HomeMy Public PortalAbout16248 FIN WIFIA Loan Agreement Amending Ordinance and Exhibit AORDINANCE NO. 16248
AN ORDINANCE AMENDING THE WIFIA LOAN AGREEMENT (WIFIA ID – N17132MO) DATED DECEMBER 19, 2018 BETWEEN THE METROPOLITAN ST. LOUIS SEWER DISTRICT AND THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY.
WHEREAS, The Metropolitan St. Louis Sewer District (the “District”), a body corporate, a municipal corporation and a political subdivision duly organized and existing under the constitution and laws of the State of Missouri and the District’s Charter (Plan), as amended, approved by the voters for its government (the “Charter”), owns and operates a revenue producing sanitary sewer system (the “System”);
WHEREAS, 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”),
which is codified as 33 U.S.C. §§ 3901-3915, the United States Environmental Protection Agency (the “WIFIA Lender”), is authorized 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 District and the WIFIA Lender entered into that certain WIFIA Loan Agreement
(WIFIA ID – N17132MO), dated as of December 19, 2018, for the Deer Creek Sanitary Tunnel Pump Station and Sanitary Relief Project (the “2018 WIFIA Loan Agreement”), for the provision of a WIFIA Loan (as defined in the 2018 WIFIA Loan Agreement) in a principal amount not to exceed forty-seven million seven hundred twenty-two thousand two hundred and four Dollars ($47,722,204) to be used to pay a portion of the Eligible Project Costs (as defined in the 2018 WIFIA Loan Agreement) related to the Project (as defined in the 2018 WIFIA Loan Agreement) to improve the System;
WHEREAS, pursuant to Master Bond Ordinance No. 11713, adopted by the Board of Trustees of the District on April 22, 2004, and Ordinance No. 15077, adopted by the Board of Trustees of the District on December 13, 2018 (the “Series 2018A Bond Ordinance”), the District issued its Wastewater System Revenue Bonds (WIFIA – Deer Creek Sanitary Tunnel Pump Station and Sanitary Relief Project) Series
2018A (the “Bonds”) in the maximum principal amount of $47,722,204, dated December 19, 2018, purchased by the WIFIA Lender to evidence the District’s borrowing under the 2018 Loan Agreement;
WHEREAS, Section 31 of the 2018 Loan Agreement authorizes amendments to the 2018 Loan Agreement with the written consent of each party thereto; and
WHEREAS, the District hereby finds that it is necessary and advisable to amend the 2018 WIFIA Loan Agreement as described in the herein defined Amendment.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF TRUSTEES OF THE METROPOLITAN ST. LOUIS SEWER DISTRICT, AS FOLLOWS:
Section 1. Approval of Amendment No. 1 to the 2018 WIFIA Loan Agreement. The Board of Trustees hereby approves the Amendment No. 1 to the 2018 WIFIA Loan Agreement between the WIFIA Lender and the District (the “Amendment”), in substantially the form presented to and approved by the Board of Trustees and attached to this Ordinance as Exhibit A. The Secretary-Treasurer is hereby authorized to execute the Amendment, for and on behalf of and as the act and deed of the District.
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Section 2. Further Authority. The officers of the District, including the Chairman of the Board of Trustees, the Executive Director and the Secretary-Treasurer, are hereby authorized to take such
further action and execute such other documents, certificates and instruments as may be necessary or desirable to carry out and comply with the intent of this Ordinance.
Section 3. Effective Date. This Ordinance shall be in full force and effect in accordance with the provisions of the Charter.
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The foregoing Ordinance was Adopted October 12, 2023.
EXHIBIT A AMENDMENT NO. 1 TO THE 2018 WIFIA LOAN AGREEMENT
AMENDMENT NO. 1
dated as of October 12, 2023
between
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
and
THE METROPOLITAN ST. LOUIS SEWER DISTRICT
in connection with the
WIFIA Loan Agreement dated as of December 19, 2018, between the United States Environmental Protection Agency, acting by and
through the Administrator of the Environmental Protection Agency,
and The Metropolitan St. Louis Sewer District, for the DEER CREEK SANITARY TUNNEL PUMP STATION AND SANITARY
RELIEF PROJECT
(WIFIA ID – N17132MO)
AMENDMENT NO. 1 THIS AMENDMENT NO. 1 (this “Amendment”), dated as of October 12, 2023, is by and between THE METROPOLITAN ST. LOUIS SEWER DISTRICT, a body corporate, a
municipal corporation and a political subdivision of the state created under the laws of the State of Missouri, with an address at 2350 Market Street, St. Louis, Missouri 63103 (the “Borrower”), 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 “Administrator”), with an address at 1200 Pennsylvania Avenue NW,
Washington, D.C. 20460 (the “WIFIA Lender”).
RECITALS:
WHEREAS, 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”), which is codified as 33 U.S.C. §§ 3901-3915, the WIFIA Lender is authorized 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 and the WIFIA Lender entered into that certain WIFIA Loan Agreement (WIFIA ID – N17132MO), dated as of December 19, 2018, for the Deer Creek Sanitary
Tunnel Pump Station and Sanitary Relief Project (the “WIFIA Loan Agreement”), for the provision of a WIFIA Loan (as defined in the WIFIA Loan Agreement) in a principal amount not to exceed forty-seven million seven hundred twenty-two thousand two hundred and four Dollars ($47,722,204) to be used to pay a portion of the Eligible Project Costs (as defined in the WIFIA Loan Agreement) related to the Project (as defined in the WIFIA Loan Agreement);
WHEREAS, the Borrower and the WIFIA Lender have also entered into that certain WIFIA Loan Agreement (WIFIA ID – N21131MO) dated as of September 20, 2023 (the “2023 WIFIA Loan Agreement”), for the MSD Project Clear – Bissell and Lemay Service Area System Improvements Project (“2023 Project”), for the provision of a WIFIA Loan (as defined in the 2023 WIFIA Loan Agreement) in a principal amount not to exceed three hundred thirty million
Dollars ($330,000,000) to be used to pay a portion of the Eligible Project Costs (as defined in the 2023 WIFIA Loan Agreement) related to the 2023 Project;
WHEREAS, the Borrower desires to amend the WIFIA Loan Agreement to align it with certain provisions included in the 2023 WIFIA Loan Agreement, and the parties hereto have agreed to make certain amendments to the WIFIA Loan Agreement as set forth below; and
WHEREAS, the WIFIA Lender has entered into this Amendment in reliance upon, among other things, the information and representations of the Borrower set forth in this Amendment and the supporting information provided by the Borrower.
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NOW THEREFORE, the parties to this Amendment hereby agree as follows:
Section 1. Definitions.
Except as otherwise expressly provided herein or unless the context otherwise requires, capitalized terms not otherwise defined herein shall have the meanings specified in the WIFIA Loan Agreement.
Section 2. Amendments.
Each of the parties hereto hereby agree to amend the WIFIA Loan Agreement, as follows: (a) Section 1 (Definitions) of the WIFIA Loan Agreement is hereby amended by adding the following definitions, in each case in alphabetical order:
““Unique Entity Identifier” has the meaning provided in Section 15(p) (Affirmative Covenants). “WIFIA CUSIP Number” means 592302 AA1, as the CUSIP number for the
WIFIA Loan for purposes of monitoring through EMMA.”
(b) Section 15(g)(i)(J), 15(g)(i)(L), and 15(g)(i)(M) (Notice) of the WIFIA Loan Agreement is hereby amended by deleting such provisions in their entirety and replacing them with the following:
“(J) Ratings Changes: any change in the rating assigned to the WIFIA Loan,
any Senior Bonds or any Subordinated Obligations by any Nationally Recognized Rating Agency that has provided a public rating on such indebtedness, the Borrower, the System or the Net Operating Revenues; 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;
(L) Issuance of Obligations: the issuance of any Obligations, which notice shall be accompanied by copies of the Continuing Disclosure Agreement with respect to such Obligations, if any, or a copy of the offering document for such Obligations which includes
a summary of the Continuing Disclosure Agreement; 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; (M) Postings on EMMA: the posting of any document on EMMA in accordance
with the requirements of any Continuing Disclosure Agreement 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 documents on EMMA under the WIFIA CUSIP Number with a reference to the relevant WIFIA provision of this Agreement;”
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(c) Section 15(g)(i) (Notice) of the WIFIA Loan Agreement is hereby amended by
adding the following new sub-clause after sub-clause (N) (Other Adverse Events):
“(O) SAM / Unique Entity Identifier: any change in the Borrower’s SAM registration status (including any exclusions, expiration or inactive registration) or Unique Entity Identifier (including any expiration or change in effectiveness); 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.” (d) Section 15(o) (SAM Registration) of the WIFIA Loan Agreement is hereby
amended by deleting the provision in its entirety and replacing it with the following:
“(o) SAM Registration. The Borrower shall obtain and maintain an active registration status with the federal System for Award Management (www.SAM.gov) (or any successor system or registry) prior to the Effective Date and provide such registration
information to the WIFIA Lender through the Final Maturity Date or to such earlier date as
all amounts due or to become due to the WIFIA Lender under this Agreement have been irrevocably paid in full in cash.” (e) Section 15(p) (DUNS Number) of the WIFIA Loan Agreement is hereby amended
by deleting the provision in its entirety and replacing it with the following:
“(p) Unique Entity Identifier. The Borrower shall obtain and maintain the unique entity identifier issued by the Federal Government through www.SAM.gov (the “Unique Entity Identifier”) through the Final Maturity Date or to such earlier date as all amounts
due or to become due to the WIFIA Lender under this Agreement have been irrevocably paid
in full in cash.” (f) Section 21(a)(iv) (System-Related Accounting and Audit Procedures; Reports and Records) of the WIFIA Loan Agreement is hereby amended by deleting the provision in its entirety
and replacing it with the following:
“(iv) The Borrower shall provide to the WIFIA Lender, concurrently with delivery to any Bondholder, copies of all reports, notices and other written materials, other than those that are non-substantive or ministerial in nature, required to be sent to any
Bondholder under the Bond Ordinance Documents, relating to any of the operation of the
System, Operating Revenues, or rates and charges established by the Borrower for the System. Such information may be provided 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. The Borrower shall provide to the WIFIA Lender, within five
(5) Business Days of the distribution thereof, any notices or financial information relating to
Senior Bonds that the Borrower sends to the Municipal Securities Rulemaking Board. Such notices and/or financial information may be provided through the posting of the relevant
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documents on EMMA under the WIFIA CUSIP Number with a reference to the relevant
WIFIA provision of this Agreement.”
(g) Section 22(a) (Updated Financial Model) of the WIFIA Loan Agreement is hereby amended by deleting the first sentence in its entirety and replacing it with the following:
“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.” (h) Section 22(c) (Officer’s Certificate) of the WIFIA Loan Agreement is hereby amended by deleting the provision in its entirety.
Section 3. Representations and Warranties.
The Borrower represents and warrants that (a) the execution and delivery of this Amendment has been duly authorized; (b) this Amendment constitutes its legal, valid and binding obligation, enforceable in accordance with its terms; (c) the execution, delivery and performance
of this Amendment does not conflict with any provision of its charter or applicable law; (d) the
information it has provided to the WIFIA Lender in connection with this Amendment is true and correct in all material respects and does not omit any information related to the matters contemplated in this Amendment, the omission of which makes such information materially misleading in any respect; and (e) as of the date hereof, there is no Default or Event of Default, or
any event that, with the giving of notice and/or the passage of time, would constitute a Default or
Event of Default, that has occurred and is continuing. Section 4. Miscellaneous.
(a) Each of the parties hereto agree that:
(i) any reference in any of the WIFIA Loan Documents, or in any agreement, document or instrument contemplated thereby, to the WIFIA Loan Agreement shall be deemed to be a reference to the WIFIA Loan Agreement as amended by this Amendment;
(ii) the terms and conditions of the WIFIA Loan Agreement shall continue in
full force and effect unchanged, except as expressly amended by this Amendment; (iii) except as expressly provided in this Amendment, no provision of this Amendment shall be deemed (A) to be a consent, waiver, supplement to or modification of
the term or any condition of the WIFIA Loan Agreement, any other WIFIA Loan Document
or any of the instruments referred to therein, or (B) to prejudice any rights or remedies which the WIFIA Lender may have now or in the future under or in connection with the WIFIA Loan Agreement as amended by this Amendment, or any other WIFIA Loan Document; and
(iv) this Amendment shall be a WIFIA Loan Document.
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(b) The provisions of Sections 17 (Indemnification), 24 (Disclaimer of Warranty), 25
(No Personal Recourse), 26 (No Third Party Rights) and Sections 31 (Amendments and Waivers) through (and including) Section 38 (Notices; Payment Instructions) of the WIFIA Loan Agreement are incorporated herein and shall apply herein, mutatis mutandis, as if set out in this Amendment in full (and as if each reference therein to “this Agreement” were, or included (as applicable), a
reference to this Amendment.
(c) This Amendment shall be effective as of the date set forth on the first page of this Amendment.
[Signature pages follow on next page]
[Signature Page to Amendment No. 1 to WIFIA Loan Agreement for The Metropolitan St. Louis Sewer District – Deer Creek Sanitary Tunnel Pump Station and Sanitary Relief Project (WIFIA ID – N17132MO)]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
THE METROPOLITAN ST. LOUIS SEWER DISTRICT
By: ______________________________ Name: Tim R. Snoke
Title: Secretary-Treasurer
[Signature Page to Amendment No. 1 to WIFIA Loan Agreement for The Metropolitan St. Louis Sewer District – Deer Creek Sanitary Tunnel Pump Station and Sanitary Relief Project (WIFIA ID – N17132MO)]
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, acting by and through the Administrator of the
Environmental Protection Agency
By: ______________________________ Name: Jorianne Jernberg
Title: Director, WIFIA Program
Director, WIFIA Management Division