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HomeMy WebLinkAbout82-173CiTY OF SANTA ANA RESOLUTION NO, 82-173 A RESOLUTION OF THE CITY COUNCIL Of THE CITY OF SANTA ANA AU-FHORIZING THE ISSUANCE OF $451,000 PRINCIPAL AMOUNT OF CITY OF SAN'FA ANA 1982 INDUSTRIAL REVENUE NOTE ($PS Technologies, Inc.) Adopted Oec~ber ?0, 1982 TABLE OF O)NTE~FFS ARTICLE I Section 1.01 Section 1.02 Section 1.03 Section 1.04 ARTICLE II Section 2.01 Section 2.02 Section 2.03 Section 2.04 Section 2.05 Section 2.06 ARTICLE III Section 3.01 Section 3.02 ARTICLE IV Section 4.01 Section 4.02 ARTICLE V Section 5.01 Section 5.02 Section 5.03 Section 5.04 Section 5.05 Section 5.06 Authorization of Note; Definitions ....... Authorization ................. Definitions .................. (a) Agreement ................ (b) Bank ................... (c) Centificate of the City, Written Request of the City ....... (d) City ................... (e) City Council ............... (f) Costs of the Project ........... (g) Facility ................ (h) Federal Securities ........... (i) Financial Newspaper .......... (j) Financing ............... (k) Fiscal Year . . .. .......... (1) Loan ................. (m) Loan Payments ........... (n) Note ................. (o) Ordinance ...... (p) Outstanding . . . (q) Participating Party {r) Payment Date .... (s) Prime Rate ..... (t) Project ...... (u} Promissory Note . . (v) Revenues ...... {w) Supplemental Resolution Content of Certificates and Opinions. Equal Security ............ The Note ............ · ........ Authorization ................. Terms of Note ...... ........... Redemption or Prepayment of Note ........ Execution of Note ............... Note Mutilated, Lost, Destroyed or Stolen . , . Certificates of Participation ......... Issue of Note ............... Sale and Delivery of Note ........... Application of Proceeds of Sale of Note Pledge of Revenues; Assignment ......... Pledge of Revenues ............... Assignment to Bank ............... Covehants of the City ............. Punctual Payment ................ Against Encumbrances .............. Preservation of Revenues; Amendment of Agreement, Promissory Note .... Accounting RecorOs and Reports ......... Compliance with Resolution ........... Further Assurances ............... (i) 2 2 10 10 10 11 11 11 11 11 11 11 ART I CLE Secti on Secti on Secti on Section Section ARTICLE Section Section Section Section Section Section Section Section Amendment of Resolution ............ VI 6.01 Amendments Permitted .............. 6.02 Procedure for Amendment with Written Consent of Bank and Participating Party .... 6.03 Effect of Supplemental Resolution ....... 6.04 Endorsement or Replacement of Note Issued After Amendments ............ 6.05 Amendatory Endor~enent of Note ......... VII Events of Default and Remedies of Dank ..... 7.01 Events of Default and Acceleration of Maturities ................. 7.02 Application of Revenues Upon Acceleration . . 7.03 Institution of Legal Proceedings by Bank .................... 7.04 Effect of Delay or Omission to Pursue Remedy. 7.05 Remedies Cumulative .............. 7.D6 Control of Proceedings ............. 7.07 Limitation on Bank's Right to Sue ....... 7.08 Limitation of Liability to Revenues ...... ARTICLE VIII Section 8.01 Section 8.02 Section 8.03 Section 8.04 Section 8.05 Section B.06 Section 8.07 Section 8.08 Section 8.0g Miscellaneous ................. Benefits of Resolution Limited to Parties . . . Successor is Deemed Included in All References toPredecessor ........ Discharge of ~esolution ............ Execution of Documents and Pro~ of Dwnership by Bank ....... Waiver of Personal Liability ...... Destruction of Cancelled Note ..... Notice and Demands on City ....... Partial Invalidity ........... Effective Date of Resolution ...... 12 12 12 13 14 14 14 15 15 15 16 16 17 17 17 17 17 17 18 18 18 19 Exhibit A Form of Note (ii) RESOLUTION NO. -,, A RESOLUTION OF THE CTTY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE ISSUANCE OF PRINCIPAL AMOUNT OF C~'Y OF SANTA ANA lg82 INDUSTRIAL REV£NIE NOTE (SPS Technologies, Inc.) WHEREAS, the City of Santa Ane is a chartered city of the State of California duly organized and existing under and by virtue of the constitution of said state, and is duly authorized by its City Charter to issue its revenue bonds, notes or other evidences of indebtedness for the purpose of financinm construction and acquisition of industrial facilities and related oroperties within the City pursuant to Ordinance NO. NS160g, adopted by the City Council of the City on November 16, 1981; WHEREAS. pursuant to the Ordinance, S~S Technologies, Inc. has ap~lied to the City for financing in connection with the acquisition of certain wastewater treatment machinery and equipment for use in the industrial facilities of said applicant located within the City; and WHEREAS, the City Council of the City of Santa Aha has determined to issue its industrial revenue note to aid in the financing of such construction as in this Resolution provided; BE IT RESOLVED BY THE CITY COUNCIL OF THE CI'FY OF SANI'A ANA AS FOLLOWS: ARTICLE I AUTHORIZATION OF NO~E; DEF)NIT)ONS Section 1.O1. Authorization. The City Council has reviewed all procee~lngs heretofore taken and has found, as a result of such review, and hereby finds and determines, that all things, conditions and acts required by law to exist, happen or be performed precedent to and in connection with the issuance of the Note do exist, have happened and have been performed in due time, for~ and manner as required by law, and the City is now duly empowered, pursuant to each and every requirement of lew, to issue the Note in the manner and form provided in this Resolution. Section 1.O2 . Definitions . Unless the context otherwise rec~ires, the terms defined in subsections (a} throuqh (y), inclusive, of this Section 1.02 shall, for all purposes of this Resolution, of any resolution supplemental hereto, and of any certificate, opinion or other doc~nent herein mentioned, have the meanings herein specified. (a) Agreement . "Agreement" means that certain agreement, entitled "Loan and Security Agreement", dated as of December 1, 1982, by and mmong the City, the Bank and the Participating Party. (b) Bank . "Bank" means Provident National Bank, the purchaser of the Note. (c) Certificate of the City , Written Request of the City . "Certificate of the C'~y" and "Written )~equest of the City" mean, respectively, a written certificate or request signed in the name of the City by the City Manager or the City Clerk or such other person as may be designated and authorized to sign for the City, with the seal of the City affixed. Any such instrument and supporting opinions or representations, if any, may, but need not, be combined in a single instrument with any other instrument, opinion or representation, and the two or more combined shall be read and construed as a single instrument. {d) City . 'City" means.the City of Santa Aha, a chartered city of the State of California duly organized and existing under and bv virtue of the constitution of said state. {e) ~ity Council . "City Council" means the City Council of the City. (f) Costs of the Project . 'Costs of the Project" has the meaning given such term in Section 5.02 of the Agreement. (g) ~. "Facility" means the industrial facilities owned by the Participating Party located at 2701 South H~bor Boulevard in the City. (h) Federal Securities . "Federal Securities" means United States Treasury notes, bonds, bills or certificates of indebtedness or those for which the faith and credit of the United States are pledged for the payment of principal and interest; obligations issued by banks for cooperatives, federal land banks, federal intermediate credit banks, federal home loan banks, the Federal Home Loan Bank Board, the Tennessee Valley Authority, or obliQations, participations, or other instruments of or issued by, or. fully guaranteed as to principal and interest by, the Federal National Mortgaoe Association; or participation certificates evidencing beneficial interests in obligations, o~ in the right to receive interest and principal collections therefrom, which obligations have been subjected by one or more government aoencies to a trust or trusts for which any executive deparb~ent, agency or instromentalitv of the United States (or the head thereof) has been named to act as trustee, all as to and the extent that such securities are eligible for the leoat investment of City funds. (i) Financial Newspaper . "Financial newspaper" means The Wall Street Journal Or The D~ily Bond Bu),er or any other newspaper printed in the English language, customarily published on each business day, publishino financial news, circulated in New York, New York, and the same or simila~ newspaper or journal circulated in Los Angeles, California, and selected by the Bank, whose decision shall be final and conclusive. (j) Fina. ncing. 'Financing" and its variants mean the lendin~ of moneys or any other thing of value for the purpose of facilitatinq the acquisition of the Project {or the reimbursement to the Participating Party for any portion of the Project already acquired), pursuant to the Ordinance. (k) Fiscal Year. 'Fiscal Year' 'means any twelve-month period extending from ~one calendar year to June 30 of the succeedinq calendar year, both inclusive, or any other twelve-month period hereafter selected and designated by the City as its official fiscal ye~ period. (1) Loan . 'Loan" means the loan made by the City to the Participating ParT, or the Financing of the Project pursuant to the Aqreement and evidenced by the Promissory Note. (m) Loan Payments . to be made by the Participating Agreement. "Loan Payments" means the payments required Party pursuant to Section 1.03{a) of the (n) Note . "Note" means the City of Santa An, lgB? Industrial Revenue Note (SPS Technologies, Inc.) authorized to be issued by Section 2.01 hereof. (o) Ordinance . "Ordinance" .means Ordinance No. NS1609 adooted bv the City Council on November 16, I981, under the Charter, as the same may be amended from time to time. (p) Outstandin9 . 'Outstanding", when used as of any oarticular time with reference to the Note, means (subject to the provisions of Section 7.04) the principal emount outstanding and unpaid on the Note. {q) ~articipatin9 Party . 'Participating Party' means SOS Technologies, Inc., a corporation organized and existing' under the laws of the Commonwealth of Pennsylvania and in good standing under the laws of the State of California. (r) Payment Date . 'Payment Date", with respect to any day on which a payment is due hereunder, means the sane day of the month as that on which the Note is delivered or in the event that such day is not a business day, the next Preceding day which is a business day. (s} Prime Rate . 'Prime Rate" means the floating commercial loan rate of interest of the Bank announced from time to time as its prime rate, as adjusted on the day on which any change in said prime rate shall become effective. (t) Project . 'Project' means the wastewater treatment machinery and equipment consisting of an Atlantes Chemical System with a capacity of 1RO gallons per minute and an ability to destroy cyanide, adjust oH and remove heavy metals and related and auxiliary facilities and property, to be located in the Facility pursuant to the Agreement and the Ordinance. (u) Promissory Note . "Promissory Note'. means the note executed by the Participating Party evidencing and securing the repayment of the Loan pursuant to the Agreement. (v) Revenues . 'Revenues" means all rents, receipts, payments and other income anc~ revenue received by the City or the Bank with respect to, or otherwise derived from, the Financing of the Project, tncludinq without limitation all base loan payments and prepayments thereof received from the Participating Party pursuant to the Agreement and the Promissory Note, all additional payments required to be paid pursuant to Section 1.03{b) of the Agreement, all ~ounts derived by the City or the Bank from the enforcement of the City's or the Bank's rights and privileges under the Aqreement, all proceeds derived by the City or the Bank from the insurance policies maintained pursuant to the Agreanent. (w) Supplemental Resolution . 'Supplemental Resolution" or 'supplemental resolution" means any resolution then in full force and effect which has been duly adopted by the City Council of the City under the Ordinance, at a meeting of the City Council duly convened and held, at which a quoru~n was present and acted thereon, amend,tory of or su~olemental to this Resolution; but only if and to the extent that such Supplemental Resolution is specifically authorized hereunder. Section 1.03 . Content of Certificates and Opinions . Every certificate or opinion wi~h respect to compliance with a condition or covenant provided for in this Resolution shall include {al a statement that the person or persons making or giving such certificate or opinion have read such covenant or condition and the definitions herein relating thereto; {b) a brief statement as to the nature and scope of the examination or tnvesttoation upon which the statements or opinions contained in such certificate or opinion are based; {c) a statement that, in the opinion of the slqners, they have made or caused to be made such examination or investigation as is necessary to enable them to express an informed opinion as to whether or not such covenant or condition has been complied with; and {d) a statement as to whether, in the opinion of the signers, such condition or covenant has been complied with. Any such certificate or opinion made or given by a member or officer of the City may be based, insofar as it relates to legal matters, uoon a certificate or opinion of or representations by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should have known that the same were erroneous. Any such certificate or opinion made or given by counsel may be based, insofar as it relates to factual matters (with resbect to which information is in the possession of the City), upon the certificate or opinion of or representations by a member or officer of the City, unless such counsel knows that the certificate or opinion or representations with respect to the matters upon which his opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should have known that the same were erroneous. Section 1.O4 . Equal Security . In consideration of the acceptance of the Note-~ Bank, this Resolution shall be deemed to be and shall constitute a contract between the City and the Bank and the covenants and agreements herein set forth to be performed on behalf of the City shall he for the benefit, security and protection of the Bank. ARTICLE II THE NOTE Section 2.01 . Authorization . A Note in the agqregate princio~l amount of Four Hundred Fif~y-D'ne Thousand Dollars ($451,00D) is hereby authorized to be issued by the City under and subject to the terms of this Resolution, the Ordinance, the Charter o~ the City and the Constitution of the State of California. This Resolution constitutes a continuing agreement with the Bank to secure the full and final payment of principal of and the interest on the Note, subject to the covenants, agreements, provisions and conditions herein contained. The purpose for which the Note shall be issued is to provide funds to make the Loan to the Participating Party for the purpose of Financing the Pro~ect pursuant to the Agreement. The Note shall be demiqneted the "City of Santa Rna lg82 Industrial Revenue Note (SPS Technoloqies, Inc.)." Section 2.02 . Terms of Note . The Note shall be dated as of the date of de--of and payment therefor, end shall be initially issued as a single fully registered Note (without coupons) substantially in the form set forth on Exhibit A attached hereto and by this reference incorporated herein. The Note shall be delivered to the Bank in accordance with Section 3.01. The Note shall mature and become !oayable on the Payment Date in December, 1990, and shall bear interest, on the unpaid principal balance thereof, at a floating rate equal to the l)roduot of (i} Bank's Prime Rate multiplied by (ii) seventy percent (7C~). Principal on the Note shall he payable in thirty-two (32) consecutive quarterly installments on the Payment Date in the months of March, June, September and F)ecemher of each veer, commencing with the Payment Date in March 1983, each payment of princioal to be in the amount of Fourteen Thousand Ninety Three Dollars and seventy-five cents ($1a,093.75), all subject to Section 2.03 hereof. Interest shall b~ paid on the Payment Date in the months of March, June, September and Oecenber of each )ear, commencing with the Payment Date in March 1983. Both the principal of and interest on the Note shall be payable in lawful money of the United States of America in lranediately available funds at the office of the Bank located at Broad and Chestnut Streets, Philadelphia, Pennsylvania 191Al, unless an alternative address is provided pursuant to Section 7.0! of the Agreement. Notwithstanding anything to the contrary herein contained and so long as interest on the Note has not been determined to be taxable (as such nhrase is hereinafter defined), the Bank may, bv written notice to the City and the Participating Party at any time during the 30 day period followinq the third anniversary of the date of the Note adjust the interest rate on the Note to such rate (the 'Adjusted Rate") as the Bank may, in its sole discretion, determine effective on such anniversary date, provided that the Adjusted Rate shall at no time exceed the Prime Rate. In addition to the foregoing rate adjustment, if the interest payable under the temms of the Note is determined to be taxable to the Bank under the Internal Revenue Code of 1954, as amended and supplemented, and regulations of the Treasury Deparb~ent issued thereunder, then the rate of interest on the principal of the Note shall he adjusted to a rate that is at all times equal to the Prime Rate retroactive to the date as of which the interest became taxable to the Bank and the retroactive interest shall become due and payable on the Payment Date of the quarterly installment of principal of and interest on the Note that is due in~ediately after the interest Payable under the terms of the Note is determined to be taxable to the Bank, and the ouartertv installments thereafter becoming due shall be adjusted accordingly and all other terms of the Note shall remain in full force and effect. Notwithstanding the foregoing, if the Bank is required by the City or by any provision of the then applicable law to accelerate the maturity of the Note in the event the interest payable under the terms of the Note is determined to be taxable to the Bank, then the entire unpaid balance of principal toqather with accrued interest at the adjusted rate shall become in~ediately due and oayable without presenbnent, demand or protest or notice of protest of any kind. In either event, the Participating Party shall pay to the Bank, promptly upon written demand therefor, all penalties and interest paid by the Bank to the Internal Revenue Service because of non-payment of income tax uoon the interest received by the Bank pursuant to the Note. The words "determined to be taxable" shall refer to and include the passage OF e statute or the adoption OF a regulation eliminattnq the exomotion f~om taxation, or a decision, ruling or determination by a judicial or administrative authority to the effect that such exemption is no lonoer available or is contrary to law. The provisions of this Resolution with respect to the payment of retroactive interest and other amounts payable to the Bank in the event the interest payable under the terms of the Note is determined to be taxable to the Bank shall survive the gayment, cancellation, satisfaction or surrender of the Note. Section 2.03 , Redemption or Prepayment of Note . The Note shall be subject to redemption or prepayment before its stated maturity date, as a whole, or in part from prepayment of the Loan made by the Participating Party or from any source of available funds, on any Payment Date at an amount eoual to the principal amount to be redeemed or prepaid, together with accrued interest thereon to the date of redemption or prepayment, without preba~ent prem t urn. After the date fixed for redemption, if funds available for the payment in full of the principal of and interest on the Note have been duly orovided, the Note shall cease to he entitled to any benefit under this Resolution other than the right to receive payment of the redemption price, and no interest shell accrue thereon on or after the redemption date. If the Note is redeemed in whole pursuant to this Section, the Note shall be cancelled and shall be surrendered to the City. If the Note is redeemed in part pursuant to this Section, the redemption amount shall be applied against principal due on the Note in inverse order of Payment Date. Section 2.04. Execution of Note. The Note shall be executed on behalf of the City by the signature of the Mayor and attested on behalf of the City by the signature of the City Clerk who is in office on the date of the adoption of this Resolution or at any time thereafter, and the seal of the City shall be impressed, imprinted or reproduced by facsimile thereon. If any officer whose signature appears on the Note ceases to be such officer before the delivery of the Note to the Bank, such siqnature on the Note shall nevertheless be as effective as if the officer had remained in office until the delivery of the Note to the Bank. The Note may be sioned and attested on behalf of the City by such persons as at the actual date of the execution of the Note shall be the proper officers of the City althouqh at the nominal date of the Note any such person shall not have been such officer of the City. Section 2.05 . Note Mutilated~ Lost~ Destro),ed or Stolen . If the Note shall become mut'~'lated, the City, at the e~pense of the Bank, shall execute and deliver, a new Note of like tenor in exchange and substitution for the Note so mutilated, but only upon stmrender to the Bank of the Note so mutilated. Every mutilated Note se surrendered to the Bank shall be cancelled by the Bank and delivered to, or upon the order of, the City. If the Note shall be test, destroyed or stolen, evidence of such loss, destruction or theft may be submitted to the City, and if such evidence is satisfactory to the City and indemnity satisfactory to it shall have been given, the City, at the expense of the Bank, shall execute and deliver, a new Note of like tenor in lieu of and in substitution for the Note so lost, destroyed or stolen. The City may require payment of a sea not exceeding the actual cost of oreparino each new Note issued under this Section and of the expenses which may be incurred by the City in the premises. Any Note issued under the provisions of this Section in lieu of any Note alleged to be lost, destroyed or stolen shall be at any time enforceable by anyone, and shall be equally and proportionately entitled to the benefits of this Resolution with the Note originslly issued pursuant to this Resolution. Section 2.06 . Certificates of Participation . Nothing herein shall prevent the Bank fr~n executing and delivering certificates of oarticioation in payments to be made by the City on the Note, provided, however, that such certificates of particioation shall not be deemed to be separate oblioations of the City and that, notwithstanding such delivery, the Bank shall be considered the holder and owner of the Note for all purposes hereunder and under the Agreement. ARTICLE III ISS~ OF NOTE Section 3.01 . Sale and Delivery of Note. At any time after the adoptiSn of ~his ResolutiOn the City may Jell and deliver a Note to the Bank in accordance with the terms of a purchase agreement presented by the Bank. Section 3.02 . Application of Proceeds of Sale of Note . The proceeds receive~City' from the sale of the Note shall be loaned to the Participating Party for the purpose of Financing the Project. ARTICLE IV PLEDGE OF REVENUES; ASSI(~NMENT Section 4.01 . Pled.ne of Revenues . The Note shall be secured bv~ first p--~h pledg'e'shall be effected in the manner and to the extent hereinafter provided) of all of the Revenues. The Revenues are hereby allocated in their entirety to the payment of the principal of and interest on the Note and, until the payment in full thereof, the Revenues shall be aopli~ solely to the payment of such principal and interest, l'he pledoe and allocation of Revenues is for the exclusive benefit of the Bank and shall be irrevocable until the Note has been paid and retired or provision made therefor. The City will not issue any obligation or security superior to or on a parity with the Note, howsoever denominated, payable in whole or in part from the Revenues which are hereby pledged to the oayment of the orinciosl of and interest on the Note, until the Note has been paid and retired or provision made therefor. The Note shall be a special obligation of the City and shall he payable solely from the funds herein provided therefor. The Note shall not constitute an indebtedness of the City, the State of California er any of its subdivisions, and neither said State nor any of its political subdivisions shall be liable thereon, nor in any event shall the Note be payable out of any funds or properties of the City other than the Revenues as provided herein. Neither the faith and credit nor the taxino p~eerNo~fe the City is pledoed to the payment of the principal of or interest On . ~ Se..._~ction 4;0_~ . Assi.onment to Bank . The City hereby transfers, assigrs and sets over to the Bank, as holder of the Note, all of the Revenues and amy and all rights, privileges and obligations it has under the Agreement and the Promissory Note including, without limitation, the right to collect and receive directly all of the Revenues, and any Revenues collected or received by the City shall be deemed to be held, and to have been collected or received, by the City as the agent of the Bank, and shall forthwith be paid bv the City to the Bank. ARTICLE V COVENANTS OF THE CITY Section 5.01 . Punctual Payment . The City will punctuellv pay or cause ~'~-~'~--~T~-~but only out of Revenues as herein provided) the Drinci9al of and interest to become due on the Note, in strict conformity with the terms of the Note and of this Resolution, and it will faithfully observe and Der~orra all of the conditions, covenants and requirements of this Resolution and all Suppl~ental Resolutions and of the Note. Nothino herein contained shall prevent the City from making advances of its own moneys howsoever derived to any of the uses or purposes referred to herein. Section 5,0~ . Against En~mbrances . The City will not encumber, pledge~ any charge or lien upon any of the Revenues superior to or on a parity with the pledge and lien herein created for the benefit of the Note, except as permitted by this Resolution. Section 5.03 . Preservation of Revenues : Amendment of Acrreement , Promissory Note . Th~ c'~'~se to be coll~ompt-Ty all ~nounts due 'from the~rticipating Party under the Agreelneut and the Promissory Note as the s~e become due, and shall promptly and vigorously enforce all of its rights under the Agreement and the Promissory Note. Without the written consent of the Bank the City shall not amend, modify or terminate, or aoree or consent to ~mend, modify or terminate, the A~reement or the Promissory Note; but, with the written consent of the Bank, the City may consent to amendments or modifications thereof. The Bank may give such written consent, and may itself take any such action or consent to an amendment or modification, onlv (i) if, in the opinion of the Bank such action or such amendments or modifications will not adversely affect the interests of the Bank or result in any impairment of the security hereby given for the payment of the Note, and (ii) such amendments or modifications will not have the effect of extendino the time for payment or reducing the amount due and payable by the Participating Party pursuant to the Aqre~ent and the Promissory Note. Section 5.04. Accountina Records and Reports. The Bank shall keep proper books of record~nd ~ccou'~t in which complete and correct entries shall be made of all transactions relating to the receipt and aonlication of the Revenues. The Bank, on or before July 1 of each year, beqinnino July 1, lm83, shall furnish to the City a complete financial statement covering receipts and application of Revenues for the twelve months ending on the Precedino Jun: 1. Section 5.05 . Compliance with Resolution . The City shall not suffer or pefmit any default to 66cUr under this Resolution, but shall faithfullv observe and perform all the covenants, conditions and recpirements hereof. Section 5.06 . Further Assurances . The City will adopt, make, execute and deliver any and all such further resolutions, instruments and assurances as may be reasonably necessary or proper to carry out the intention nr to facilitate the performance of this Resolution, and for the better assuring and confirming unto the Bank of the rights and benefits provided in this Resolution. A~T I CLE VI AMENDMENT OF RESOLLFFION Section 6.01 . Amendments Permitted . This Resolution and the riqhts and obligations of the City and of the Bank may be modified or amended at any time by a Supplemental Resolution, but only with the prior written consent of the Bank and the Participating Party. No such modification or amendment shall (i) extend the maturity of any Note or reduce the interest rate thereon, or otherwise alter or impair the obligation of the City to pay the principal thereof, of interest thereon, or any premium payable on the redemption thereof, at the time and place and at the rate and in the currency provided therein, without the express consent of the Bank and the Participating Party, or (2) permit the creation by the City of any mortgage, pledge or lien upon the Revenues superior to or on a parity with the oledge and lien created for the benefit of the Note. Section 6.02 . Procedure for Amendment with Written Consent of Bank and the Participating ~arty . The City may at any time adopt a Supplemental Resolution amending the provisions of the Note or of this Resolution or any Supplemental Resolution, to the extent that such amen~ent is permitted by Section 6.01, to take effect when and as provided in this Section. A COpy of such Supplemental Resolution, together with a request to the Bank and the Participating Party for its consent thereto, shall be mailed by the City to the Bank and the Participating Party. Such Suppl~nental Resolution shall not become effective unless there shall be obtained the written consent of the Bank and the Participating Party and any such consent shall be binding upon the Bank and the Particioatinq Party. The Supplemental Resolution shall becone effective upon the adoption of the Supplemental Resolution or filing of the consent by the Bank and the Participating Party with the City, whichever is later. Section 6.03 . Effect of Supplemental Resolution . From and after the time any Supplemental Resolution becomes effective pursuant to this Article VI, this Resolution shall be deemed to be modified and amended in accordance therewith, the respective rights, duties and obligations under this Resolution of the City and the Bank shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such Suoolemental Resolution shall be deemed to be part of the terms and conditions of this Resolution for any and all purposes. Section 6.04 . Endorsement or Replacement of Note Issued After Amen~ents . The City, upon demand of the Bank, may determine that any Note issued and delivered after the effective date of any action taken as provided in this Article VI shall bear a notation, by endors~nent or otherwise, in form approved by the City, as to such action. In that case, upon de~and of the Bank and presentation of its Note for that p~rpose at such office as the City may select and designate for that purpose, a suitable notation shall be made on such Note. The City may determine that a new Note, so modi¢ied as in the opinion of the City is necessary to conform to such action, shall be nrepared, executed and delivered. In that case, upon demand of the Bank, such new Note shall be exchanged at the office of the Bank, in Philadelphia, Pennsylvania, without cost to the Bank, for the Note then Outstanding, upon surrender OF such Note. Section 6.05 . Amendator¥ Endorsement of Note . The provisions of this Article VI shall not prevent the Bank from acceptinm any amendment as to the Note held by it, provided that due notation thereof is made on such Note. ARTICLE VII EVENTS OF DEFAULT AND REMEDIES OF RANK Section 7.01 . Events of Default and Acceleration of Maturities . IF one or more of the following events ("events of default") shall happen, that is to say 8 (al if default shall be made in the due and punctual oay~ent of the principal or any installment of interest on the Note when and as the s~ne shall become due and payable, whether at maturity as therein expressed, by declaration or otherwise; (b) if default shall be made by the City in the observance of an~ of the covenants, agreements or conditions on its part in this Resolution or in the Note contained, and such default shall have continued for a period of sixty {60) days after written notice thereof, specifying such default and requiring the sene to be remedied, shall have been given to the City by the Bank; or (c) if an event of default (as defined in Section 6.01 of the Agreement) has occurred under the Agreement and is continuinq; then, and in each and every such case during the continuance of such event os default, the Bank may, by notice in writinq to the City declare the princioal of the Note then Outstanding, and the interest accrued thereon, to be_ due and payable immediately, and upon any such declaration the same shall bec~ne and shall be immediately due and payable, anything in this Resolution or in the Note contained to the contrary notwithstanding. This provision, however, is subject to the condition that if, at any time after the principal of the Note shall have been so declared due and payable, and before any judgment or decree for the oayment of the monies due and payable shall have been obtained or entered, there shall have been deposited with the Bank a sum sufficient to pay all principal on the Note matured prior to such declaration and all matured installments of interest {if any) upon the Note, with interest on such overdue installments of Principal at the rates borne by the Note, and the reasonable expenses of the Bank, and any and all other defaults known to the Bank (other than in the poyment of principal of and interest on the Note due and payable solely by reason of such declaration) shall have been made good or cured to the satisfaction of the Bank or provision cleaned by the Bank to be adequate shall have been made therefor, then, and in every such case, the Bank may rescind and annul such declaration and its consequences. However, no such rescission and annulment shall extend to or shall effect any subsequent default, or shall impair or exhaust any right or power consequent thereon. Section 7.02 . A~plication of Revenues Upon Acceleration. Upon the date of the'declaration of acceleration by the Bank as orovided in Section 8.01, all Revenues shall be apolied by the Bank in the following order: First , to the payment of the costs and exoenses of the Bank in declaring such event of default, including reasonable compensation to its agents, attorneys and counsel; Second , in case the principal of the Note shall not have become due and pa~---G~F~, to the payment of the interest in default in order of the maturity of the installments of such interest, with intePest on the overdue installments at the rate equal to two percent (2~) above the rate in effect on the Note from time to time from the date of default {to the extent that such interest on overdue installments shall have been collected); Third , in case the principal of the Note shall have become and shall be then due and payable, to the payment of the whole amount then owino and unpaid upon the Note for principal and interest, with interest on the overdue principal and installments of interest at a rate eaual to two oercent {2%) above the rate in effect on the Note from time to time from the date of default, and 'in case such monies shall be insufficient to Day in full the whole amount so owing and unpaid upon the Note, then to the oayment first of accrued interest. Section 7.03 Institution of Legal ProceedinQs b~ Bank. If one or more o~F-the events ~f default shall happen and bo continuinq, the Bank in its dis~'etion may, and upon being indemnified to its satisfaction therefor, shall, proceed to protect or enforce its riQhts under the Ordinance or under this Resolution by a suit in equity or action at l~, either for the suecific performance of any covenant or apreement contained herein, or in aid of the execution of any power herein granted, or by mandamus or other aporopriate proceeding for the enforc~ent of any other legal or equitable remedy as the Bank shall deem most effectual in support of any of its rights or duties hereunder. Section 7.04 . Effect of Delay or Omission to Pursu~ Remed~ . No delay or omission of the ~Fank to exerci'se any right or Dower arising ~rem any default shall impair any such right or power or shall be construed tn be a waiver of any such default or acquiescence therein, and every Dower and remedy given by this Article VII to the Bank may be exercised from time to time, and as often as shall be deemed expedient. In case the Bank shall have proceeded to enforce any right under this Resolution, and such proceedinos shall have been discontinued or abandoned because of waiver or for any other reason, or shall have been determined adversely to the Bank, then and in every such case the City and the Bank, severally and respectively, shall be restored to their fomner positions and rights hereunder; and all remedies, rights and powers of the City and the Bank shall continue as thouQh no such proceedings had been taken. Section 7.05 . Remedies C~olative . No remedy herein conferred upon or reserved to the Banl< is intended to be exclusive of any other remedY, but each and every such remedy shall be cumulative end shall be in addition to every other remedy given hereunder or now or hereafter existinq at l~w or in equity. Section 7.06 Control of Proceedings . In the event that the Bank, upon the happening 'of in event of default, Shall have taken sene action, by judicial proceedings or otherwise; it shall have full Power with resnect to the continuance, discontinuance, withdrawals compromise, settlement or other disposal of such action. Section 7.07 . Limitation on Bank's Right. to Sue . The Bank shall not have £he right to institute any suit, action or proceeding at law or in equity, for any remedy under or upon this Resolution, unless the Bank shall have previously given to the City written notice of the occurrence of an event of default hereunder. Such notification is hereby declared, in every case, to be a condition precedent to the exercise by the Bank of any remedy hereunder; it beinq understood and intended that ~che Bank shall not have any right in any manner whatever by its action to enforce any right under this Resolution, except in the manner herein provided, and that all proceedings at law or in equity to enforce any provision of this Resolution shall be instituted, had and maintained in the manner herein provided. The right of the Bank to receive payment of the principal o~ and interest on the Note out of Revenues, as herein and therein provided, on and after the respective due dates expressed in such Note, or to institute suit for the enforcement of any such payment on or after such res~ctive date, shall not be impaired or affected without the consent of the Bank, notwithstandinq the foregoing provisions Of this Section or any other provision of this Resolution. Section 7.08 . Limitation of Liability to Revenues . Notwithstanding anything-g'~Resolution contained, the 'City shall not be required to advance any moneys derived from the proceeds of taxes collected by the City of Santa Ana or from any source of income of the City of Santa Ana other than the Revenues, for any of the purposes in this Resolution mentioned, whether for the payment of the principal of or interest on the Note or for any other purpose of this Resolution. The Note is payable from and secured by the Revenues and the Agreement, ARTICLE VIII MISCELLAhE OdS Section 8.01 . Benefits of Resolution Limited to Parties . NothinQ in this R'~olution, express~ or implied, is intended to oive any person oth~~ than the City and the Bank any right, remedy, or claim ~der or by reason o~ this Resolution. Any covenants, stipulations, promises or anreements in this Resolution contained by and on behalf of the City shall be for the sole an~ exclusive benefit of the Bank. 10 Section 8.02. S~ccessor is Deemed Included in All References to Predecessor . Wbe~er in th~'Resolution or any SuD-~em~al )~esolution -~'~ther the City or the Bank is named or referred to, such reference shall be deemed to include the s*uccessors or assigns thereof, and ell the covenants end agreements in this Resolution contained by or on behalf of the City or the Sank shall bind and inure to the benefit of the respective successors and assigns thereof whether so expressed or not. Section 8.03 . Discharge of Resolution . If the City shall pay and discha~'ge' the entire indebtedness On the Note Outstanding in any one or more of the following ways: (a) by well and truly paying or causing to be paid the principal or and interest on the Note Outstanding, as and when the s~me become due and payabl e; or (b) by depositing with the Sank, in trust, at or before maturity, money which is fully sufficient to pay the Note Outstandinq, includinq ell principal and interest; then, at the election of the City and notwithstandino that the Note shall not have been surrendered for payment, the pledge of the Revenues end other funds provided for in this Resolution and all other oblt(letions of the City and the Participating Party under this Resolution with respect to the Note Outstandino shall cease and terminate. Notice of such election shall be filed with the Bank. Section 8.04 . Execution of Documents end Proof of Ownership bv Sank . Any request, declaration or other instrument which this Resolution may require or permit to be executed by the Sank may be in one or more instruments of similar tenor, and shall be executed by an officer of the Sank or by its attorneys appointed in writing. Except as otherwise herein expressly provided the ownership of the Note and the ~ount, number and date of holding the s~ne shall be proved by the registry books. Section 8.05 . Waiver of Personal Liability'. No member, officer, agent or employee of the City shall be individually or personally liable for the payment of the principal of or interest on the Note; but nothing he,ein contained shall relieve any such m~nber, officer, apent or employee from the performance of any official duty provided by law. Section 8.06 . Destruction of Cancelled Note . Whenever in this Resolution provision ism~e for the surrender to the City of the Note which has been paid or cancelled pursuant to the provisions of this Resolution, a certificate of destruction duly executed by the Bank shall he deemed to he the equivalent of the surrender of such cancelled Note and the City shall be entitled to rely upon any statement of fact contained in any certificate with respect to the destruction of the Note therein referred to. Section 8.07 . Notice and Demands on City . Any notice or demand which by any provision of this Resolution is required or permitted to be qiven or served to or on the City may be qiven or served by beinq deposited Dostaoe prepaid in a post office letter box addressed (until another address is filed by the City with the Bank) as follows: City Nanaqer, City of Santa Aha, 70 Civic Center Plaza, Santa Ana, California 92701. Section 8.08 . Partial Invalidity . If any Section, oarauranh, sentence, clause or phrase of this Resolution shall for any reason bo held illegal or unenforceable, such holding shall not affect the validity o¢ the re~aining portions of this Resolution. The City hereby declares that it would have adopted this Resolution and each and every other Section, paraoraph, sentence, clause or phrase hereof and authorized the issue of the Note pursuant thereto irrespective of the fact that any one or more Sections, paragraphs, sentences, clauses or phrases of this Resolution may be held illegal, invalid or unenforceable. If, by reason of the judq, nent of any court, the Bank is rendered unable to perform its duties hereunder, all such duties and all of the rights and powers of the Bank hereunder shall be assumed by and vest in the Treasurer in trust for the benefit of the Bank. The City 11 covenants for the direct benefit of the Bank that its Treasurer in such ca~e shall be vested with all of the rights and powers of the Bank hereunder, and shall assume all of the responsibilities and perform all of the duties of th~ Bank hereunder, in trust for the benefit of the Bank. Section 8.09. Effective Date of Resolution . This Resolution shall take effect from and after the date of its I)assaqe and adoption. ADOPTED, this 20thday of December, 1982, by the following vote: AYES: Councilmembers: Acosta, Bricken, Griset, NOES: ABSENT: Luxembourger, McGuigan, Serrato Councilmenbers: Markel Councilm~bers: None ATTE ST: C]2y Altorn~,~ ~ UNITED STATES OF AMERICA STATE OF CALIFORNIA COUNTy OF ORANGE R-1 Sa51,0DO CFFY Or SANTA AltA 1982 INDUSTRIAL REVENUE NgTE (SPS TECHNOLOGIES, INC.) The CITY OF SANTA ANA, a chartered city of the State of California, duly organized and existing under the constitution and laws of the State of California (the "City"), for value received, hereby promises to pay to Provident National Bank (the "Bank") or reoistered assions, at the office o~ the Bank at Broad and Chestnut Street, P~niladelphia, Pennsylvania I91.01, the principal sum of Four Hundred Fifty-One Thousand Dollars ($451,000) in lawful money of the United States of America, in in~nediatelv available fonds, together with interest on the unpaid principal balance hereof from the date hereof ~qtil payment of such principal s~n in full, at a floating rate Der ann~n equal to the product of (i) Bank's Prime Rate multiplied bv {ii) seventy percent (70%). Thirty-two (32) consecutive quarterly principal installments due on the Pa~nent Date in the months of March, June, September and December of each year, con~nencing with the Payment Date in March, 19B3, are payable in installments of Fourteen Thousand Ninety Three Dollars and Seventy-Kive Cents ($14,093.75) each on this Note. Interest shall he I)aid on the Payment Date in the months of March, June, September and December of each year, co~i~encinm with the Payment Date in March, 1983. NotwithstandinB anything to the contrary herein contained and so lonq as interest on this Note has not been determined to be taxable (as such phrase is hereinafter defined), the Bank may, by written notice to the City and SDS Technologies, Inc. at any time during the 30 day period followinq the third anniversary of the date of this Note, adjust the interest rate on this Note to such rate (the "Adjusted Rate") as the Bank may, in its sole discretion, determine effective on such anniversary date, provided that the Adiusted Rate shall at no time exceed the Prime Rate. In addition to the foregoing rate adjustment, if the interest payable under the terms of this Note is determined to be taxable to the Bank under the Internal Revenue Code of 1954, as amended and supplemented, and requlations of the Treasury Deparl~nent issued thereunder, then the rate of interest on the principal of this Note shall be adjusted to a rate that is at all times equal to the Prime Rate from time to time, retroactive to the date as of which the interest became taxable to the Bank and the retroactive interest shall become due and payable on the Payment Date of the quarterly installment of orincioal of and interest on the Note that is due in~ediately after the interest oayable under the terms of the Note is determined to be taxable to the Bank, anH the quarterly installments thereafter becominq due shall be ad,iusted accordinolv and all other terms of this Note shall remain in full force end effect. Notwithstanding the foregoing, if the Bank is required bv the City or bv any provision of the then applicable law to accelerate the maturity of this Note in the event the interest payable under the terms of this Note is determined to be taxable to the Bank, then the entire onPaid balance of orincieal together with accrued interest at the adjusted rate shall become irrrnediatelv due and payable without presenb~ent, demand or protest or notice of orotest oe any kind. In either event, the City shall pay to the Bank, oromotly uoon written demand therefor, all penalties and interest paid by the Bank to the Internal Revenue Service because of non-peyment of income tax uoon the interest received by the Bank pursuant to this Note. EXHIB ~T A 1 The words "determined to be taxable" shall refer to and include the passage of a statute or the adoption cn~ a reoulation eli~natinQ the exemption from taxation, or a decision, ruling or determination by a .iudicial or administrative authority to the effect that such exemption is no loneer available or is contrary to law. If any installment due hereunder is not paid when due, the Citv promises tO pay interest on said unpaid installment at the rate of two percent {2~} above the rate in effect on this Note from time to time from the date when the same is due hereunder until the same shall be paid. This Note is a duly authorized issue of City of Santa Ana 1987 Industrial Revenue Note (SPS Technologies, Inc.) in the aoareqate principal amount of Four Hundred Fifty One Thousand Dollars ($451,000), issued pursuant to provisions of Ordinance No. NS1609, entitled "Ordinance of the City ef Santa Ana Adding Chapter 28 to the Santa Aha Municipal Code, Authorizinq the Issuance of the City of Santa Ana Industrial Development Bonds for the Purp~ of Financing Industrial and Ccr~mercial Development within said City in the Interests of the Public Health, Safety and Welfare," adopted by the City Council of the City of Santa Ana on November 16, 1981, and pursuant to Resolution No. (the "Resolution") adopted by the City on Decamber 1982, for the purpose of providing funds for the making of a loan to SPS Technologies, Inc. to finance wastewater treab~ent machinery and equipment installed at the Participating Party's facilities in Santa Ana, California (the "Project") as that term is further defined in the Resolution). This Note is secured in accordance with the terms and conditions of the Resolution, to which reference is hereby made for a specific description of the security therein provided, and of the nature, extent and manner of enforcement of such security, and a statenent of the rights of the registered owner of this Not~, to all of the provisions of which the registered owner of this Note, by acceptance thereof, consents and agrees. This Note, and the interest hereon (to the extent set forth in the Resolution), is payable from, and is secured by a charge and lien on, the Revenues derived by the City f~om the Promissory Note, the Loan and the Agreement {as those terms are defined in the Resolution). This Note is a special obligation of the City and is.not a lien or charqe aqainst the property or funds of the City, except to the extent of the pledqe of Revenues, as provided in the Resolution. This Note is not a debt of the City, the State of California, or any of its political subdivisions and neither said City, said State, nor any of its political subdivisions is liable hereon nor in any event shall this Note be payable out of any funds or properties other than the Revenues hereinbefore referred to. Neither the faith end credit nor the taxing power of the City is pledged to the payment of the orincinal o~ o~ interest on this Note. This Note does not constitute an indebtedness within the meaning of any constitutional or statutory debt limitation or restriction. This Note is subject to redemption or prepayment as a whole or in Dart, from any source of available funds~ on any Payment Date, at the principal amount thereof, together with accrued interest thereon to such date. addition, this Note is subject to redemption or prepayment as a whole or in part, on any Payment Date without pre~niam, from prepayments ~ursuamt to the Agreement, or from the proceeds of insurance or condemnation. If an event of default (as defined in the Resolution) shall occur, all or a portion of the principal amount of this Note may be declared due and payable upon the conditions, in the manner and with the effect orovided in the Resolution but such declaration and its consequences may be rescinded and annulled as further provided in the Resolution. EXHIBIT A ~t is hereby certified that all of the things, conditions and acts required to exist, to have happened and to have been perfo~ed mrecedent to and in the issuance of this Note do exist, have happened and have been performed in due time, form and manner as required by law, and that the amount of this Note, together with all other indebtedness of the City, does not exceed any limit prescribed by any laws of the State of California, and is not in emcess of the amount of this Note permitted to be issued under the Resolution. IN WITNESS WHEREOF, the CITY OF SANTA ANA has caused this Note to be executed in its name and on its behalf by its Mayor and its City Clerk, and its seal to be reproduced hereon, and this Note to be dated December 29, 1982. CITY OF SANTA ANA (SEAL) Attest: By Ma wr City Clerk EXHIBIT A 3 (FORM OF REGISTRATION CERTIFICATE) REGISTRATI GN CERTIFICATE Date of Name of Re,Qistr ati on R~gistered Owner Signature of Officer of P~ovident Bank (FORM OF ASSIGNMENT) For value received the undersigned do(es) hereby sell, assion and transfer unto _ the within-mentioned ~eQistered Note and hereby irrevocably constitutes (s) and appoints(s) attorney, to transfer the same on the books of Provident Bank with full ~Ower of substitution in the oremises. Oared: Note: The signature(s) to this Assignment must correspond with the name(s) as written on the face of the within Reoistered Note in every particular, without alteration or enlarqement or any change whatsoever. EXHIBIT B