
In testimony whereof, I have set my hand and have hereunto affixed the seal of said City
of Fort Worth, this Zp day of January, 2026.
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4003050.2 048026 ORFT