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HomeMy WebLinkAbout2013-262 Agrmt AMND #5-Promissory Note - IFA #B06003 Amendment Number 5 Project Name: Jefferson and Washington Street Improvements This amendment is made and entered into by and between the State of Oregon, acting by and through its Oregon Infrastructure Authority of the Business Development Department ("State"), and City of Ashland ("Borrower"), and amends the Financial Assistance Award Contract for Interim Financing, Project Number B06003 (as amended, "Contract") and Loan Agreement (as amended, "Loan Agreement"), both dated as of February 7, 2007 (the Contract and Loan Agreement collectively the "Agreements"), for the above-named Project. Capitalized terms not defined in this amendment shall have the meanings assigned to them by the Agreements. Recital: The State provided Borrower with financing in the form of a Loan of $500,000 and a Grant of $400,000 for the Project referenced above, pursuant to the Agreements; and the Contract was amended on April 8, 2011, to reduce the Loan to $390,000, the Grant to $310,000 and the Costs of the Project to $700,000. The job creation requirements for the Grant have been partially fulfilled, and Borrower has applied to State to convert the unfilled $28,100 portion of the Grant to an increase in the Loan so that the new Loan amount will be $418,100; and to convert the Loan from an interim loan to a permanent long- term loan; and State is willing to do so. The parties agree to: 1. Amend and restate Sections 2.A and 2.13 of the Contract as follows (additions shown in double- underline; deletions in StFik~ lh Hgh : " A. Amount of Loan. Subject to the terms and conditions of this Contract and the Loan Agreement, the State agrees to loan and disburse to Borrower, and Borrower agrees to borrow and accept from State, a non-revolving loan in the maximum aggregate principal amount of $390,009 41 I (the "Loan"). B. Amount of Grant. Subject to the terms and conditions of the Contract, the State agrees to provide a grant to the Borrower in the amount of $310,009 2 1 (the "Grant")." 2. Amend and restate the first paragraph of Section 5.L of the Contract as follows (additions shown in double-underline; deletions in stFilEethFE)Ugh): " L. Job Creation and Retention or Grant Repayment. In order to retain the Grant, Borrower will create and maintain or cause to be created and maintained at the Brammo Motorsports, LLC ("Brammo") facilities located in Ashland, Oregon a minimum of 62 new full-time equivalent jobs for at least one year, such one-year period to begin no earlier than July 1, 2008 and end no later than dtfne30 u~ I 16, 2013 (such one year period to be referred to below as the "Retention Period"). If Borrower does not maintain or cause to be maintained at the Brammo facilities at least 62 full-time equivalent jobs for the Retention Period, Borrower shall repay to State Grant moneys equal to $5,000 multiplied by the difference obtained by subtracting the total number of jobs Borrower did create and maintain or cause to be created and maintained for the Retention Period from 62; provided, however, that if the full amount of the Grant was not disbursed to Borrower, then the repayment obligation of Borrower under this Section 5.L, if any, shall be reduced (but not to an amount less than zero) by the portion of the Grant that was not disbursed. As of July 16. 2013. Borrower partially met the iobs creation and retentio requirements set forth above. Grant repayment shall occur by adding the repayment obligation amount of $28 100 to the amount of the Loan, to be repaid according to the terms of the Loan Agreement." Amendment Number 5 infrastructure Finance Authority/B06003, A-05 Ashland Amend.docx Page I of 2 3. Amend and restate the following definition in Section 1.01 of the Loan Agreement (addition shown in double-underline; deletion in stirikethreugh : " "Loan" means the non-revolving loan to be made by the State to the Borrower to provide tnlerirx oermanent financing for a portion of the Costs of the Project pursuant to this Loan Agreement." 4. Delete the current Exhibits A, D, and F to the Loan Agreement and replace them with the attached new Exhibits A, D, and F. The State shall have no obligation under this amendment, unless prior to October 4, 2013, Borrower delivers to State the following items, each in form and substance satisfactory to State and its Counsel: (i) This amendment duly executed by an Authorized Officer of Borrower. (ii) A copy of the ordinance, order or resolution of the governing body of Borrower, certified by an Authorized Officer of Borrower, authorizing the borrowing of the increased Loan amount, and the contemplated transactions under this amendment, and the execution and delivery of the replacement Note by an Authorized Officer of Borrower. (iii) A replacement Note duly executed by an Authorized Officer of Borrower, substantially in the form of Exhibit F. (iv) Such other certificates, documents, opinions and information as the State may reasonably require. Except as specifically provided above, this amendment does not modify the Agreements, and Agreements shall remain in full force and effect during the term thereof. This amendment is effective on the date it is fully executed and approved as required by applicable law. F Q. .:..~sl t 61 STATE OF OREGON CITY OF ASHLAND acting by and through its Oregon Infrastructure Finance Authority the Business DeV lopme t Depart ment By: aulina Layton, Manager Dave Kanner, i Administrator Pro r /m Se ices Division i? Date: Date: q143 APPROVED AS TO LEGAL SUFFICIENCY IN ACCORDANCE WITH ORS 291.047: /s/Lynn T. Nagasako as per email dated 25 March 2013 Lynn T. Nagasako, Sr. Assistant Attorney General Amendment Number5 Infrastructure Finance Authority/B06003,A-05 AshlandAmend.dooa Page 2of2 Loan Agreement Exhibit A Page 1 of 1 Exhibit A SPECIAL CONDITIONS OF AWARD General Fund Pledge. The Borrower pledges its full faith and credit and taxing power within the limitations of Article X1, sections 1 1 and I I b, of the Oregon Constitution to pay the amounts due under the Loan Agreement and the Note. This Loan Agreement and the Note are payable from all legally available funds of Borrower. Amendment Number 5 Infrastructure Finance Authority/B06003, A-05 Ashland Amend.docz Loan Agreement Exhibit D Page 1 of 1 Exhibit D DESCRIPTION OF THE LOAN 1. Loan Closing Deadline: February 7, 2007 2. Name and Address of Borrower: City of Ashland 20 East Main Street Ashland, OR 97520 3. Costs of the Project: $700,000 4. Estimated Project Completion Date: June 30, 2011 5. Maximum Aggregate Principal Amount of Loan: $418,100 6. Interest Rate: 3.77% per annum 7. Maturity Date: December I, 2023 8. Authorized Officer(s) of Borrower: Mayor Amendment Number 5 Infrastructure Finance Authority/B06003, A-05 Ashland Amend.docx Loan Agreement Exhibit F Page 1 of 1 City of Ashland PROMISSORY NOTE Dated XXXXXXXXXXXXXX, XXXX Ashland, Oregon FOR VALUE RECEIVED, the City of Ashland, 20 East Main Street, Ashland, OR 97520 ("Borrower"), unconditionally promises to pay in lawful money of the United States of America to the order of the STATE OF OREGON, ACTING BY AND THROUGH THE OREGON INFRASTRUCTURE FINANCE AUTHORITY OF THE BUSINESS DEVELOPMENT DEPARTMENT ("State"), at its principal office at 775 Summer Street NE, Suite 200, Salem, OR 97301-1280, or such other place as State or other holder of this Note may designate, the principal sum of Four Hundred Eighteen Thousand, One Hundred Dollars ($418,100) or so much as is disbursed under the Contract (as defined below), plus interest on each disbursement at the Note Interest Rate of Three and 77/100 percent (3.77%) per annum, from the disbursement date until paid. Interest will be computed on the basis of a 360-day year, consisting of twelve 30-day months. This Note is subject to and secured by that certain loan agreement, number B06003, between State and Borrower (as amended from time to time, the "Loan Agreement"). Capitalized terms not otherwise defined in this Note will have the meanings assigned to them by the Loan Agreement. The Borrower shall pay all previously accrued interest on December 1, 2013. Thereafter, Borrower shall make level installment payments of principal and interest, commencing on December 1, 2014 and then on each succeeding December 1. Each such installment will be in an amount sufficient to pay the interest accrued to the date of payment and so much of the principal as will fully amortize the Loan by the Maturity Date. On the Maturity Date, the entire outstanding principal balance and all accrued unpaid interest will be due and payable in full. This Note is subject to mandatory prepayment and is payable prior to its maturity, and each payment made by Borrower will be applied as provided in section 2.04(c) of the Loan Agreement. If any Event of Default occurs, the outstanding balance of the Note (including 'ncipaI' interest and other charges, if any), at the option of State, becomes immediately due and p le f accordance with section 6.03 of the Loan Agreement. Failure or delay of the holder 0" 'hi ote exercise any option available under the terms of this Note, the Loan Agreement or any of the F anc' oc menu will not constitute a waiver of the right to exercise the option in the t of an continui or subsequent default of the same or of any other provision. Presentment, dis nor, notice o ish or, rotest are hereby waived. To the extent permitted by the Oregon Co tit tion TTd~the r on ort i s A , the prevailing party in any dispute arising from this Note ' en 'Ile to ver is aso le at eys' fees and costs at trial and on appeal. Reasonable o ys' f s annot ceed a rat arged to State by its attorneys. The Borrower shall, o dema d, a to to a re onable ex ses incurred by State in the collection of Loan payment The laws of the Sta a of gon wit ut iv e c t ' s conflicts of law principles) govern all matters arising out of or rel mg th N t inc n without limitation, its validity, interpretation, constructio , perfo anc an @nfo in nt. Notic to rrowe o t sign this Note before you read it. CITY OF ASHLAND By: XXXXXXXXXXXXXXXXXXXX Title: XXXXXXXXXXXXXXXXXXXX Amendment Number 5 infrastructure Finance Authority/ B06003, A-05 Ashland Amend.doc. Promissory Note Page I of I City of Ashland PROMISSORY NOTE Dated Aut,0sv- Ao 3 Ashland, Oregon FOR VALUE RECEIVED, the City of Ashland, 20 East Main Street, Ashland, OR 97520 ("Borrower"), unconditionally promises to pay in lawful money of the United States of America to the order of the STATE OF OREGON, ACTING BY AND THROUGH THE OREGON INFRASTRUCTURE FINANCE AUTHORITY OF THE BUSINESS DEVELOPMENT DEPARTMENT ("State"), at its principal office at 775 Summer Street NE, Suite 200, Salem, OR 97301-1280, or such other place as State or other holder of this Note may designate, the principal sum of Four Hundred Eighteen Thousand, One Hundred Dollars ($418,100) or so much as is disbursed under the Contract (as defined below), plus interest on each disbursement at the Note Interest Rate of Three and 77/100 percent (3.77%) per annum, from the disbursement date until paid. Interest will be computed on the basis of a 360-day year, consisting of twelve 30-day months. This Note is subject to and secured by that certain loan agreement, number B06003, between State and Borrower (as amended from time to time, the "Loan Agreement"). Capitalized terms not otherwise defined in this Note will have the meanings assigned to them by the Loan Agreement. The Borrower shall pay all previously accrued interest on December I, 2013. Thereafter, Borrower shall make level installment payments of principal and interest, commencing on December 1, 2014 and then on each succeeding December 1. Each such installment will be in an amount sufficient to pay the interest accrued to the date of payment and so much of the principal as will fully amortize the Loan by the Maturity Date. On the Maturity Date, the entire outstanding principal balance and all accrued unpaid interest will be due and payable in full. This Note is subject to mandatory prepayment and is payable prior to its maturity, and each payment made by Borrower will be applied as provided in section 2.04(c) of the Loan Agreement. If any Event of Default occurs, the outstanding balance of the Note (including principal, interest and other charges, if any), at the option of State, becomes immediately due and payable in accordance with section 6.03 of the Loan Agreement. Failure or delay of the holder of this Note to exercise any option available under the terms of this Note, the Loan Agreement or any of the Financing Documents will not constitute a waiver of the right to exercise the option in the event of any continuing or subsequent default of the same or of any other provision. Presentment, dishonor, notice of dishonor, and protest are hereby waived. To the extent permitted by the Oregon Constitution and the Oregon Tort Claims Act, the prevailing party in any dispute arising from this Note is entitled to recover its reasonable attorneys' fees and costs at trial and on appeal. Reasonable attorneys' fees cannot exceed the rate charged to State by its attorneys. The Borrower shall, on demand, pay to State reasonable expenses incurred by State in the collection of Loan payments. The laws of the State of Oregon (without giving effect to its conflicts of law principles) govern all matters arising out of or relating to this Note, including, without limitation, its validity, interpretation, construction, performance, and enforcement. Notice to Borrower: Do not sign this Note before you read it. CIT OFASHLAND By: Title: U Y Aprl alsc7t~so2 Amendment Number 5 Infrastructure Finance Authority/B06003, A-05Ashland Promissory Note.docx business Infrastructure Finance Authority August 19, 2013 RECEIVED AUG 2 3 201j David Kanner, City Administrator !Si"Lf ~ 6&rO64 City of Ashland {p 'PKI d jyliw 20 East Main Street Ashland, OR 97520 RE: Special Public Works Fund Agreement, Ashland - Jefferson and Washington Street Improvements, Project No. B06003, Executed Amendment No. 5 Dear Mr. Kanner: Thank you for returning the two signed originals of the Special Public Works Fund, Project No. B06003 Amendment No. 5. Enclosed please find an executed original for your project file. Should you have any questions, please do not hesitate to contact your Regional Coordinator, Fumi Schaadt, at 503-986-0027 or email to: fumi.schaadt@state.or.us. Sincerely, r Mari Kamowski, Administrative Assistant Infrastructure Finance Authority Enclosure Cc: File 775 Summer St, NE, Suite 200 • Salem, OR 97301-1280 503-986-0123 • fax 503-581-5115 • TTY 800-735-2900 • w .orinfrastructure.org