CLEAN WATER STATE REVOLVING FUND
LOAN AGREEMENT NO. R74168
AMENDMENT NO. 1
CITY OF PORTLAND
This Amendment No. 1 to Loan Agreement No. R74168 (as amended “Loan Agreement”) is executed between the STATE OF OREGON ACTING BY AND THROUGH ITS DEPARTMENT OF ENVIRONMENTAL QUALITY (“DEQ”) and the City of Portland (the “Borrower”), effective as of the Effective Date of Amendment indicated below. Capitalized terms used in this Amendment which are not defined herein shall have the meanings assigned to them in the Loan Agreement.
DATE OF ORIGINAL AGREEMENT: November 5, 2004.
EFFECTIVE DATE OF AMENDMENT NO. 1: November 17, 2006.
The parties agree as follows:
1. ARTICLE 1(H) is amended and restated as follows:
“(H) REPAYMENT PERIOD: Twenty (20) years from the Completion Date.”
2. ARTICLE 1(I) is amended and restated as follows:
“(I) TERMS OF REPAYMENT: One semi-annual payment of interest only and thereafter semi-annual payments of principal and interest in accordance with Appendix A and ARTICLE 2(F) of this Agreement.”
3. ARTICLE 2(F)(4) is amended and restated as follows:
“(4) Crediting of Unscheduled Payments. All unscheduled payments, including any prepayments and partial payments, will be applied first to fees due, if any, and then to accrued unpaid interest (which will be computed as otherwise provided in this Agreement, except that interest from the last payment date will be calculated using a 365/366 day year and actual days elapsed), and then to principal. In the case of a Loan prepayment that does not prepay all of the principal of the Loan, DEQ will determine, in its sole discretion, how it will apply such Loan prepayment to the Outstanding Loan Amount. After a partial payment, DEQ may, in its sole and absolute discretion, reamortize the Outstanding Loan Amount at the same interest rate for the same number of payments to decrease the Loan payment amount; provided, however, that nothing in this Agreement requires DEQ to accept any partial payment or to reamortize the Outstanding Loan Amount if it accepts a partial payment.”
4. ARTICLE 2(F)(5) is amended and restated as follows:
“(5) Final Payment. The Outstanding Loan Amount, all accrued and unpaid interest, and all unpaid fees and charges due hereunder are due and payable no later than twenty (20) years after the Completion Date.”
5. The following new ARTICLE 2(G)(3) is inserted in the Loan Agreement:
“(3) Ineligible Uses of the Project. If the Borrower uses the Project for uses that are other than those described in ARTICLE 1(F) ("ineligible uses"), the Borrower shall, upon demand by DEQ, prepay an amount equal to the Outstanding Loan Amount multiplied by the percentage (as determined by DEQ) of ineligible use of the Project. Such prepayment shall be applied against the most remotely maturing principal installments and shall not postpone the due date of any payment(s) hereunder.”
6. The following is added at the end of ARTICLE 5(A)(1):
“(1) The Borrower acknowledges and agrees that the Costs of the Project do NOT include any Lobbying costs or expenses incurred by Borrower or any person on behalf of Borrower and that Borrower will not request payment or reimbursement for Lobbying costs and expenses. "Lobbying" means influencing or attempting to influence a member, officer or employee of a governmental agency or legislature in connection with the awarding of a government contract, the making of a government grant or loan or the entering into of a cooperative agreement with such governmental entity or the extension, continuation, renewal, amendment or modification of any of the above.”
7. ARTICLE 5(A)(9) is amended and restated as follows:
“(9) Interest paid on this Loan Agreement is not excludable from gross income under Section 103(a) of the United States Internal Revenue Code of 1986, as amended (the "Code"). However, DEQ may have funded this Loan with the proceeds of state bonds that bear interest that is excludable from gross income under Section 103(a) of the Code. Section 141 of the Code requires that the State not allow the proceeds of the state bonds to be used by private entities (including the Federal government) in such a way that the state bonds would become "private activity bonds" as defined in Section 141 of the Code. To protect the state bonds the Borrower agrees that it shall not use the Loan proceeds or lease, transfer or otherwise permit the use of the Project by any private person or entity in any way that that would cause this Loan Agreement or the state bonds to be treated as "private activity bonds" under Section 141.”
8. The second sentence of ARTICLE 5(C)(1) is amended and restated as follows:
“Until the Final Loan Amount is calculated, the Loan Reserve Requirement is $10,253.”
9. ARTICLE 6(D)(1) is amended and restated as follows:
“(1) Davis-Bacon Requirements. The Project is not subject to the wage rate requirements of the Davis-Bacon Act, as amended, 40 U.S.C. §§276a to 276a-5 (1994). However, all contracts and subcontracts awarded as part of the Project shall comply with the requirements of the Prevailing Wage Rates for Public Works Projects in Oregon established under ORS 279C.800 through 279C.870 and OAR 839-025-0000 through 839-025-0540.”
10. ARTICLE 9(T) is amended and restated as follows:
“(T) “REPAYMENT PERIOD” means the repayment period specified in ARTICLE 1(H) which shall not in any event exceed twenty (20) years after the Completion Date.”
11. The attached “Appendix A: Repayment Schedule” replaces the current “Appendix A: Repayment Schedule”.
Except as expressly amended above, the terms and conditions of the Loan Agreement shall remain in full force and effect.
BORROWER: CITY OF PORTLAND
By: Date:
Typed Name:
Title: ____________________________
STATE OF OREGON ACTING BY AND THROUGH ITS
DEPARTMENT OF ENVIRONMENTAL QUALITY
By: Date:
Lauri G. Aunan, Water Quality Administrator
Approved as to Legal Sufficiency
By the Attorney General’s Office ____________________________ ________
Lynn T. Nagasako, Senior AAG Date
APPENDIX A: REPAYMENT SCHEDULE