HomeMy WebLinkAboutAgenda - Read Before Packet - 4/19/2022 - Electric Utility Enterprise Board Agenda Item 2 - Ordinance No. 014 Authorizing A Loan Agreement With U.S. Bank National Association To Provide Funding For The Epic Loan Program Agenda Item 2
Item # 2 Page 1
AGENDA ITEM SUMMARY April 19, 2022
Utilities-Customer Connections
STAFF
Carolyn Conant, Energy Services Project Manager
John Phelan, Energy Services Manager
John Duval, Legal
SUBJECT
First Reading of Ordinance No. 014 An Ordinance of the City of Fort Collins, Colorado, Electric Utility
Enterprise Repealing its Ordinance No. 012, 2022, and Authorizing a Loan Agreement with U.S. Bank National
Association to Provide Funding for the Epic Loan Program.
EXECUTIVE SUMMARY
In 2012, Council established, by ordinance, the On-Bill Utility Financing Program, which is now known as the
Epic Loan Program. The Program provides financing for home energy projects by making loans to property
owners who are customers of Fort Collins Utilities. Staff is recommending the Electric Utility Enterprise borrow
additional capital for the Program by entering into a second loan agreement with U.S. Bank. This Ordinance
authorizes the Enterprise to borrow up to $2.5 million, under a line of credit, from U.S. Ban k as additional
funding for the Program (Loan). The blended public and private capital strategy of Epic Loans has worked well
for the last several years and supports the projected Epic Homes funding needs.
The Council Finance Committee expressed their support for the proposed agreement renewals at their
February 4, 2022, meeting.
The Enterprise Board adopted its Ordinance No. 012, to authorize the Loan on April 5, 2022, but Ordinance
No. 012 was not published after adoption as required by the Charter. I t is necessary that the Enterprise Board
repeal Ordinance No. 012 and adopt this Ordinance to authorize and approve the Loan again. The Enterprise
has taken no action on the Loan under Ordinance No. 012.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinance on First Reading.
BACKGROUND / DISCUSSION
Epic Homes
Epic Homes is a comprehensive program to help Fort Collins Utilities customers achieve more efficient,
comfortable, and healthy home living environments for homeowners and renters alik e. The program
encompasses various offerings, including:
• Discounted home energy assessments
• Substantial rebates on improvement projects
• Participating contractors
• Quality assurance
Agenda Item 2
Item # 2 Page 2
• Attractive on-bill financing options
• Certificates that document energy improvements
• Indoor air quality assessments
The program started in 2010 as the Home Efficiency Program. In 2015, the program transitioned to a regional
offering with Platte River Power Authority as Efficiency Works Homes. In October 2018, Fort Coll ins became a
winner of the 2018 Bloomberg Mayors Challenge and the associated $1 million prize. The 2018 Bloomberg
Mayors Challenge involved over 300 cities proposing ideas to address important issues in their community.
The City’s proposal, Epic Homes, was selected as a winner for its innovative approach to providing health and
equity benefits to residents, specifically for low -to-moderate income renters, by improving the energy efficiency
of homes. Residential property owners can take advantage of Epic Homes’ easy, streamlined steps to make
their homes more comfortable, healthy, and efficient. Partnering with Colorado State University, Fort Collins
also established a research study which links the health and well-being indicators of improved indoor
environmental quality from efficiency upgrades.
Epic Homes provides non-energy benefits in addition to efficiency, such as increased comfort, health, and
safety. Rebates and loans are available for over 25 different measures, such as replacing an old furnace, a ir
sealing to reduce leakage, insulation, solar panels, and battery storage.
Epic Loans
Epic Loans is Fort Collins’ on-bill finance program (previously known as Home Efficiency Loan Program or
HELP). It is a component of the Epic Homes portfolio which supports community priorities for energy efficiency,
renewables, reduced greenhouse gas emissions, and increased equity and well -being for residents. Providing
a simple, low-cost financial tool with Epic Loans helps to meet these objectives to help propert y owners
undertake comprehensive efficiency improvements. This is especially important for older, less efficient rental
properties, which make up a significant percentage of the City’s housing stock.
Detailed information regarding the Epic Homes Program (Program) and loan terms can be found at
fcgov.com/epichomes <http://www.fcgov.com/epichomes>. The Program operates under authorization in Code
and the Financial Officer’s Rules and Regulations, as updated periodically. The Program operates with a
neutral balance sheet impact as the obligations to the third -party capital providers are balanced by the
obligations of customers to repay on their monthly utility bills.
The original on-bill finance program started issuing loans in 2013 and was paused in 2016 when the success
of the program adoption led to reaching the cap of maximum outstanding loan balance funded through Light &
Power reserves ($1.6 million). Building on this success, on -bill finance was revitalized as Epic Loans in August
2018 during the Champions Phase of the Bloomberg Mayors Challenge. The City has been awarded grants
from the Colorado Energy Office ($200,000) and from Bloomberg Philanthropies ($688,350 of the $1 million)
for the Epic Loan Program.
One of the workstreams of the Bloomberg Mayors Challenge project was to secure third-party capital as a
strategy to enable scaling of the program. In 2019, the Utilities entered into a $2.5 million line of credit loan
agreement with U.S. Bank to provide up to 10-year capital for the Program. This line of credit termed out in
December 2021. In 2020, an additional $2.5 million line of credit loan agreement was signed with Vectra Bank
Colorado to provide 15-year capital. This line of credit will term out in April 2022. Both agreements are
structured as lines of credit which are periodically converted into fixed rate term loans. (See Table 1 for a
summary of the program’s capital stack.)
Through 2021, Fort Collins Utilities serviced 346 on-bill loans to support energy efficiency upgrades in
residential homes and overcome financial barriers for making these important upgrades. The blending of zero
cost capital (reserves and grants) with low interest third -party capital is what enables the Program to offer
attractive and competitive interest rates a nd terms for customers. With the enterprise fund as the borrower, the
Program extends the benefits of the high credit rating of the organization to individual customers. These rates
are periodically adjusted based on the blended cost of capital. See Table 2 for current interest rates and Table
3 for program results.
Agenda Item 2
Item # 2 Page 3
An ongoing and attractive financing structure to support energy efficiency retrofits will be a critical element for
success moving forward. The low rates and scalability of these third -party agreements align with the
programmatic objectives and financial requirements of the City.
Table 1. Epic Loan Capital Stack Summary
Capital
Type
Provider Term Rate Amount
Internal &
Grant
Previously authorized Light &
Power reserves
Ongoing 0% $1,600,000
Bloomberg Philanthropies Grant 0% $688,350
Colorado Energy Office - Grant Grant 0% $200,000
Internal Subtotal $2,488,350
External
Market
Colorado Energy Office - Loan 15 year 0% $800,000
U. S. Bank 5 & 10 year 76% of Prime (2.47%
Currently)
Up to
$2,500,000
Vectra Bank Colorado 15 year 10-year Treasury rate plus
2.75%
Up to
$1800,000
External Subtotal $5, 100,000
Total $7588,350
Table 2. Customer Interest Rates
Loan Term Customer Rate
(Effective March 1 2022)
3 or 5 years 3.45%
7 or 10 years 3.65%
15 years 3.95%
Table 3. Program Results (through 2021)
Number of Loans Issued 346
Number of Outstanding Loans 206
Number of Loans Paid in Full 140
Total Amount Funded $4,826,943
Amount Outstanding $2,824,565
Total Amount of Interest Payments $268,193
Median Loan Amount $13,030
Median Monthly Principal Payment $79
Median Monthly Interest Payment $28
Agenda Item 2
Item # 2 Page 4
Third-Party Capital Agreements
The terms of the second U.S. Bank loan agreement are the same as those for the City’s first loan agreement
U.S. Bank which concluded in December 2021. These terms include:
• Amount: Up to $2,500,000
• Length: 10-years inclusive of draw period
• Draw period: Up to 2 years, with draw timing and amounts based on program / customer demand
• Fixed rate: 76% of the Prime Rate (2.47% Currently); Rate set at time of loan closing
• Collateral: None
• Pre-pay: The loan may be prepaid, in whole or in part, at the option of the Enterprise with no penalty.
Repayment position: Senior pledge on customer loan repayments and subordinate position on Electric Utility
revenues, after the more senior pledge held by revenue bondholders
CITY FINANCIAL IMPACTS
The Program is managed as a revolving loan program which is balance sheet neutral to the Electric Utility
Enterprise fund. The Program operates under several core tenets and guardrails, including:
• Maintaining an incremental interest rate of 0.75% to 1.0% above the blended source cost of capital and
customer lending rates. This results in a small positive cash flow.
• Lending rates are reviewed no less than twice annually.
• Ensuring parity between the length of term for borrowed capital and customer loans.
• Having no negative impact on future debt offering by the electric utility enterprise fund.
• Protecting Utilities credit rating and existing bond coverage covenants.
Staff also projects the agreements under consideration will meet the project demand for the next three to f our
years, and the agreements are not anticipated to affect electric rates.
Risks include lack of customer demand for energy upgrade loans and/or risk of customer default if borrowers
choose not to repay their Epic Loans. Customer default risk is consid ered de minimis based on lack of defaults
over the 8-year history of the Program and the default protections the City already has in place. Customer
demand risk is difficult to assess, but the line of credit model helps ensure that principal borrowed match es the
Epic Loan volumes as closely as possible.
BOARD / COMMISSION RECOMMENDATION
The Council Finance Committee reviewed the proposed second U. S. Bank loan agreement on February 4,
2022 and expressed their support. (Attachment 1)
The Energy Board reviewed the proposed agreement on February 10, 2022 and expressed their support.
(Attachment 2)
ATTACHMENTS
1. Council Finance Committee Minutes (draft) (PDF)
2. Energy Board Minutes (draft) (PDF)
3. Powerpoint Presentation (PDF)
Finance Administration
215 N. Mason
2nd Floor
PO Box 580
Fort Collins, CO 80522
970.221.6788
970.221.6782 - fax
fcgov.com
Finance Committee Meeting Minutes
February 4, 2022, 3-5 pm
Zoom
Council Attendees: Julie Pignataro, Kelly Ohlson, Emily Francis, Susan Gutowsky, Shirley Peel
Staff: Kelly DiMartino, Travis Storin, John Duval, Tyler Marr, Ginny Sawyer, Blaine
Dunn, Amanda Newton, Chad Crager, Dave Lenz, Jo Cech, Molly Reeves,
Javier Echeverria Diaz, John Phelan, Lance Smith, Carolyn Conant, Gerry Paul,
Victoria Shaw,Monica Martinez, Erik Martin, Zack Mozer, SeonAh Kendall,
Carolyn Koontz
Others: Eric Sutherland, Kevin Jones (Chamber), Sarah Hunt
______________________________________________________________________________
Meeting called to order at 3:01 pm
Approval of minutes from the January 6, 2022, Council Finance Committee Meeting. Emily Francis moved for
approval of the minutes as presented. Kelly Ohlson seconded the motion. Minutes were approved unanimously via
roll call by; Julie Pignataro, Kelly Ohlson and Emily Francis.
B.Renewal of EPIC Loans Third-Party Capital Agreements
John Phelan, Energy Services Senior Manager
Carolyn Conant, Project Manager
Amanda Newton, Sr. Analyst, Treasury
EXECUTIVE SUMMARY
The purpose of this item is to update Council Finance regarding the capital sources for the Epic Homes
program’s on-bill loan financing component, Epic Loans, and to seek support for presenting capital agreement
renewals to the Electric Utility Enterprise Board for approval. The blended public and private capital strategy of
Epic Loans has worked well for the last few years and supports the projected Epic Homes funding needs.
Staff recommend renewal of the current third-party capital agreements as a key component of the ongoing
implementation of Epic Loans.
GENERAL DIRECTION SOUGHT AND SPECIFIC QUESTIONS TO BE ANSWERED
Does the Committee support bring the proposed third-party capital agreement renewals to the Electric Utility
Enterprise Board for approval?
ATTACHMENT 1
BACKGROUND/DISCUSSION
Epic Homes
Epic Homes is a comprehensive program to help Fort Collins Utilities customers achieve more efficient,
comfortable, and healthy home living environments for homeowners and renters alike. The program
encompasses various offerings, including:
• Discounted home energy assessments
• Substantial rebates on improvement projects
• Participating contractors
• Quality assurance
• Attractive on-bill financing options
• Certificates that document energy improvements
• Indoor air quality assessments
The program started in 2010 as the Home Efficiency Program. In 2015, the program transitioned to a regional
offering with Platte River Power Authority as Efficiency Works Homes. In October 2018, Fort Collins became a
winner of the 2018 Bloomberg Mayors Challenge and the associated $1M prize. The 2018 Bloomberg Mayors
Challenge involved over 300 cities proposing ideas to address important issues in their community. The City’s
proposal, Epic Homes, was selected as a winner for its innovative approach to providing health and equity
benefits to residents, specifically for low-to-moderate income renters, by improving the energy efficiency of
homes. Residential property owners can take advantage of Epic Homes’ easy, streamlined steps to make their
homes more comfortable, healthy, and efficient. Partnering with Colorado State University, Fort Collins also
established a research study which links the health and well-being indicators of improved indoor environmental
quality from efficiency upgrades.
Epic Homes provides non-energy benefits in addition to efficiency, such as increased comfort, health, and safety.
Rebates and loans are available for over 25 different measures, such as replacing an old furnace, air sealing to
reduce leakage, insulation, solar panels, and battery storage.
Epic Loans
Epic Loans is Fort Collins’ on-bill finance program (previously known as Home Efficiency Loan Program or HELP).
It is a component of the Epic Homes portfolio which supports community priorities for energy efficiency,
renewables, reduced greenhouse gas emissions, and increased equity and well-being for residents. Providing a
simple, low-cost financial tool with Epic Loans helps to meet these objectives to help property owners undertake
comprehensive efficiency improvements. This is especially important for older, less efficient rental properties,
which make up a significant percentage of the City’s housing stock.
Detailed information regarding the Epic Homes program and loan terms can be found at fcgov.com/epichomes.
The program operates under authorization in Code and the Financial Officer’s Rules and Regulations, as updated
periodically. The program operates with a neutral balance sheet impact as the obligations to the third-party
capital providers are balanced by the obligations of customers to repay on their monthly utility bills.
The original on-bill finance program started issuing loans in 2013 and was paused in 2016, when the success of
the program adoption led to reaching the cap of maximum outstanding loan balance funded through Light &
Power reserves ($1.6 million). Building on this success, on-bill finance was revitalized as Epic Loans in August
2018 during the Champions Phase of the Bloomberg Mayors Challenge. The City has been awarded grants from
the Colorado Energy Office ($200,000) and from Bloomberg Philanthropies ($688,350 of the $1M) for the Epic
Loan Program.
One of the workstreams of the Bloomberg Mayors Challenge project was to secure third-party capital as a
strategy to enable scaling of the program. In 2019, the Utilities entered into a $2.5M line of credit loan
agreement with U.S. Bank to provide up to 10-year capital for the Epic Loan Program. This line of credit termed
out in December 2021. In 2020, an additional $2.5M line of credit loan agreement was signed with Vectra Bank
Colorado to provide 15-year capital. This line of credit will term out in April 2022. Both of these agreements are
structured as lines of credit which are periodically converted into fixed rate term loans. (See Table 1 for a
summary of the program’s capital stack.)
Through 2021, Fort Collins Utilities has serviced 346 on-bill loans to support energy efficiency upgrades in
residential homes and overcome financial barriers for making these important upgrades. The blending of zero
cost capital (reserves and grants) with low interest third-party capital is what enables the program to offer
attractive and competitive interest rates and terms for customers. With the enterprise fund as the borrower, the
program is able to extend the benefits of the high credit rating of the organization to individual customers.
These rates are periodically adjusted based on the blended cost of capital. See Table 2 for current interest rates
and Table 3 for program results.
An ongoing and attractive financing structure to support energy efficiency retrofits will be a critical element for
success moving forward. The low rates and scalability of these third-party agreements align with the
programmatic objectives and financial requirements of the City.
Table 1. Epic Loan Capital Stack Summary
Capital
Type
Provider Term Rate Amount
Internal &
Grant
Previously authorized Light &
Power reserves
Ongoing 0% $1,600,000
Bloomberg Philanthropies Grant 0% $688,350
Colorado Energy Office –
Grant
Grant 0% $200,000
Internal Subtotal $2,488,350
External
Market
Colorado Energy Office – Loan 15 year 0% $800,000
U. S. Bank 5 & 10 year 76% of Prime
(2.47% Currently)
Up to $2,500,000
Vectra Bank Colorado 15 year Fixed rate of
interest equal to
3.38% per
annum
Up to $2,500,000
External Subtotal $5,800,000
Total $8,288,350
Table 2. Customer Interest Rates
Loan Term Customer Rate (Effective
Aug. 2019)
3 or 5 years 2.95%
7 or 10 years 3.15%
15 years 3.25%
Note: Customer interest rates will be adjusted in Q1 2022
Table 3. Program Results
Number of Loans Issued 346
Number of Outstanding Loans 206
Number of Loans Paid in Full 140
Total Amount Funded $4,826,943
Amount Outstanding $2,824,565
Total Amount of Interest Payments $268,193
Median Loan Amount $13,030
Median Monthly Principal Payment $79
Median Monthly Interest Payment $28
Third-Party Capital Agreements
The terms of the previous US Bank loan agreement, which concluded in December 2021, included:
• Amount: Up to $2,500,000
• Length: 10-years inclusive of draw period
• Draw period: Up to 2 years, with draw timing and amounts based on program / customer demand
• Fixed rate: 76% of the Prime Rate (2.47% Currently); Rate set at time of loan closing
• Collateral: None
• Pre-pay: The loan may be prepaid, in whole or in part, at the option of the Enterprise with no penalty.
• Repayment position: Senior pledge on customer loan repayments and subordinate position on Electric
Utility revenues, after the more senior pledge held by revenue bondholders
The terms of the previous Vectra Bank Colorado loan agreement, which concludes in April 2022, included:
• Amount: Up to $2,500,000
• Length: 17 years inclusive of draw period
• Draw period: Up to 2 years, with draw timing and amounts based on program / customer demand
• Fixed rate: Fixed rate of interest equal to 3.38% per annum; Rate set at time of loan closing
• Collateral: None
• Pre-pay: City may pre-pay in whole or in part after 2027 with no penalty. No prepayment is allowed
prior to 2025, and between 2025 and 2027 there is a 1% prepayment fee.
• Repayment position: Senior pledge on customer loan repayments and subordinate position on Electric
Utility revenues, after the more senior pledge held by revenue bondholders
The new proposed loan agreements with both entities include the same terms.
Next Steps
• Staff seeks support from Council Finance to proceed for Electric Utility Enterprise Board consideration of the
proposed agreements. If supported, staff is scheduled to present the agreements on March 1, 2022.
• Finalization of the agreements and associated term sheets.
• Continue with program operations and financial transactions.
DISCUSSION / NEXT STEPS;
GENERAL DIRECTION SOUGHT AND SPECIFIC QUESTIONS TO BE ANSWERED
Does the Committee support bringing the proposed third-party capital agreement renewals to the Electric Utility
Enterprise Board for approval?
Julie Pignataro; I am a fan of this program and have personally taken advantage of it as has Councilmember
Canonico. This looks great to me and I do support bringing this forward. One question – When I was part of
the program, I either had to pay the minimum or the full loan balance because the city itself is not a bank.
If there any option in the future to changing that and provide the flexibility for loan recipient to pay other
amounts?
John Phelan; that part of the program was designed around our current utility billing system and has been that
way since it started in 2013. We don’t’ currently have the flexibility to apply a portion to pay an extra amount
(principal component). When we go out for a new billing system - we could ask for that capability
Simply – not tenable with our current billing system.
Emily Francis; I support the renewal and agree that this is a great program, and it is exciting to see that we are
planning to build it out. Question re: customer interest rates; If you are taking a longer term long you probably
need a lower rate - Why are the rates higher for the longer term?
John Phelan; a longer-term loan typically brings a higher interest rate. We do recognize that residents often
seeking the longer term are seeking the lowest payment possible - we try to hold that blended costs down as
much as we can while staying within the guidelines we have for the portfolio.
Emily Francis; so, that is something that the city is choosing to do and that we have control over
John Phelan; yes, part of our financial rules & regulations require that we relook at interest rates on a biannual
basis, and we continue to look for lower cost capital and that would help us drive down the costs for the
customers.
Travis Storin; some historical context around the 15-year term outside capital provided by Vectra Bank is the
most expensive component of the capital stack – in going out and seeking lenders the longer term was a risk – a
unique model – we did not know what the customer demand would be for EPIC loans – we said we don’t know
how much we need to borrow – can you give us a 2-year draw period and then lock us into a fixed rate. John is
correct – we set those rates as a staff and communicated with Council Finance per policy but that is always open
to revisiting. The rates came from how much is our own cost to borrow and the 15-year bucket has proven to be
the most costly for us – we have had zero defaults to date
Emily Francis; Thank you for the context - I would like to revisit those to make them more equally distributed
The cost of being poor is compounding - If city has control over this it shouldn’t matter how many years, I think
they should all be the same interest rate – I am happy with the program but would like to look at those interest
rates again.
Kelly Ohlson; Yes, I do support bringing this forward – it is an important program and is one of the good news
programs. Why the EPIC name? Was that part of the Bloomberg grant?
John Phelan; During the Bloomberg Mayors’ Challenge we introduced several potential names
and a focus group of our residents named the program - EPIC - Energy Performance Improvement Certificate
We recognize the potential conflict with the EPIC (Edora Pool & Ice Center) – we talked with our recreation folks
at the time
Kelly Ohlson; Do renters participate in this program in the buildings they are renting in?
John Phelan; ultimately, only a property owner can make decisions about physical improvements.
We target and market towards rental property owners and have been helping to articulate some of the benefits
to owners for a more comfortable and energy efficient homes. We are starting to see uptick in those rental
property owners participating in the program.
We apply the loan payment to the owner’s portion of the utility bill - not the renter.
So, the renter is not paying the increased costs. Any adjustments would be between the owner and the renters.
Kelly Ohlson; One of the work streams of the Bloomberg Mayor’s Challenge was to secure 3rd party capital - so
was that a requirement of the grant?
John Phelan; it was not a requirement but was something we proposed – part of the proof of concept
We used part of the Bloomberg prize money to leverage those dollars in discussions with private banks which
makes it scalable in a way that using reserve funds would not facilitate
Travis Storin; it is about scale at the end of the day - able to take $2.5M of zero interest money in the form of
grants and reserves and make it into an $8.3M program - the play is to use our institutional borrowing power to
deliver lower cost loans to our customers than they would be able to get in their own banking relationships.
Kelly Ohlson; what happened to the other $300K of Bloomberg money?
John Phelan; there were a number of other components to it – the largest one was the indoor environmental
quality study with CSU - we funded the initial study and research that has gone on for the last 3 years and will
continue at least through the end of this year and probably beyond with their own fund raising in bringing
research dollars to the table. Smaller parts were used for administrative costs over the course of the last 3
years.
Kelly Ohlson; 4600 homes have participated since 2010 - so is that under all of the program names added
together? Can you explain the different between the 4600 and the 346 on-bill loans?
John Phelan; the 4600 includes all participants under all program names (Home Efficiency Program, Efficiency
Works Homes & EPIC Homes) and includes all project types and the 346 loans includes all loans under two
program structures, the original Home Efficiency Loan Program that operated from 2013 – 2016 and then the
restarting of EPIC loans. Certainly not everyone takes a loan. Finances are one of the barriers to participating in
upgrading your home. We are neutral on how someone pays for it whether they choose to pay with their own
cash reserves or any other source, but we wanted to provide this tool so that if that is a barrier we can have an
effective solution for our customers.
Kelly Ohlson; 346 seemed like a low number for me
John Phelan; per slide 9 above, we had a very slow uptick in the first couple of years and then had a big spike in
2016 when Council reduced the interest rate dramatically and then we ran out of funds then the program was
closed for about 18 months in 2017 and 2018 and then it was restarted and now we are seeing in 2019, 2020
and 2021 is our start up rate with EPIC loans and we anticipate that this is going to continue to rise and then
level off to a more steady state number of participants and loans.
Kelly Ohlson; thank you – so a lot of folks participate without taking a loan. Would like to look at slide #14 (see
below) not sure I am understanding it correctly
Amanda Newton; there are two capital sources for funding.
The blue bar illustrates Reserves & Grants that we do not need to repay, and the orange bar represents the 3rd
party capital that we have borrowed and will need to be repaid. You can see the YOY percentage that will be
available to fund the future loans in the reserves & grant category is growing – in 10 years 2031 the blue portion
takes 43% of the column so you can see the usage is growing
Blaine Dunn; so if you look at 2022 to start with the 14% - we are going to loan out $2M to folks who want to
take out an EPIC loan and of that $2M we are going to use - roughly 14% of the capital will come from reserves
and grants (blue bar) and the remaining amount will come from 3rd party sources (orange bar) and as we jump
to 2031 we need between $2.5 and $3M and at that point based on the program and the way we are structuring
it, we will have built up additional reserves so of that $2.5M we are going to lend out 43% will come from grants
& reserves as we move forward and continue to build this program we will be able to rely less and less on the 3rd
party lenders and fund more from grants & reserves.
Julie Pignataro; as a visual suggestion, it might be helpful to put the number in the blue bars – might be clearer.
Susan Gutowsky; I love the EPIC program. I wanted to tell John that when I first came on Council, his was one of
the first presentations I saw because EPIC had just come up again and the refunding of it. One of the key things
I really appreciated was when you said that landlords could get these loans so they could improve the livability
of the properties that they were renting. Such a gift for renters who have no way to improve their living
conditions. I was hoping that many of the landlords were going to take advantage of that to make it feasible for
them to improve their properties by making them more comfortable in terms of even being better insulated and
having a healthier air quality.
John Phelan; we are seeing growing interest in rental properties, but we have a long way to go – it is still the
split incentive where the renters pay the utility bills, and the owner controls the assets, but we will continue to
push hard on that. We had an owner come forward and articulate his own reasons for doing upgrades on his
properties and we are hoping to convince more of the benefits.
Susan Gutowsky; I noticed that you mentioned this was an evergreen program. Can you help me understand
how you keep it evergreen and also is it for profit?
John Phelan; the evergreen is really in aligning the repayments of loans including early payoffs, which replenish
the capital so we can loan again. We are fortunate to have our finance partners with us and benefit from their
understanding of the blending of capital we are repaying to 3rd parties along with our own internal capital.
We have a small margin of ¾ to 1% on our interest rates to ensure that if we have variability in the interest rates
we have to repay as well as to decide how we might use that small margin to defray operational costs.
Not for profit but there is a little bit of a buffer built in. That was intended back in 2013 to ensure that this
program does not have any net impact on any other rate payers or customers - to operate independently of our
rate payers.
ENERGY BOARD
REGULAR MEETING-DRAFT – ABRIGED FOR EPIC LOAN CAPITAL
AGREEMENTS
February 10, 2022 – 5:30 pm
Remote – Zoom
ROLL CALL
Board Members Present: Bill Becker, Jeremy Giovando, Alan Braslau, Steve Tenbrink, Dan Gould,
Marge Moore, Sidra Aghabibian, Emilio Ramirez
Board Members Absent: John Fassler
OTHERS PRESENT
Staff Members Present: Marisa Olivas, Adam Bromley, Cyril Vidergar, John Phelan, Theresa Connor,
Lance Smith, Chad Crager, Travis Storin, Molly Reeves, Amanda Newton, Carolyn Conant, Cody
Snowdon, Councilmember Tricia Canonico
Members of the Public: Eric Sutherland, Thomas Loran, Rick Coen
Epic Loan Capital Agreements
John Phelan, Energy Services Senior Manager
Carolyn Conant, Project Manager, Utilities Customer Connections
Amanda Newton, Senior Analyst, Treasury
(Attachments available upon request)
Mr. Phelan explained the agenda item is a proposal to renew two third-party capital agreements for Epic
Home Loans. Specifically, the ask of the Energy Board is for a vote in support of the purposed third-party
capital agreement renewals to the electric utility enterprise board for approval [City Council].
Epic Homes is a comprehensive model for improving single family homes of all types, and one
component of Epic Homes is the loan program. Epic Home Loans are available for customers facing a
financial barrier. It is served as a utility bill, also known as “on bill financing,” structured through a balance
of a variety of capital sources (both internal and external). Epic Homes helps customers achieve more
efficient, comfortable, and healthy living for homeowners and renters alike. Epic Homes uses an
integrated approach to meet energy efficiency, comfort, health, and resilience.
Mr. Phelan reviewed a chart of the comprehensive portfolio for single-family home performance with Epic
Homes. He identified the target audience as customers in owner-occupied or renter-occupied properties.
The chart also showed the various components and partnerships key to the Epic Home program. While
showing program result data, Mr. Phelan pointed out that since 2010 over 4,600 home energy projects
have been completed and nearly $5 million issued in Epic Loans.
Mr. Phelan provided background of Epic Loans on-bill financing which started in 2013 strictly with L&P
Reserve funds and was paused in 2017 with a restart in 2018 with the Bloomberg Mayors Challenge. The
Epic Loans vision is a revolving loan fund, which support residential energy upgrades, scales to meet
long-term efficiency objectives, removes financial barriers to energy upgrades with attractive rates and
terms, aligns capital commitments with retail loan terms, and minimized the City and Utilities risk and
administrative effort. Mr. Phelan noted that the program has had zero defaults to date.
Ms. Newton explained how the City is playing a double role in the program as both a lender to Epic Loan
customers and as a borrower of third-party loans. This allows the Utility to utilize its borrowing power
ATTACHMENT 2
ENERGY BOARD
REGULAR MEETING
where some customers may otherwise not be able to secure a loan for such upgrades. The management
of the loan portfolio has an interest rate target of a blended cost of capital, plus administrative and risk
premium (maintaining 0.75% - 1.00% buffer between blended sources cost of capital and lending rates. A
consideration to keep in mind is that L&P will not have a negative impact on planned future debt offerings
and there is protection of Utilities credit rating and broadband’s coverage covenants.
Current capital funding sources include L&P Reserves, Bloomberg Philanthropies, Colorado Energy
Office, and third-party capital which accounts for 25% of outstanding loan balance. The proposed third-
party renewals are through US Bank and Vectra Bank. Ms. Newton explained that both US Bank and
Vectra had provided a line of credit for the first two years, and both had options to convert outstanding
balances into term loans, allowing loans to be locked at a fixed rate for longer terms . Ms. Newton shared
that there is about $5.8 million secured from external lenders, providing a total of $8.2 million in funding
capacity when combined with internal and grant resources.
The ten-year funding source forecast showed year-over-year average forecast of $2.8 funding needs, of
which $1.9 million would be from third-party borrowings. However, the ten-year forecast also show that
the Utility will be able to rely less on third-party loans over time with the amount in reserves and grants
continuously growing. Ms. Newton shared that City staff anticipates 10% loan growth over the next two to
four years and tapering off at 3% going forward.
Ms. Newton explained the new terms of the loan renewals. US Bank has kept all terms and conditions
unchanged, while Vectra Bank has offered a hold on the interest rate for one year (instead of two years
from the original agreement). The reason for Vectra’s term change is to serve as a protection for
themselves due to the rate rising environment. The Council Finance Committee recommended th at City
staff proceed with finalizing the agreements with both banks to bring forward to the Electric Utility
Enterprise Board on March 1, 2022.
Chairperson Tenbrink was curious of how many Epic Homes require loans. Mr. Phelan answered that is
probably on the order of 10% of the projects. Mr. Phelan reminded the Board that the goal is to complete
projects and not issue loans, the loans are more of a tool for customers. Mr. Tenbrink asked if there are
situations where a low-income family may not be able to afford the Epic Loan but need improvements. Mr.
Phelan confirmed that there are programs like Weatherization Assistance Program (WAP) and the Care
Program, which is delivered by the same contractors as Epic Home services. Mr. Phelan also shared that
Epic Loans has credit score and customer utility bill history as the two criteria of loan approval.
Vice Chairperson Moore moved for the Board to support bringing the proposed third-party capital
agreement renewals to the Electric Utility Enterprise Board for approval.
Board Member Braslau seconded the motion.
Discussion: None
Vote on the motion: It passed unanimously, 8-0.
Presented by:
Epic Loans:
Renewal of Third-Party
Capital Agreements
03-01-2022
John Phelan
Energy Services Senior Manager
ATTACHMENT 3
2Ordinance Summary
•Renewal of US Bank Agreement
•Up to $2.5M over two years
•Line of credit with term options up to 10 years
•Same structure and terms as prior agreement
3Historyand Vision for Epic Loans
•On-bill financing started in 2013, was paused in 2017 and
restarted in 2018 with the Bloomberg Mayors Challenge
•Epic Loans vision is an “Evergreen” revolving loan fund
which:
•Supports residential energy upgrades for years to
come
•Scales to meet long-term efficiency objectives
•Removes financial barriers to energy upgrades with
attractive rates and terms
•Aligns capital commitments with retail loan terms
(e.g. term & rate parity)
•Minimizes the City and Utilities risk and
administrative effort
•Program has zero defaults to date
4Total Capital Stack Summary
Capital Type Provider Te rm Rate Am ount
Internal & Grant
Previously authorized Light &
Power reserves
Ongoing 0% $1,600,000
Bloomberg Philanthropies Grant 0% $688,350
Colorado Energy Office –Grant Grant 0% $200,000
Internal Subtotal $2,488,350
External Market
U.S. Bank 5 & 10 year 76% of
Prime (2.47%
Currently)
Up to $2,500,000
Colorado Energy Office –Loan 15 year 0% $800,000
Ve ctra Bank 15 year Fixed rate of interest
equal to 3.38% per
annum
Up to $2,500,000
External Subtotal $5,800,000
To tal $8,288,350
5Core Tenets and Guardrails of On-Bill Loans
Loan portfolio management
•Interest rate target: blended cost of capital, plus admin and risk premium
•Maintain 0.75% -1.00% buffer between blended source cost of capital and lending rates
•Parity in length of term borrowed vs. length of term loaned
Other considerations
•No negative impact on Light & Power planned future debt offerings
•Protect Utilities credit rating &bond coverage covenants
6Support from Council Committee and Boards
•On February 4, Council Finance Committee expressed support for the proposed
renewals
•On February 10, the Energy Board expressed support for the proposed renewals
For More Information, Visit
THANK YOU!
John Phelan,
jphelan@fcgov.com
QUESTIONS
-1-
ORDINANCE NO. 014, 2022
AN ORDINANCE OF THE CITY OF FORT COLLINS, COLORADO, ELECTRIC UTILITY
ENTERPRISE REPEALING ITS ORDINANCE NO. 012, 2022 AND AUTHORIZING A
LOAN AGREEMENT WITH U.S. BANK NATIONAL ASSOCIATION TO PROVIDE
FUNDING FOR THE EPIC LOAN PROGRAM
WHEREAS, the City of Fort Collins, Colorado (the “City”) is a duly organized
and existing home rule municipality of the State of Colorado, created and operating pursuant to
Article XX of the Constitution of the State of Colorado and the home rule charter of the City (the
“Charter”); and
WHEREAS, the members of the City Council of the City (the “Council”) have
been duly elected and qualified; and
WHEREAS, Section 19.3(b) of the Charter Article V (“Section 19.3(b)”) provides
that the Council may, by ordinance establish the City’s electric utility (the “Utility”) as an
enterprise of the City; and
WHEREAS, pursuant to Section 19.3(b), the Council has heretofore established
the Utility as an enterprise of the City (the “Enterprise”) in ordinances codified in Section 26-392
of the Code of the City of Fort Collins (the “Code”); and
WHEREAS, pursuant to Section 19.3(b) and Code Section 26-392, the Council
has authorized the Enterprise, by and through the Council, sitting as the board of the Enterprise
(the “Board”), to issue, by ordinance, revenue and refunding securities and other debt; and
WHEREAS, the City has established a program (the “Epic Program”) to assist
certain customers of the Utility in financing home energy efficiency and renewable energy
improvements by making loans to customers who are property owners (“Epic Loans”); and
WHEREAS, the Board has determined that in order to finance Epic Loans (the
“Project”), it is necessary and advisable and in the best interests of the Enterprise (i) to enter into
a loan agreement (the “Loan Agreement”) with U.S. Bank National Association(the “Bank”)
pursuant to which the Bank shall loan the Enterprise an amount of not to exceed $2,500,000 (the
“Loan”) for such purposes, and (ii) to issue a promissory note (the “Note”) to the Bank to
evidence the Enterprise’s repayment obligations under the Loan Agreement; and
WHEREAS, the Enterprise has previously incurred the following financial
obligations which are payable from and secured by a lien on the Net Pledged Revenues (as
defined in the Loan Agreement): its “City of Fort Collins, Colorado, Electric Utility Enterprise,
Tax-Exempt Revenue Bonds, Series 2018A” (the “2018A Bonds”), its “City of Fort Collins,
Colorado, Electric Utility Enterprise, Taxable Revenue Bonds, Series 2018B” (the “2018B
Bonds” and, together with the 2018A Bonds, the “2018 Bonds”), a Loan Agreement with U.S.
Bank National Association, dated December 17, 2019, as amended (the “2019 Loan
Agreement”), a Loan Agreement with ZB, N.A., DBA Vectra Bank Colorado, dated as of April
17, 2020 (the “2020 Loan Agreement”), and a Loan Agreement with the State of Colorado,
Colorado Energy Office, with a start date of April 20, 2020 (the “2020 State Loan Agreement,
-2-
and together with the 2018 Bonds, the 2019 Loan Agreement, and the 2020 Loan Agreement,
the “Prior Obligations”); and
WHEREAS, except for the Prior Obligations, neither the City nor the Enterprise
has pledged or hypothecated the Gross Pledged Revenues (as defined in the Loan Agreement) to
the payment of any bonds or for any other purpose, with the result that the Net Pledged Revenues
may now be pledged lawfully and irrevocably to the payment of the Loan which pledge will be
subordinate to the pledge of Net Pledged Revenues to the payment of the 2018 Bonds and on a
parity with the pledge of Net Pledged Revenues to the payment of the 2019 Loan Agreement, the
2020 Loan Agreement, and the 2020 State Loan Agreement; and
WHEREAS, pursuant to Code Section 26-392(a) , the Mayor of the City has been
appointed President of the Enterprise (the President”), the Mayor Pro Tem of the City has been
appointed Vice President of the Enterprise (the “Vice President”), the City Financial Officer has
been appointed Treasurer of the Enterprise (the “Treasurer”), and the City Clerk has been
appointed Secretary of the Enterprise (the “Secretary”) which appointments the Board hereby
reaffirms and ratifies for purposes of this Ordinance; and
WHEREAS, the Board adopted Ordinance No. 012, 2022 (“Ordinance No. 012”)
to authorize the Loan on April 5, 2022, but Ordinance No. 012 was not published after adoption
as required by the Charter; and
WHEREAS, it is necessary that the Board repeal Ordinance No. 012 and adopt
this Ordinance to authorize and approve the Loan again; and
WHEREAS, the Enterprise has taken no action on the Loan under Ordinance No.
012; and
WHEREAS, there are attached hereto the forms of the Loan Agreement and the
Note (jointly, “the “Financing Documents”); and
WHEREAS, pursuant to Section 11-57-205, Colorado Revised Statutes
(“C.R.S.”), the Enterprise desires to delegate to the President or the Treasurer the independent
power to make final determinations relating to the Financing Documents, subject to the
parameters contained in this Ordinance.
BE IT ORDAINED BY THE BOARD OF THE CITY OF FORT COLLINS,
COLORADO, ELECTRIC UTILITY ENTERPRISE AS FOLLOWS:
Section 1. Adoption of Recitals, Approvals, Authorizations, and
Amendments. The Board hereby adopts and incorporates herein by reference as operative
provisions of this Ordinance the recitals set forth above. The forms of the Financing Documents
in substantially the forms attached hereto as Exhibit “A” are incorporated herein by reference
and are hereby approved. The Enterprise shall enter into and perform its obligations under the
Financing Documents in the forms of such documents, with such changes as are not inconsistent
herewith and as are hereafter approved by the President or the Treasurer, including any changes
required to convert the loan to one or more Term Loans as described in t he Loan Agreement.
The President and Secretary are hereby authorized and directed to execute the Financing
-3-
Documents and to affix the seal of the Enterprise thereto, and further to execute and authenticate
such other documents or certificates as are deemed necessary or desirable in connection
therewith. The Financing Documents shall be executed in substantially the forms approved at
this meeting. The execution of any instrument or certificate or other document in connection
with the matters referred to herein by the President, the Secretary, the Treasurer, any member of
the Board, or by other appropriate officers of the Enterprise, shall be conclusive evidence of the
approval by the Enterprise of such instrument.
Section 2. Election to Apply the Supplemental Act. Section 11-57-204 of the
Supplemental Public Securities Act, constituting Title 11, Article 57, Part 2, C.R.S. (the
“Supplemental Act”) provides that a public entity, including the Enterprise, may elect in an act
of issuance to apply all or any of the provisions of the Supplemental Act. The Enterprise hereby
elects to apply all of the provisions of the Supplemental Act to the Financing Documents.
Section 3. Delegation. (a) Pursuant to Section 11-57-205 of the
Supplemental Act, the Board hereby delegates to the President or Treasurer, the independent
authority to make the following determinations relating to and contained in the Financing
Documents, subject to the restrictions contained in paragraph (b) of this Section 3:
(i) The interest rate on the Loan;
(ii) The principal amount of the Loan;
(iii) The amount of principal of the Loan maturing in any given year
and the final maturity of the Loan;
(iv) The dates on which the principal of and interest on the Loan are
paid; and
(v) The existence and amount of capitalized interest or reserve funds
for the Loan, if any.
(b) The delegation in this Section 3 shall be subject to the following
parameters and restrictions:
(i) The interest rate on the Loan shall not exceed 9.5%;
(ii) The principal amount of the Loan shall not exceed $2,500,000; and
(iii) The final maturity of the Loan shall not be later December 31,
2029.
Section 4. Conclusive Recital. Pursuant to Section 11-57-210 of the
Supplemental Act, the Financing Documents shall contain recitals that the Financing Documents
are issued pursuant to certain provisions of th e Supplemental Act. Such recital shall be
conclusive evidence of the validity and the regularity of the issuance of the Financing
Documents after their delivery for value.
Section 5. Pledge of Revenues. The creation, perfection, enforcement, and
priority of the pledge of revenues to secure or pay the Loan evidenced by the Financing
Documents provided herein shall be governed by Section 11-57-208 of the Supplemental Act
and this Ordinance. The amounts pledged to the payment of the Loan evidenced by the
Financing Documents shall immediately be subject to the lien of such pledge without any
-4-
physical delivery, filing, or further act. The lien of such pledge shall have the priority described
in the Financing Documents. The lien of such pledge shall be valid, binding, and enforceable as
against all persons having claims of any kind in tort, contract, or otherwise against the Enterprise
irrespective of whether such persons have notice of such liens.
Section 6. Limitation of Actions. Pursuant to Section 11-57-212 of the
Supplemental Act, no legal or equitable action brought with respect to any legislative acts or
proceedings in connection with the Financing Documents shall be commenced more than thirty
days after the issuance of the Financing Documents.
Section 7. Limited Obligation; Special Obligation. The Loan evidenced by
the Financing Documents is payable solely from the Net Pledged Revenues and the Financing
Documents do not constitute a debt within the meaning of any constitutional, charter, or statutory
limitation or provision.
Section 8. No Recourse Against Officers and Agents. Pursuant to Section 11-
57-209 of the Supplemental Act, if a member of the Board, or any officer or agent of the
Enterprise acts in good faith, no civil recourse shall be available against such member, officer, or
agent for payment of the principal of or interest on the Loan. Such recourse shall not be
available either directly or indirectly through the Board or the Enterprise, or otherwise, whether
by virtue of any constitution, statute, rule of law, enforcement of penalty, or otherwise. By the
acceptance of the Financing Document and as a part of the consideration for making the Loan,
the Bank specifically waives any such recourse.
Section 9. Authorized Persons. Pursuant to the Loan Agreement, the
President and the Treasurer are hereby designated as the Authorized Persons (as defined in the
Loan Agreement) for the purpose of performing any act or executing any document relating to
the Loan, the Enterprise, or the Financing Documents. A copy of this Ordinance shall be
furnished to the Bank as evidence of such designation. The President may designate additional
authorized Persons.
Section 10. Direction to Take Authorizing Action. The appropriate officers of
the Enterprise and members of the Board are hereby authorized and directed to take all other
actions necessary or appropriate to effectuate the provisions of this Ordinance, including but not
limited to such certificates and affidavits as may reasonably be required by the Bank.
Section 11. Ratification and Approval of Prior Actions. All actions heretofore
taken by the officers of the Enterprise and members of the Board, not inconsistent with the
provisions of this Ordinance, relating to the Financing Documents, or actions to be taken in
respect thereof, are hereby ratified, approved, and confirmed.
Section 12. Severability. If any section, paragraph, clause, or provision of this
Ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or
unenforceability of such section, paragraph, clause, or provision shall not affect any of the
remaining provisions of this Ordinance, the intent being that the same are severable.
-5-
Section 13. Repealer. Ordinance No. 012 is hereby repealed and all other
orders, resolutions, bylaws, ordinances or regulations of the Enterprise, or parts thereof,
inconsistent with this Ordinance are hereby repealed to the extent only of such inconsistency.
Section 14. Ordinance Irrepealable. After the Financing Documents are
executed and delivered, this Ordinance shall constitute an irrevocable contract between the
Enterprise and the Bank and shall be and remain irrepealable until the Loan and the interest
thereon, as applicable, shall have been fully paid, satisfied, and discharged. No provisions of any
constitution, statute, charter, ordinance, resolution or other measure enacted after the Financing
Documents are executed and delivered shall in any manner be construed as impairing the
obligations of the Enterprise to keep and perform the covenants contained in this Ordinance.
Section 15. Disposition. A true copy of this Ordinance, as adopted by the
Board, shall be numbered and recorded on the official records of the Board and its adoption and
publication shall be authenticated by the signatures of the President and the Secretary, and by a
certificate of the publisher.
Section 16. Effective Date. This Ordinance shall take effect on the tenth day
following its final passage.
Introduced, considered favorably on first reading and ordered published this April
19, 2022, and to be presented for final passage on May 3, 2022.
CITY OF FORT COLLINS, COLORADO,
ELECTRIC UTILITY ENTERPRISE
By:________________________________
President
(ENTERPRISE SEAL)
ATTEST:
_________________________________
Secretary
-6-
Passed and adopted on final reading this 3rd day of May, 2022.
CITY OF FORT COLLINS, COLORADO
ELECTRIC UTILITY ENTERPRISE
By:________________________________
President
(ENTERPRISE SEAL)
ATTEST:
_________________________________
Secretary
LOAN AGREEMENT
by and between
CITY OF FORT COLLINS, COLORADO, ELECTRIC UTILITY ENTERPRISE
AND
U.S. BANK NATIONAL ASSOCIATION
Relating to:
Not to exceed $2,500,000 2022 Taxable Subordinate Lien Revenue Note
Dated as of [closing date], 2022
EXHIBIT A
TABLE OF CONTENTS
Page
i
ARTICLE I DEFINITIONS ............................................................................................................2
ARTICLE II LOAN .........................................................................................................................8
Section 2.01. Loan. ..................................................................................................................8
Section 2.02. Interest Rate; Interest Payments; Principal Payments. ......................................9
Section 2.03. Costs, Expenses and Taxes ..............................................................................11
Section 2.04. Pledge ...............................................................................................................11
Section 2.05. Conditions to Closing ......................................................................................11
Section 2.06. Procedure for Requesting and Funding Advances. ..........................................13
Section 2.07. Conversion to Term Loan ................................................................................14
ARTICLE III FUNDS AND ACCOUNTS ...................................................................................14
Section 3.01. Light and Power Fund ......................................................................................14
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE ENTERPRISE ...............15
Section 4.01. Due Organization .............................................................................................15
Section 4.02. Power and Authorization .................................................................................15
Section 4.03. No Legal Bar ....................................................................................................15
Section 4.04. Consents ...........................................................................................................15
Section 4.05. Litigation ..........................................................................................................15
Section 4.06. Enforceability ...................................................................................................16
Section 4.07. Changes in Law................................................................................................16
Section 4.08. Financial Information and Statements .............................................................16
Section 4.09. Accuracy of Information ..................................................................................16
Section 4.10. Financing Documents ......................................................................................16
Section 4.11. Regulations U and X ........................................................................................16
Section 4.12. Default, Etc ......................................................................................................16
Section 4.13. Sovereign Immunity.........................................................................................17
Section 4.14. No Filings.........................................................................................................17
Section 4.15. Outstanding Debt .............................................................................................17
ARTICLE V COVENANTS OF THE ENTERPRISE ..................................................................17
Section 5.01. Performance of Covenants, Authority .............................................................17
Section 5.02. Contractual Obligations ...................................................................................17
Section 5.03. Further Assurances...........................................................................................17
Section 5.04. Conditions Precedent .......................................................................................18
Section 5.05. Rules, Regulations and Other Details. .............................................................18
Section 5.06. Payment of Governmental Charges .................................................................18
Section 5.07. Protection of Security ......................................................................................18
Section 5.08. Prompt Payment ...............................................................................................19
EXHIBIT A
ii
Section 5.09. Use of Funds and Accounts .............................................................................19
Section 5.10. Other Liens.......................................................................................................19
Section 5.11. Reasonable and Adequate Charges ..................................................................19
Section 5.12. Adequacy and Applicability of Charges ..........................................................19
Section 5.13. Limitations Upon Free Service ........................................................................19
Section 5.14. Collection of Charges ......................................................................................20
Section 5.15. Maintenance of Records ..................................................................................20
Section 5.16. Accounting Principles ......................................................................................20
Section 5.17. Laws, Permits and Obligations ........................................................................20
Section 5.18. Bonding and Insurance ....................................................................................20
Section 5.19. Other Liabilities ...............................................................................................20
Section 5.20. Proper Books and Records ...............................................................................20
Section 5.21. Reporting Requirements. .................................................................................21
Section 5.22. Visitation and Examination..............................................................................21
Section 5.23. Additional Debt ................................................................................................21
ARTICLE VI INVESTMENTS .....................................................................................................22
Section 6.01. Permitted Investments Only .............................................................................22
ARTICLE VII EVENTS OF DEFAULT AND REMEDIES ........................................................22
Section 7.01. Events of Default .............................................................................................22
Section 7.02. Remedies ..........................................................................................................23
Section 7.03. Notice to Bank of Default ................................................................................23
Section 7.04. Additional Bank Rights....................................................................................24
Section 7.05. Delay or Omission No Waiver .........................................................................24
Section 7.06. No Waiver of One Default to Affect Another; All Remedies Cumulative ......24
Section 7.07. Other Remedies ................................................................................................24
ARTICLE VIII MISCELLANEOUS ............................................................................................24
Section 8.01. Loan Agreement and Relationship to Other Documents .................................24
Section 8.02. Assignments, Participations, etc. by the Bank .................................................24
Section 8.03. Notices .............................................................................................................24
Section 8.04. Payments ..........................................................................................................25
Section 8.05. Applicable Law and Jurisdiction; Interpretation; Severability ........................25
Section 8.06. Copies; Entire Agreement; Modification .........................................................25
Section 8.07. Waiver of Jury Trial .........................................................................................26
Section 8.08. Attachments .....................................................................................................26
Section 8.09. No Recourse Against Officers and Agents ......................................................26
Section 8.10. Conclusive Recital ...........................................................................................26
Section 8.11. Limitation of Actions .......................................................................................26
Section 8.12. Pledge of Revenues ..........................................................................................26
Section 8.13. No Liability ......................................................................................................27
Section 8.14. No Waiver; Modifications in Writing ..............................................................27
Section 8.15. Payment on Non-Business Days ......................................................................27
EXHIBIT A
iii
Section 8.16. Execution in Counterparts; Electronic Storage ................................................27
Section 8.17. Severability ......................................................................................................28
Section 8.18. Headings ..........................................................................................................28
Section 8.19. Waiver of Rules of Construction .....................................................................28
Section 8.20. Integration ........................................................................................................28
Section 8.21. Termination of Agreement ...............................................................................28
EXHIBIT A FORM OF 2022 NOTE ................................................................................ A-1
EXHIBIT B FORM OF ADVANCE REQUEST...............................................................B-1
EXHIBIT C FORM OF CONVERSION NOTICE ............................................................C-1
EXHIBIT A
LOAN AGREEMENT
THIS LOAN AGREEMENT (this “Agreement”) is made and entered into as of [closing
date], 2022, by and between CITY OF FORT COLLINS, COLORADO, ELECTRIC
UTILITY ENTERPRISE, an enterprise established and existing pursuant to the home rule
charter of the City of Fort Collins, Colorado (the “Enterprise”), and U.S. BANK NATIONAL
ASSOCIATION, a national banking association, in its capacity as lender (the “Bank”).
W I T N E S S E T H :
WHEREAS, the City of Fort Collins, Colorado (the “City”) is a duly organized and existing
home rule municipality of the State of Colorado, created and operating pursuant to Article XX of
the Constitution of the State of Colorado and the home rule charter of the City (the “Charter”); and
WHEREAS, the members of the City Council of the City (the “Council”) h ave been duly
elected and qualified; and
WHEREAS, Section 19.3(b) of the Charter Article V (“Section 19.3(b)”) provides that the
Council may, by ordinance establish the City’s electric utility (the “Utility”) as an enterprise of the
City; and
WHEREAS, pursuant to Section 19.3(b), the Council has heretofore established the Utility
as an enterprise of the City (the “Enterprise”) in ordinances codified in Section 26-392 of the Code
of the City of Fort Collins (“Section 26-392”); and
WHEREAS, pursuant to Section 19.3(b) and Section 26-392, the Council has authorized
the Enterprise, by and through the Council, sitting as the board of the Enterprise (the “Board”), to
issue revenue and refunding securities and other debt; and
WHEREAS, the Enterprise has established a program (the “Epic Program”) to assist certain
customers of the Utility in financing home energy efficiency and renewable energy improvements
by making loans to customers who are property owners (“Epic Loans”); and
WHEREAS, the Board has determined that in order to finance Epic Loans (the “Project”),
it is necessary and advisable and in the best interests of the Enterprise (i) to enter into this
Agreement with the Bank pursuant to which the Bank shall loan the Enterprise an amount of not
to exceed $2,500,000 (the “Loan”) for such purposes, and (ii) to issue a promissory note (the
“Note”) to the Bank to evidence the Enterprise’s repayment obligations under this Agreement; and
WHEREAS, the Enterprise has previously incurred the following financial obligations
which are payable from and secured by a lien on the Net Pledged Revenues (as herein defined): its
“City of Fort Collins, Colorado, Electric Utility Enterprise, Tax-Exempt Revenue Bonds, Series
2018A” (the “2018A Bonds”), its “City of Fort Collins, Colorado, Electric Utility Enterprise,
Taxable Revenue Bonds, Series 2018B” (the “2018B Bonds” and, together with the 2018A Bonds,
the “2018 Bonds”), a Loan Agreement with U.S. Bank National Association, dated December 17,
2019, as amended (the “2019 Loan Agreement”), a Loan Agreement with ZB, N.A., DBA Vectra
Bank Colorado, dated as of April 17, 2020 (the “2020 Loan Agreement”), and a Loan Agreement
EXHIBIT A
2
with the State of Colorado, Colorado Energy Office, with a start date of April 20, 2020 (the “2020
State Loan Agreement, and together with the 2018 Bonds, the 2019 Loan Agreement, and the 2020
Loan Agreement, the “Prior Obligations”); and
WHEREAS, except for the Prior Obligations, neither the City nor the Enterprise has
pledged or hypothecated the Gross Net Pledged Revenues (as herein defined) to the payment of
any bonds or for any other purpose, with the result that the Net Pledged Revenues may now be
pledged lawfully and irrevocably to the payment of the Loan which pledge will be subordinate to
the pledge of Net Pledged Revenues to the payment of the 2018 Bonds and on a parity with the
2019 Loan Agreement, the 2020 Loan Agreement, and the 2020 State Loan Agreement; and
WHEREAS, the Bank is willing to enter into this Agreement and to make the Loan to the
Enterprise pursuant to the terms and conditions stated below; and
WHEREAS, the Loan shall be payable from and secured by the Net Pledged Revenues as
more fully set forth herein;
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the parties hereto agree as follows.
ARTICLE I
DEFINITIONS
Words and terms defined in the recitals hereof, as hereby supplemented and amended, shall
have the same meanings herein or therein assigned to them, unless the context or use indicates
another meaning or intent, and except to the extent amended by the definitions hereinafter set forth.
In addition, the following terms shall have the meanings set forth herein:
“2018 Bond Ordinance” means the ordinance of the Enterprise which provides for the
issuance and delivery of the 2018A Bonds and 2018B Bonds.
“2018A Bonds” means the Enterprise’s Tax-Exempt Revenue Bonds, Series 2018A.
“2018B Bonds” means the Enterprise’s Taxable Revenue Bonds, Series 2018B.
“2019 Loan Agreement” means the Loan Agreement with U.S. Bank National Association,
dated December 17, 2019, as amended
“2020 Loan Agreement” means the Loan Agreement with ZB, N.A., DBA Vectra Bank
Colorado, dated as of April 17, 2020.
“2022 Note” or “Note” means the City of Fort Collins, Colorado, Electric Utility
Enterprise not to exceed $2,500,000 2022 Taxable Subordinate Lien Revenue Note evidencing the
Loan from the Enterprise, as maker, to the Bank, as payee.
“2020 State Loan Agreement” means the Loan Agreement with the State of Colorado,
Colorado Energy Office, with a start date of April 20, 2020.
EXHIBIT A
3
“Advance” means a disbursement of proceeds of the Unfunded Portion of the Loan
pursuant to the terms hereof.
“Advance Maturity Date” means the second anniversary of the Closing Date.
“Advance Period” means the period commencing on the date of the Closing Date and
terminating on the second anniversary of the Closing Date unless terminated or extended as
provided herein.
“Advance Termination Date” means the earlier to occur of (a) the Full Funding Date; (b)
the date which is the last day of the Advance Period or (c) a date determined by the Enterprise and
provided in writing to the Bank.
“Authorized Person” means the President of the Enterprise or the Treasurer of the
Enterprise and also means any other individual authorized by the President to act as an Authorized
Person hereunder.
“Authorizing Ordinance” means the Ordinance adopted by the Board on [ordinance date],
2022, authorizing the Enterprise to finance the Project, enter into the Loan and execute and deliver
the Note, this Agreement, and the other Financing Documents.
“Bank” means U.S. Bank National Association, a national banking association, in its
capacity as lender of the Loan.
“Business Day” means any day of the week on which the Bank is conducting its banking
operations nationally and on which day the Bank’s offices are open for business in Denver,
Colorado.
“Capital Improvements” means the acquisition of land, easements, facilities, and
equipment (other than ordinary repairs and replacements), and those property improvements or
any combination of property improvements which will constitute enlargements, extensions or
betterments to the System and will be incorporated into the System.
“Closing” means the date of the execution and delivery of the Note, this Agreement, and
the other Financing Documents by the respective parties thereto.
“Closing Date” means date of the Closing for the Loan.
“Conversion Notice” means a notice of a conversion pursuant to Sections 2.07, which shall
be substantially in the form of Exhibit C.
“Cost of Funds” means the rate at which Bank would be able to borrow funds of
comparable amounts in the Money Markets for a period equal to the term of a Term Loan, adjusted
for any reserve requirement and any subsequent costs arising from a change in government
regulation; such rate rounded up to the nearest one-eighth percent.
“C.R.S.” means the Colorado Revised Statutes, as amended and supplemented as of the
date hereof.
EXHIBIT A
4
“Debt” means, without duplication, all of the following obligations of the Enterprise for
the payment of which the Enterprise has promised or is required to pay from the Net Pledged
Revenues: (a) borrowed money of any kind; (b) obligations evidenced by bonds, debentures, notes
or similar instruments; (c) obligations upon which interest charges are customarily paid;
(d) obligations arising from guarantees made by the Enterprise; (e) obligations as an account party
in respect of letters of credit and bankers’ acceptances or similar obligations issued in respect of
the Enterprise; and (f) obligations evidenced by any interest rate exchange agreement; provided
that notwithstanding the foregoing, the term “Debt” does not include obligations issued for any
purpose, the repayment of which is contingent upon the Enterprise’s annual determination to
appropriate moneys therefore.
“Default Interest Rate” means a rate per annum equal to the greater of the Interest Rate
plus 3% or the Maximum Rate.
“Electronic Notification” means telecopy, facsimile transmissions, email transmissions
or other similar electronic means of communication providing evidence of transmission.
“Event of Default” has the meaning set forth in Section 7.01 hereof.
“Financing Documents” means this Agreement, the Note, the Authorizing Ordinance, and
any other document or instrument required or stated to be delivered hereunder or thereunder, all
in form and substance satisfactory to the Bank.
“Fiscal Year” means the 12 months commencing January 1 of any year and ending
December 31 of such year.
“Full Funding Date” means the date on which, if at all, the aggregate amount of all
Advances equals the Maximum Advance Amount.
“Gross Pledged Revenues” means all rates, fees, charges and revenues derived directly or
indirectly by the City from the operation and use of and otherwise pertaining to the System, or any
part thereof, whether resulting from Capital Improvements or otherwise, and includes all rates,
fees, charges and revenues received by the City from the System, including without limitation:
(i) All rates, fees and other charges for the use of the System, or for any service
rendered by the City or the Enterprise in the operation thereof, directly or indirectly, the availability
of any such service, or the sale or other disposal of any commodities derived therefrom, including,
without limitation, connection charges, but:
(a) Excluding any moneys borrowed and used for the acquisition of Capital
Improvements or for the refunding of securities, and all income or other gain from any investment
of such borrowed moneys; and
(b) Excluding any moneys received as grants, appropriations or gifts from the Federal
Government, the State, or other sources, the use of which is limited by the grantor or donor to the
construction of Capital Improvements, except to the extent any such moneys shall be received as
payments for the use of the System, services rendered thereby, the availability of any such service,
or the disposal of any commodities therefrom; and
EXHIBIT A
5
(ii) All income or other gain from any investment of Gross Pledged Revenues
(including without limitation the income or gain from any investment of all Net Pledged Revenues,
but excluding borrowed moneys and all income or other gain thereon in any project fund,
construction fund, reserve fund, or any escrow fund for any Parity Bonds payable from Net
Pledged Revenues heretofore or hereafter issued and excluding any unrealized gains or losses on
any investment of Gross Pledged Revenues); and
(iii) All income and revenues derived from the operation of any other utility or other
income-producing facilities added to the System and to which the pledge and lien herein provided
are lawfully extended by the Board or by the qualified electors of the City; and
(iv) All revenues which the Enterprise receives from the repayment of Epic Loans.
“Initial Advance” means the first Advance made by the Bank to the Enterprise pursuant to
Section 2.06 hereof.
“Interest Payment Date” means, for Advances, the first Business Day of each month,
commencing the first such day occurring after the Initial Advance, and continuing through and
including the Advance Maturity Date and, for Term Loans, June 1 and December 1, commencing
the first such day occurring after an Advance has been converted to a Term Loan continuing
through and including the Term Loan Maturity Date.
“Interest Rate” means for Advances, a variable rate of interest equal to 76% of the Prime
Rate, and for Term Loans, a fixed rate of interest determined on the date an Advance converts to
a Term Loan pursuant to Section 2.07 hereof.
“Light and Power Fund” means the special fund of that name heretofore created by the
City pursuant to Section 8-77 of the Code of the City of Fort Collins.
“Loan” means all Advances and Term Loans.
“Loan Amount” means, with respect to the Loan, a maximum amount of Two Million Five
Hundred Thousand and 00/100 U.S. Dollars ($2,500,000), or such lesser amount that has been
Advanced by the Bank from time to time in accordance with the terms and provisions of this
Agreement.
“Material Adverse Effect” means a material adverse effect on (a) the business, property,
liabilities (actual and contingent), operations or condition (financial or otherwise), results of
operations, or prospects of the Enterprise taken as a whole, (b) the ability of the Enterprise to
perform its obligation under this Agreement, or (c) the validity or enforceability of this Agreement
or the rights or remedies of the Bank under this Agreement.
“Maturity Date” means for Advances the Advance Maturity Date and for Term Loans the
Term Loan Maturity Date.
“Maximum Advance Amount” means, with respect to the 2022 Note, $2,500,000.
“Maximum Rate” has the meaning set forth in Section 2.02(i) hereof.
EXHIBIT A
6
“Money Markets” refers to one or more wholesale funding markets available to and
selected by Bank, including negotiable certificates of deposit, commercial paper, Eurodollar
deposits, bank notes, federal funds, interest rate swaps or others. The Enterprise acknowledges that
Bank is under no obligation to actually purchase and/or match funds to determine the Interest Rate
for any Term Loan.
“Net Pledged Revenues” means the Gross Pledged Revenues remaining after the payment
of the Operation and Maintenance Expenses of the System.
“Non-Use Fee” has the meaning set forth in Section 2.01(d) hereof.
“Operation and Maintenance Expenses” means such reasonable and necessary current
expenses of the City, paid or accrued, of operating, maintaining and repairing the System
including, except as limited by contract or otherwise limited by law, without limiting the generality
of the foregoing:
(a) All payments made to the Platte River Power Authority, a wholesale electricity
provider that acquires, constructs and operates generation capacity for the City, or its successor in
function;
(b) Engineering, auditing, legal and other overhead expenses directly related and
reasonably allocable to the administration, operation and maintenance of the System;
(c) Insurance and surety bond premiums appertaining to the System;
(d) The reasonable charges of any paying agent, registrar, transfer agent, depository or
escrow agent appertaining to the System or any bonds or other securities issued therefor;
(e) Annual payments to pension, retirement, health and hospitalization funds
appertaining to the System;
(f) Any taxes, assessments, franchise fees or other charges or payments in lieu of the
foregoing;
(g) Ordinary and current rentals of equipment or other property;
(h) Contractual services, professional services, salaries, administrative expenses, and
costs of labor appertaining to the System and the cost of materials and supplies used for current
operation of the System;
(i) The costs incurred in the billing and collection of all or any part o f the Gross
Pledged Revenues; and
(j) Any costs of utility services furnished to the System by the City or otherwise.
“Operation and Maintenance Expenses” does not include:
(a) Any allowance for depreciation;
EXHIBIT A
7
(b) Any costs of reconstruction, improvement, extensions, or betterments, including
without limitation any costs of Capital Improvements;
(c) Any accumulation of reserves for capital replacements;
(d) Any reserves for operation, maintenance, or repair of the System;
(e) Any allowance for the redemption of any bonds or other securities payable from
the Net Pledged Revenues or the payment of any interest thereon;
(f) Any liabilities incurred in the acquisition of any properties comprising the System;
and
(g) Any other ground of legal liability not based on contract.
“Parity Debt” means the 2019 Loan Agreement, the 2020 Loan Agreement, the 2020 State
Loan Agreement, and any other obligations of the Enterprise payable from and with a lien on the
Net Pledged Revenues on a parity basis with the 2022 Note.
“Permitted Investments” means any investment or deposit permissible under then
applicable law for governmental entities such as the Enterprise.
“Person” means an individual, a corporation, a partnership, an association, a joint venture,
a trust, an unincorporated organization or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
“Prime Rate” means a variable per annum rate of interest equal at all times to the rate of
interest established and quoted by the Bank as its “Prime Rate,” “Base Rate” or “Reference Rate,”
such rate to change contemporaneously with each change in such established and quoted rate,
provided that it is understood that the Prime Rate shall not necessarily be representative of the rate
of interest actually charged by the Bank on any loan or class of loans.
“Principal Payment Date” means for Advances the Advance Maturity Date and for Term
Loans, December 1 of each year, commencing on the first such date occurring after the Conversion
Date and continuing through and including the Term Loan Maturity Date.
“Senior Debt” means the 2018A Bonds, the 2018B Bonds, and any obligations of the
Enterprise payable from and with a lien on the Net Pledged Revenues on a basis superior to the
2022 Note.
“Supplemental Public Securities Act” means Title 11, Article 57, C.R.S.
“System” means the City’s electric distribution system that furnishes electricity and related
services and excludes the City’s broadband system using fiber-optic technology. The System
consists of all properties, real, personal, mixed and otherwise, now owned or hereafter acquired by
the City, through purchase, construction and otherwise, and used in connection with such system
of the City, and in any way pertaining thereto and consisting of all properties, real, personal, mixed
or otherwise, now owned or hereafter acquired by the City, whether situated within or without the
EXHIBIT A
8
City boundaries, used in connection with such system of the City, and in any way appertaining
thereto, including all present or future improvements, extensions, enlargements, betterments,
replacements or additions thereof or thereto and administrative facilities.
“Term Loan” has the meaning specified in Section 2.07.
“Term Loan Maturity Date” means the maturity date for a Term Loan as determined
pursuant to Section 2.07.
“Unfunded Portion” means, as of any date, an amount equal to the Maximum Advanc e
Amount, less the total amount of all Advances funded as of such date, less any reduction of the
Unfunded Portion made pursuant to Section 2.01 hereof.
ARTICLE II
LOAN
Section 2.01. Loan.
(a) Agreement to Make Loan. The Bank hereby agrees to extend the Loan to
the Enterprise in the maximum aggregate principal amount of $2,500,000 subject to the terms and
conditions of this Agreement. The Loan shall be evidenced by the 2022 Note, the form of which
is set forth in Exhibit A attached hereto.
(b) Advances. Subject to the terms and conditions of this Agreement, including
without limitation satisfaction of the conditions set forth in Section 2.06 hereof and upon delivery
to the Bank of an Advance Request in the form of Exhibit B hereto, the Bank hereby agrees to
make Advances to the Enterprise from time to time during the Advance Period in the aggregate
original principal amounts not to exceed $2,500,000 with respect to the Loan (as more particularly
defined in Article I hereof, the “Maximum Advance Amount”). On the Advance Termination
Date, the Unfunded Portion shall be reduced to zero and no further Advances will be made
hereunder.
(c) Note. The Loan shall be evidenced by the 2022 Note. On the Closing Date,
the Enterprise shall execute and deliver the 2022 Note payable to the Bank, in substantially the
form set forth in Exhibit A attached hereto. The Enterprise shall maintain a book for the
registration of ownership of the 2022 Note. Upon any transfer of the 2022 Note as provided herein,
such transfer shall be entered on such registration books of the Enterprise.
With respect to each Advance funded by the Bank from time to time hereunder, the
Bank shall maintain, in accordance with its usual practices, records evidencing the indebtedness
resulting from each such Advance and the amounts of principal and interest payable and paid from
time to time hereunder. In any legal action or proceeding in respect of any Advance or the Loan,
the entries made in such records shall be conclusive evidence (absent manifest error) of the
existence and amounts of the obligations therein recorded. The Note shall evidence the obligation
of the Enterprise to pay the Loan and shall evidence the obligation of the Enterprise to pay the
principal amount of each Advance funded by the Bank hereunder, as such amounts are outstanding
from time to time, and accrued interest
EXHIBIT A
9
(d) Non-Use Fees The Enterprise shall pay to the Bank a nonrefundable fee
(the “Non-Use Fee”), which shall be in the amount of 0.30% of the weighted average balance of
the Unfunded Portion from the Closing Date to the Advance Termination Date. The Non-Use Fee
shall be calculated and paid on the Advance Termination Date.
(e) Application of Loan Proceeds. The Enterprise shall apply the proceeds of
each Advance to pay the costs of the Project.
(f) Special Obligations. All amounts due under this Agreement or the 2022
Note shall be payable and collectible solely out of the Net Pledged Revenues, which revenues are
hereby so pledged which pledge is in all respects subordinate to the pledge and lien thereon of the
Senior Debt at any time outstanding. The Bank may not look to any general or other fund for the
payment of such amounts; this Agreement and the 2022 Note shall not constitute a debt or
indebtedness within the meaning of any constitutional, charter, or statutory provision or limitation;
and this Agreement and the 2022 Note shall not be considered or held to be general obligations of
the Enterprise or the City but shall constitute special obligations of the Enterprise. No statutory or
constitutional provision enacted after the execution and delivery of this Agreement or the 2022
Note shall in any manner be construed as limiting or impairing the obligation of the Enterprise to
comply with the provisions of this Agreement or the 2022 Note. None of the covenants,
agreements, representations and warranties contained herein or in the 2022 Note shall ever impose
or shall be construed as imposing any liability, obligation or charge against the Enterprise or the
City (except the Net Pledged Revenues and the special funds pledged therefor), or against its
general credit, or as payable out of its general fund or out of any funds derived from taxation or
out of any other revenue source (other than those pledged therefor). The payment of the amounts
due under this Agreement or the 2022 Note is not secured by an encumbrance, mortgage or other
pledge of property of the City or the Enterprise, except for the Net Pledged Revenues. No property
of the City or the Enterprise, subject to such exception, shall be liable to be forfeited or taken in
payment of such amounts.
Section 2.02. Interest Rate; Interest Payments; Principal Payments.
(a) Interest Rate. The unpaid principal balance of the Loan will bear interest
at the Interest Rate. All interest due and payable under this Agreement shall be calculated on the
basis of a 360-day year of twelve 30-day months. Interest payments on the Loan shall be due on
each Interest Payment Date and on the Maturity Date.
(b) Default Interest Rate. Immediately upon the occurrence of an Event of
Default or upon the Maturity Date, interest shall begin to accrue on all principal amounts owing
on the Loan at the Default Interest Rate for so long as such Event of Default continues and remains
uncured or, if after the Maturity Date, for so long as amounts due on the Loan remain unpaid.
(c) Principal Payments. Repayment of principal amounts owing under the
Loan shall occur on each Principal Payment Date.
(d) Prepayment. The Loan may be prepaid, in whole or in part, at the option
of the Enterprise, at a prepayment price equal to the principal amount so prepaid, plus accrued
EXHIBIT A
10
interest to the prepayment date, with no prepayment fee. Any prepayment under this paragraph
shall only be made after the Enterprise gives two Business Days written notice to the Bank.
(e) Obligations Unconditional. The Enterprise’s obligation to repay the Loan
hereunder and all of its other obligations under this Agreement shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment
which the Enterprise may have against the Bank or any other Person, including, without limitation,
any defense based on the failure of any nonapplication or misapplication of the proceeds of the
Loan hereunder, and irrespective of the legality, validity, regularity or enforceability of all or any
of the Financing Documents, and notwithstanding any amendment or waiver of (other than an
amendment or waiver signed by the Bank explicitly reciting the release or discharge of any such
obligation), or any consent to, or departure from, all or any of the Financing Documents or any
exchange, release, or nonperfection of any collateral securing the obligations of the Enterprise
hereunder and any other circumstances or happening whatsoever, whether or not similar to any of
the foregoing; provided, however, that nothing contained in this Section 2.02(e) shall abrogate or
otherwise affect the rights of the Enterprise pursuant to Section 8.05 hereof.
(f) Waivers, Etc. To the full extent permitted by law: (i) the Enterprise hereby
waives (A) presentment, demand, notice of demand, protest, notice of protest, notice of dishonor
and notice of nonpayment; (B) to the extent the Bank is not in default hereunder, the right, if any,
to the benefit of, or to direct application of, any security hypothecated to the Bank until all
obligations of the Enterprise to the Bank hereunder, howsoever arising, have been paid; (C) the
right to require the Bank to proceed against the Enterprise hereunder, or against any Person under
any guaranty or similar arrangement, or under any agreement between the Bank and any Person or
to pursue any other remedy in the Bank’s power; and (D) any defense arising out of the election
by the Bank to foreclose on any security by one or more non-judicial or judicial sales; (ii) the Bank
may exercise any other right or remedy, even though any such election operates to impair or
extinguish the Enterprise’s right to repayment from, or any other right or remedy it may have
against, any Person, or any security; and (iii) the Enterprise agrees that the Bank may proceed
against the Enterprise or any Person directly and independently of any other, and that any
forbearance, change of rate of interest, or acceptance, release or substitution of any security,
guaranty, or loan or change of any term or condition thereunder or under any Financing Document
(other than by mutual agreement between the Enterprise and the Bank) shall not in any way affect
the liability of the Enterprise hereunder.
(g) Manner of Payments. All interest, fees, and other payments to be made
hereunder by or on behalf of the Enterprise to the Bank shall be made, and shall not be considered
made until received, in United States dollars in immediately available funds. The Enterprise shall
make each payment hereunder in the manner and at the time necessary so that each such payment
is received by the Bank not later than 12:00 p.m., Colorado time, on the day when due in lawful
money of the United States of America in immediately available funds. Any payment received
after 12:00 p.m., Colorado time, shall be deemed made on the next succeeding Business Day. All
payments made hereunder by or on behalf of the Enterprise to the Bank shall be applied to such
amounts due hereunder and under the Financing Documents in the following order: first, to unpaid
Non-Use Fees, second, to accrued but unpaid interest, third, to principal and, fourth, to any other
amounts due hereunder.
EXHIBIT A
11
(h) Default Interest Rate; Calculation of Interest and Fees. All interest and
fees due and payable under this Agreement shall be calculated on the basis of a 360-day year of
twelve 30-day months. Any sum due to the Bank and not paid when due and any sum due to the
Bank upon the occurrence or during the continuance of any Event of Default hereunder shall bear
interest at the Default Interest Rate.
(i) Maximum Interest Rate. If the interest due and payable on any obligation
hereunder computed at the applicable rate as provided in Section 2.02 hereof is in excess of 9.5%
(the “Maximum Rate”), the difference between what would have been the interest payable on such
amounts had they accrued interest at the rate provided in Section 2.02 and the Maximum Rate (the
“Interest Differential”) shall remain an obligation of the Enterprise. Notwithstanding anything
herein or in the Financing Documents to the contrary, if at any time there is an Interest Differential
owed to the Bank, any reduction in interest rate that would result from the application of the
Maximum Rate to the Default Interest Rate, shall not reduce the rate of interest below the
Maximum Rate until the total amount due has been paid to the Bank as if the applicable rate
computed as provided in Section 2.02 hereof had at all times been utilized.
Section 2.03. Costs, Expenses and Taxes. The Enterprise agrees to pay all reasonable
costs and expenses actually incurred by the Bank in connection with (a) the preparation, execution
and delivery of this Agreement or any other documents, including the other Financing Documents,
which may be delivered by any party in connection with this Agreement and the other Financing
Document, and (b) the filing, recording, administration (other than normal, routine
administration), enforcement, transfer, amendment, maintenance, renewal or cancellation of this
Agreement and all amendments or modifications thereto (or supplements hereto), including,
without limitation, the reasonable fees and out-of-pocket expenses of counsel for the Bank and
independent public accountants and other outside experts retained by the Bank in connection with
any of the foregoing; and. In addition, the Enterprise agrees to pay promptly all reasonable costs
and expenses of the Bank, including, without limitation, the actual, reasonable fees and expenses
of external counsel, for (i) any and all amounts which the Bank has paid relative to the Bank’s
curing of any Event of Default under this Agreement or any of the Financing Documents; (ii) the
enforcement of this Agreement or any of the Financing Documents; or (iii) any action or
proceeding relating to a court order, injunction, or other process or decree restraining or seeking
to restrain the Bank from paying any amount hereunder. Without prejudice to the survival of any
other agreement of the Enterprise hereunder, the agreements and obligations contained in this
Section 2.03 shall survive the payment in full of all amounts owing to the Bank hereunder.
Section 2.04. Pledge. The Enterprise hereby pledges, assigns and grants to the Bank a
lien in the Net Pledged Revenues, which is subordinate to the lien which is pledged to secure the
payment of Senior Debt but on a pari pasu basis with the lien to secure payment of the Parity Debt,
to secure its obligations to the Bank hereunder and under the other Financing Documents. The
lien of the Bank on the Net Pledged Revenues hereunder shall be subject to no other liens except
those liens granted on the Net Pledged Revenues to any Senior Debt heretofore or hereafter issued
in accordance with the terms hereof and the Subordinate Debt. The Enterprise represents and
warrants that, except for the Senior Debt, the Net Pledged Revenues is not and shall not be subject
to any other lien or encumbrance without the prior written consent of the Bank except as otherwise
permitted pursuant to this Agreement.
EXHIBIT A
12
Section 2.05. Conditions to Closing. The Closing on the Loan is conditioned upon the
satisfaction of each of the following:
(a) all Financing Documents and other instruments applicable to the Loan are
in form and content satisfactory to the Bank and have been duly executed and delivered in form
and substance satisfactory to the Bank and shall have not been modified, amended or rescinded,
shall be in full force and effect on and as of the Closing Date and executed original or certified
copies of each thereof shall have been delivered to the Bank;
(b) the Bank has received a certified copy of the Authorizing Ordinance of the
Enterprise, which shall be in form and content satisfactory to the Bank and authorize the Enterprise
to finance the Project, obtain the Loan and perform all acts contemplated by this Agreement and
all other Financing Documents; and a certified copy of all other ordinances, resolutions and
proceedings taken by the Enterprise authorizing the Enterprise to finance the Project, obtain the
Loan and the execution, delivery and performance of this Agreement and the other Financing
Documents and the transactions contemplated hereunder and thereunder, together with such other
certifications as to the specimen signatures of the officers of the Enterprise authorized to sign this
Agreement and the other Financing Documents to be delivered by the Enterprise hereunder and as
to other matters of fact as shall reasonably be requested by the Bank;
(c) the Enterprise has provided a certificate certifying that on the Closing Date
each representation and warranty on the part of the Enterprise contained in this Agreement and in
any other Financing Document is true and correct and no Event of Default, or event which would,
with the passage of time or the giving of notice, constitute an Event of Default, has occurred and
is continuing and no default exists under any other Financing Documents, or under any other
agreements by and between the Enterprise and the Bank and certifying as to such other matters as
the Bank might reasonably request;
(d) the Enterprise has provided a certificate certifying that the only Senior Debt
outstanding as of the Closing Date is the 2018A Bonds and the 2018B Bonds and that the only
Parity Debt outstanding as of the Closing Date is the 2019 Loan Agreement, the 2020 Loan
Agreement, and the 2020 State Loan Agreement;
(e) the Bank shall have received the opinion of Butler Snow LLP to the effect
that (i) the obligation of the Enterprise to pay the principal of and interest on the Loan constitutes
a valid and binding special obligation of the Enterprise payable solely from the Net Pledged
Revenues with a lien on the Net Pledged Revenues which is subordinate to the lien thereon of the
Senior Debt, and (ii) this Agreement and the Note are valid and binding obligations of the
Enterprise, enforceable against the Enterprise in accordance with their respective terms, except as
such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, and
other similar laws affecting creditors’ rights generally, and by equitable principles, whether
considered at law or in equity;
(f) all proceedings taken in connection with the transactions contemplated by
this Agreement, and all instruments, authorizations and other documents applicable thereto, are
satisfactory to the Bank and its counsel;
EXHIBIT A
13
(g) no law, regulation, ruling or other action of the United States, the State of
Colorado or any political subdivision or authority therein or thereof shall be in effect or shall have
occurred, the effect of which would be to prevent the Enterprise from fulfilling its obligations
under this Agreement or the other Financing Documents;
(h) all Bank counsel fees and any other fees and expenses due and payable in
connection with the execution and delivery of this Agreement shall have been paid by the
Enterprise upon execution and delivery of this Agreement;
(i) the Bank shall have been provided with the opportunity to review all
pertinent financial information regarding the Enterprise, agreements, documents, and any other
material information relating to the Enterprise or the Net Pledged Revenues or any other
component of the collateral securing the obligations of the Enterprise hereunder;
(j) all information provided by the Enterprise to the Bank is accurate in all
respects;
(k) the Bank shall have received such other certificates, approvals, filings,
opinions and documents as shall be reasonably requested by the Bank;
(l) all other legal matters pertaining to the execution and delivery of this
Agreement and the other Financing Documents shall be reasonably satisfactory to the Bank.
Section 2.06. Procedure for Requesting and Funding Advances.
(a) Conditions to Funding Advances. No Advance shall be requested by the
Enterprise and the Bank shall have no obligation to honor an Advance Request except in
accordance with the provisions and upon fulfillment of the terms and conditions set forth in this
Agreement. The funding by the Bank of each Advance is conditioned upon the satisfaction of
each of the following, each of which shall be satisfactory in all respects to the Bank:
(i) Advance Frequency. Advance Requests may only be made during
the Advance Period and shall be submitted to the Bank no more than once in any calendar month,
unless permitted more frequently by the Bank. Advances shall be made in amounts of $75,000 or
more.
(ii) Representations and Warranties True; No Default. At the time any
Advance is to be made and as a result thereof, immediately thereafter, all representations and
warranties of the Enterprise set forth in Article IV are true and correct as though made on the date
of such Advance Request and on the date when such Advance is funded and no Event of Default
hereunder has occurred and is continuing and no litigation is then pending or threatened concerning
the Enterprise’s authority to pledge the Net Pledged Revenues as provided herein, and the
Enterprise shall deliver an executed certificate of an Authorized Person to such effect in connection
with each Advance in substantially the form of Exhibit B.
(iii) Payments Current. The Enterprise shall be current on all of its
obligations hereunder.
EXHIBIT A
14
(iv) Advance Request. The Bank shall have received an Advance
Request from the Enterprise, the form of which is attached hereto as Exhibit B (each, an “Advance
Request”), signed by the Authorized Person of the Enterprise and containing the calculation of the
amount of such Advance requested by the Enterprise.
(v) Amount of Advance. The amount of the requested Advance, when
combined with the sum of all prior Advances made hereunder shall not exceed the Maximum
Advance Amount for the Loan. From each Advance the Bank will transfer amounts as specified
in each Advance Request.
(vi) Material Adverse Changes. Since December 31, 2020, there has
been no change in the business, property, prospects, condition (financial or otherwise) or results
of operations of the Enterprise which could reasonably be expected to have a Material Adverse
Effect.
(vii) Other Conditions Precedent to Funding Each Advance. No
Advance shall be requested or made after the Advance Termination Date.
(b) Funding of Advances. Provided that the conditions set forth in Section
2.06(a) above are satisfied, within 2 days of receipt by the Bank of an Advance Request signed by
the Authorized Person, the Bank shall provide the amount of such Advance to the Enterprise at
such depository as the Enterprise may direct.
Section 2.07. Conversion to Term Loan. Provided that (i) no Event of Default shall
have occurred and be continuing (ii) all representations and certifications and agreements herein
are then true and correct, and (iii) the outstanding Senior Debt is rated in one of its four highest
rating categories by a national recognized organization which regularly rates obligations such as
the Senior Debt, the Enterprise may elect to convert all or a portion of the outstanding Advances
on or before the Advance Loan Maturity Date to one or more term loans, but not more than four
term loans (each a “Term Loan”) that shall be payable in full by no later than the 8th anniversary
of the Advance Loan Maturity Date. Such election shall be exercised by the Enterprise delivering
to the Bank a Conversion Notice, appropriately completed and signed by an Authorized Person, at
least three (3) Business Days prior to the Maturity Date. Each Term Loan shall be a fully
amortizing loan in approximately equal installments of principal and interest and shall mature on
the Term Loan Maturity Date specified in the Conversion Notice, which date shall be either the
3rd anniversary of the Advance Loan Maturity Date or the 8th anniversary of the Advance Loan
Maturity Date. Principal and interest on each Term Loan shall be payable on each Interest Payment
Date. The Interest Rate on a Term Loan shall be a fixed rate determined on the date an Advance
converts to a Term Loan and shall equal the Cost of Funds plus 1.65% for a Term Loan which
matures on the 3rd anniversary of the Advance Loan Maturity Date or the Cost of Funds plus
1.85% for a Term Loan which matures on the 8th anniversary of the Advance Loan Maturity Date.
The Enterprise and the Bank agree that the aggregate principal amount of all Advances which is
converted to a Term Loan shall be divided approximately equally between Term Loans which
mature on the 3rd anniversary of the Advance Loan Maturity Date and Term Loans which mature
on the 8th anniversary of the Advance Loan Maturity Date
EXHIBIT A
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ARTICLE III
FUNDS AND ACCOUNTS
Section 3.01. Light and Power Fund. So long as this Agreement is in effect, the entire
Gross Pledged Revenues, upon their receipt from time to time by the Enterprise, shall be set aside
and credited immediately to the Light and Power Fund. In each month, after making in full all
deposits or payments required in connection with the Senior Debt, the Enterprise shall pay to the
Bank from the Net Pledged Revenues remaining in the Light and Power Fund, the amounts due
under this Agreement and the Note.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE ENTERPRISE
While any obligations hereunder or under any of the other Financing Documents are unpaid
or outstanding, the Enterprise continuously represents and warrants to the Bank as follows:
Section 4.01. Due Organization. The Enterprise is an enterprise of the City duly
organized and validly existing under Charter and Enterprise Ordinances.
Section 4.02. Power and Authorization. The Enterprise has all requisite power and
authority to own and convey its properties and to carry on its business as now conducted and as
contemplated to be conducted under the Financing Documents; to execute, deliver and to perform
its obligations under this Agreement and the other Financing Documents; and to cause the
execution, delivery and performance of the Financing Documents.
Section 4.03. No Legal Bar. To the best of the Enterprise’s knowledge, the Enterprise is
not in violation of any of the provisions of the laws of the State of Colorado or the United States
of America or any of the provisions of any order of any court of the State of Colorado or the United
States of America which would affect its existence, or its powers referred to in the preceding
Section 4.02. The execution, delivery and performance by the Enterprise of this Agreement and
of the other Financing Documents (a) will not violate any provision of any applicable law or
regulation or of any order, writ, judgment or decree of any court, arbitrator or governmental
authority; (b) will not violate any provisions of any document constituting, regulating or otherwise
affecting the operations or activities of the Enterprise; and (c) will not violate any provision of,
constitute a default under, or result in the creation, imposition or foreclosure of any lien, mortgage,
pledge, charge, security interest or encumbrance of any kind other than liens created or imposed
by the Financing Documents, on any of the revenues or other assets of the Enterprise which could
have a material adverse effect on the assets, financial condition, business or operations of the
Enterprise, on the Enterprise’s power to cause the Financing Documents to be executed and
delivered, or its ability to pay in full in a timely fashion the obligations of the Enterprise under this
Agreement or the other Financing Documents.
Section 4.04. Consents. The Enterprise has obtained all consents, permits, licenses and
approvals of, and has made all registrations and declarations with any governmental authority or
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regulatory body required for the execution, delivery and performance by the Enterprise of th is
Agreement and the other Financing Documents.
Section 4.05. Litigation. Except as disclosed in writing to the Bank, there is no action,
suit, inquiry or investigation or proceeding to which the Enterprise is a party, at law or in equity,
before or by any court, arbitrator, governmental or other board, body or official which is pending
or, to the best knowledge of the Enterprise, threatened in connection with any of the transactions
contemplated by this Agreement or the Financing Documents or against or affecting the assets of
the Enterprise, nor, to the best knowledge of the Enterprise, is there any basis therefor, wherein an
unfavorable decision, ruling or finding (a) would adversely affect the validity or enforceability of,
or the authority or ability of the Enterprise to perform its obligations under, the Financing
Documents; or (b) would, in the reasonable opinion of the Enterprise, have a materially adverse
effect on the ability of the Enterprise to conduct its business as presently conducted or as proposed
or contemplated to be conducted.
Section 4.06. Enforceability. This Agreement and each other Financing Document
constitutes the legal, valid and binding special obligation of the Enterprise, enforceable against the
Enterprise in accordance with its terms (except as such enforceability may be limited by
bankruptcy, moratorium or other similar laws affecting creditors’ rights generally and provided
that the application of equitable remedies is subject to the application of equitable principles).
Section 4.07. Changes in Law. To the best knowledge of the Enterprise, there is not
pending any change of law which, if enacted or adopted could have a material adverse effect on
the assets, financial condition, business or operations of the Enterprise, on the Enterprise’s power
to enter into this Agreement or the other Financing Documents or its ability to pay in full in a
timely fashion the obligations of the Enterprise under this Agreement or the other Financing
Documents.
Section 4.08. Financial Information and Statements. The financial statements and
other information previously provided to the Bank or provided to the Bank in the future are or will
be complete and accurate and prepared in accordance with generally accepted accounting
principles. There has been no material adverse change in the Enterprise’s financial condition since
such information was provided to the Bank.
Section 4.09. Accuracy of Information. All information, certificates or statements given
to the Bank pursuant to this Agreement and the other Financing Documents will be true and
complete when given.
Section 4.10. Financing Documents. Each representation and warranty of the Enterprise
contained in any Financing Document is true and correct as of the Closing Date.
Section 4.11. Regulations U and X. The Enterprise is not engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U or X issued by the Board of Governors of the Federal Reserve System); and no
proceeds of the Loan will be or have been used to extend credit to others for the purpose of
purchasing or carrying any margin stock.
EXHIBIT A
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Section 4.12. Default, Etc. The Enterprise is not in default in the performance,
observance, or fulfillment of any of the obligations, covenants or conditions contained in any
Financing Document or other ordinance, resolution, agreement or instrument to which it is a party
which would have a material adverse effect on the ability of the Enterprise to perform its
obligations hereunder or under the other Financing Documents, or which would affect the
enforceability hereof or thereof.
Section 4.13. Sovereign Immunity. The Enterprise represents that, under Section 24-10-
106, C.R.S., its governmental immunity is limited to claims for injury which lie in tort or could lie
in tort. Under existing law, the Enterprise is not entitled to raise the defense of sovereign immunity
in connection with any legal proceedings to enforce its contractual obligations under the Financing
Documents, or the transactions contemplated hereby or thereby including, without limitation, the
payment of the principal of and interest on the Note.
Section 4.14. No Filings. No filings, recordings, registrations or other actions are
necessary to create and perfect the pledges provided for herein; all obligations of the Enterprise
hereunder are secured by the lien and pledge provided for herein; and the liens and pledges
provided for herein constitute valid prior liens subject to no other liens.
Section 4.15. Outstanding Debt. Upon the execution and delivery of this Agreement,
except for the Financing Documents and the 2018A Bonds, the 2018B Bonds, the 2019 Loan
Agreement, the 2020 Loan Agreement, and the 2020 State Loan Agreement, the Enterprise will
have no other Debt outstanding payable from or secured by the Net Pledged Revenues or any
portion thereof. The Enterprise represents and warrants that it will incur additional Debt only in
accordance with the provisions of Section 5.23 of this Agreement.
ARTICLE V
COVENANTS OF THE ENTERPRISE
While any obligations hereunder or under any of the other Financing Documents are unpaid
or outstanding, the Enterprise continuously warrants and agrees as follows:
Section 5.01. Performance of Covenants, Authority. The Enterprise covenants that it
will faithfully perform and observe at all times any and all covenants, undertakings, stipulations,
and provisions contained in the Authorizing Ordinance, this Agreement, the Note, the other
Financing Documents and all its proceedings pertaining thereto as though such covenants,
undertakings, stipulations, and provisions were set forth in full herein (for the purpose of this
provision the Financing Documents shall be deemed to continue in full force and effect
notwithstanding any earlier termination thereof so long as any obligation of the Enterprise under
this Agreement shall be unpaid or unperformed). The Enterprise covenants that it is duly
authorized under the constitution and laws of the State of Colorado, including, particularly and
without limitation, the Charter and the Enterprise Ordinances, to obtain the Loan and to execute
and deliver the Note, this Agreement, and the other Financing Documents, and that all action on
its part for the execution and delivery of the Note, this Agreement, and the other Financing
Documents has been duly and effectively taken and will be duly taken as provided herein, and that
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the Loan, the Note, this Agreement, and the other Financing Documents are and will be valid and
enforceable obligations of the Enterprise according to the terms hereof and thereof.
Section 5.02. Contractual Obligations. The Enterprise shall perform all contractual
obligations undertaken by it under any agreements relating to the Loan, the Gross Pledged
Revenues, the Project, or the System, or any combination thereof.
Section 5.03. Further Assurances. At any and all times the Enterprise shall, so far as it
may be authorized by law, pass, make, do, execute, acknowledge, deliver and file or record all and
every such further instruments, acts, deeds, conveyances, assignments, transfers, other documents
and assurances as may be reasonably necessary or desirable for better assuring, conveying,
granting, assigning and confirming all and singular the rights, the Net Pledged Revenues and other
moneys and accounts hereby pledged or assigned, or intended so to be, or which the Enterprise
may hereafter become bound to pledge or to assign, or as may be reasonable and required to carry
out the purposes of this Agreement and to comply with any instrument of the Enterprise
amendatory thereof, or supplemental thereto. The Enterprise, acting by and through its officers,
or otherwise, shall at all times, to the extent permitted by law, defend, preserve and protect the
pledge of the Net Pledged Revenues and other moneys and accounts pledged hereunder and all the
rights of the Bank hereunder against all claims and demands of all Persons whomsoever.
Section 5.04. Conditions Precedent. Upon the date of the execution and delivery of this
Agreement, all conditions, acts and things required by the Federal or State Constitution, the
Charter, the Supplemental Act, the Enterprise Ordinances, or any other applicable law to exist, to
have happened and to have been performed precedent to the execution and delivery of this
Agreement shall exist, have happened, and have been performed; and the Bonds, together with all
other obligations of the Enterprise, shall not contravene any debt or other limitation prescribed by
the State Constitution.
Section 5.05. Rules, Regulations and Other Details. The Enterprise shall observe and
perform all of the terms and conditions contained in this Agreement, and shall comply with all
valid acts, rules, regulations, orders and directions of any legislative, executive, administrative or
judicial body applicable to the System, the Enterprise, except for any period during which the same
are being contested in good faith by proper legal proceedings.
Section 5.06. Payment of Governmental Charges. The Enterprise shall pay or cause to
be paid all taxes and assessments or other governmental charges, if any, lawfully levied or assessed
upon or in respect of the System, or upon any part thereof, or upon any portion of the Gross Pledged
Revenues, when the same shall become due, and shall duly observe and comply with all valid
requirements of any governmental authority relative to the System or any part thereof, except for
any period during which the same are being contested in good faith by proper legal proceedings.
The Enterprise shall not create or suffer to be created any lien upon the System, or any part thereof,
or upon the Gross Pledged Revenues, except the pledge and lien created by for Senior Debt and
Parity Debt and except as herein otherwise permitted. The Enterprise shall pay or cause to be
discharged or shall make adequate provision to satisfy and to discharge, within 60 days after the
same shall become payable, all lawful claims and demands for labor, materials, supplies or other
objects which, if unpaid, might by law become a lien upon the System, or any part thereof, or the
Gross Pledged Revenues; but nothing herein requires the Enterprise to pay or cause to be
EXHIBIT A
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discharged or to make provision for any such tax, assessment, lien or charge, so long as the validity
thereof is contested in good faith and by appropriate legal proceedings.
Section 5.07. Protection of Security. The Enterprise and its officers, agents and
employees shall not take any action in such manner or to such extent as might prejudice the security
for the payment of the amounts due under this Agreement or the Note. No contract shall be entered
into nor any other action taken by which the rights of the Bank might be prejudicially and
materially impaired or diminished.
Section 5.08. Prompt Payment . The Enterprise shall promptly pay the amounts due
under this Agreement or the Note at the places, on the dates and in the manner specified herein
and in the Agreement or the Note according to the true intent and meaning hereof.
Section 5.09. Use of Funds and Accounts. The funds and accounts described herein
shall be used solely and only for the purposes described herein.
Section 5.10. Other Liens. Other than the 2018A Bonds, the 2018B Bonds, the 2019
Loan Agreement, the 2020 Loan Agreement, and the 2020 State Loan Agreement, there are no
liens or encumbrances of any nature whatsoever on or against the System, or any part thereof, or
on or against the Net Pledged Revenues on a parity with or superior to the lien thereon of this
Agreement and the Note.
Section 5.11. Reasonable and Adequate Charges. The fees, rates and other charges due
to the Enterprise for the use of or otherwise pertaining to and services rendered by the System to
the Enterprise, to its inhabitants and to all other users within and without the boundaries of the
Enterprise shall be reasonable and just, taking into account and consideration public interests and
needs, the cost and value of the System, the Operation and Maintenance Expenses thereof, and the
amounts necessary to meet the debt service requirements of all Senior Debt, Parity Debt, and any
other securities payable from the Net Pledged Revenues, including, without limitation, reserves
and any replacement accounts therefor.
Section 5.12. Adequacy and Applicability of Charges. There shall be charged against
users of service pertaining to and users of the System, except as provided by Section 5.13 hereof,
such fees, rates and other charges so that the Gross Pledged Revenues shall be adequate to meet
the requirements of this Section. Such charges pertaining to the System shall be at least sufficient
so that the Gross Pledged Revenues annually are sufficient to pay in each Fiscal Year:
(a) Operation and Maintenance Expenses. amount equal to the annual
Operation and Maintenance Expenses for such Fiscal Year that are payable from the Gross Pledged
Revenues
(b) Principal and Interest An amount equal to 125% of the debt service
requirements on the Senior Debt and any Parity Debt then outstanding in that Fiscal Year
(excluding the reserves therefor), and
(c) Deficiencies. All sums, if any, due and owing to meet then existing
deficiencies pertaining to any fund or account relating to the Gross Pledged Revenues or any
securities payable therefrom.
EXHIBIT A
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Section 5.13. Limitations Upon Free Service. No free service or facilities shall be
furnished by the System, except that the City shall not be required to pay for any use by the City
of any facilities of the System for municipal purposes. If the City chooses, in its sole discretion,
to pay for its use of the System, all the income so derived from the City shall be deemed to be
income derived from the operation of the System, to be used and to be accounted for in the same
manner as any other income derived from the operation of the System.
Section 5.14. Collection of Charges. The Enterprise shall cause all fees, rates and other
charges pertaining to the System to be collected as soon as is reasonable, shall reasonably prescribe
and enforce rules and regulations or impose contractual obligations for the payment of such
charges, and for the use of the System, and shall provide methods of collection and penalties, to
the end that the Gross Pledged Revenues shall be adequate to meet the requirements of this
Agreement and the Note
Section 5.15. Maintenance of Records. Proper books of record and account shall be kept
by the Enterprise, separate and apart from all other records and accounts.
Section 5.16. Accounting Principles. System records and accounts, and audits thereof,
shall be currently kept and made, as nearly as practicable, in accordance with the then generally
accepted accounting principles, methods and terminology followed and construed for utility
operations comparable to the System, except as may be otherwise provided herein or required by
applicable law or regulation or by contractual obligation existing on the execution and delivery of
this Agreement.
Section 5.17. Laws, Permits and Obligations. The Enterprise will comply in all
material respects with all applicable laws, rules, regulations, orders and directions of any
governmental authority and all agreements and obligations binding on the Enterprise,
noncompliance with which would have a material adverse effect on the Enterprise, its financial
condition, assets or ability to perform its obligations under the other Financing Documents;
provided that the Enterprise may in good faith contest such laws, rules, regulations, orders and
directions and the applicability thereof to the Enterprise to the extent that such action would not
be likely to have a material adverse effect on the Enterprise’s ability to perform its obligations
hereunder.
Section 5.18. Bonding and Insurance. The Enterprise shall carry general liability
coverage, workers’ compensation, public liability, and such other forms of insurance on insurable
Enterprise property upon the terms and conditions, and issued by recognized insurance companies,
as in the judgment of the Enterprise would ordinarily be carried by entities having similar
properties of equal value, such insurance being in such amounts as will protect the Enterprise and
its operations.
Section 5.19. Other Liabilities. The Enterprise shall pay and discharge, when due, all of
its liabilities, except when the payment thereof is being contested in good faith by appropriate
procedures which will avoid financial liability and with adequate reserves provided therefor.
Section 5.20. Proper Books and Records. The Enterprise shall keep or cause to be kept
adequate and proper records and books of account in which complete and correct entries shall be
EXHIBIT A
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made with respect to the Enterprise, the Net Pledged Revenues and all of the funds and accounts
established or maintained pursuant to any of the Financing Documents. The Enterprise shall
(a) maintain accounting records in accordance with generally recognized and accepted principles
of accounting consistently applied throughout the accounting periods involved; (b) provide the
Bank with such information concerning the business affairs and financial condition (including
insurance coverage) of Enterprise as the Bank may request; and (c) without request, provide the
Bank with the information set forth below.
Section 5.21. Reporting Requirements.
(a) The Enterprise shall notify the Bank promptly of all interim litigation or
administrative proceedings, threatened or pending, against the Enterprise which would, if
adversely determined, in the Enterprise’s reasonable opinion, have a material effect on the
Enterprise’s financial condition arising after the date hereof.
(b) The Enterprise shall provide the following to the Bank at the times and in
the manner provided below:
(i) as soon as available, but not later than 210 days following the end
of each Fiscal Year, the Enterprise shall furnish to the Bank its audited financial statements
prepared in accordance with generally accepted accounting principles consistently applied, in
reasonable detail and certified by a firm of independent certified public accountants se lected by
the Enterprise; and
(ii) promptly upon request of the Bank, the Enterprise shall furnish to
the Bank such other reports or information regarding the collateral securing the obligations of the
Enterprise hereunder or the assets, financial condition, business or operations of the Enterprise, as
the Bank may reasonably request.
(c) The Enterprise shall promptly notify the Bank of any Event of Default of
which the Enterprise has knowledge, setting forth the details of such Event of Default and any
action which the Enterprise proposes to take with respect thereto.
(d) The Enterprise shall notify the Bank as soon as possible after the Enterprise
acquires knowledge of the occurrence of any event which, in the reasonable judgment of the
Enterprise, is likely to have a material adverse effect on the financial condition of the Enterprise
or affect the ability of the Enterprise to perform its obligations under this Agreement or under any
other Financing Documents.
Section 5.22. Visitation and Examination. Unless otherwise prohibited by law, the
Enterprise will permit any Person designated by the Bank to visit any of its offices to examine the
Enterprise’s books and financial records, and make copies thereof or extracts therefrom, and to
discuss its affairs, finances and accounts with its principal officers, all at such reasonable times
and as often as the Bank may reasonably request.
Section 5.23. Additional Debt. The Enterprise may issue Debt with a lien on the Net
Pledged Revenues that is on a parity with or subordinate to the lien of this Agreement, without the
Bank’s prior written consent. The Enterprise may issue Debt with a lien on the Net Pledged
EXHIBIT A
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Revenues that is senior to the lien of this Agreement, without the Bank’s prior written consent, if
such Debt is issued pursuant to the provisions of the 2018 Bond Ordinance.
ARTICLE VI
INVESTMENTS
Section 6.01. Permitted Investments Only. All moneys held in the Light and Power
Fund shall be invested in Permitted Investments only.
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7.01. Events of Default. The occurrence of any one or more of the following
events or the existence of any one or more of the following conditions shall constitute an Event of
Default under this Agreement (whatever the reason for such event or condition and whether it shall
be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree,
rule, regulation or order of any court or any administrative or governmental body):
(a) the Enterprise fails to pay the principal of or interest on the Note or any
Parity Debt when due;
(b) the Enterprise fails to pay when due any other amounts due and payable to
the Bank under this Agreement or any other Financing Documents;
(c) the Enterprise fails to observe or perform any other of the covenants,
agreements or conditions on the part of the Enterprise in this Agreement, the Note, or the
Authorizing Ordinance and the Enterprise fails to remedy the same within 30 days after the Bank
has provided the Enterprise with notice thereof;
(d) any representation or warranty made by the Enterprise in this Agreement or
in any other Financing Document or any certificate, instrument, financial or other statement
furnished by the Enterprise to the Bank, proves to have been untrue or incomplete in any material
respect when made or deemed made;
(e) the pledge of the collateral or any other security interest created hereunder
fails to be fully enforceable with the priority required hereunder or thereunder;
(f) any judgment or court order for the payment of money exceeding any
applicable insurance coverage by more than $100,000 in the aggregate is rendered against the
Enterprise and the Enterprise fails to vacate, bond, stay, contest, pay or satisfy such judgment or
court order for 60 days;
(g) the Enterprise shall initiate, acquiesce or consent to any proceedings to
dissolve the Enterprise or to consolidate the Enterprise with other similar entities into a single
entity or the Enterprise shall otherwise cease to exist;
EXHIBIT A
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(h) a change occurs in the financial or operating conditions of the Enterprise,
or the occurrence of any other event that, in the Bank’s reasonable judgment, will have a materially
adverse impact on the ability of the Enterprise to generate Net Pledged Revenues sufficient to
satisfy the Enterprise’s obligations under this Agreement or its other obligations, and the
Enterprise fails to cure such condition within six months after receipt by the Enterprise of written
notice thereof from the Bank;
(i) the Enterprise shall commence any case, proceeding or other action
(A) under any existing or future law of any jurisdiction relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered with respect to it or
seeking to adjudicate it insolvent or a bankrupt or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or
its debts; or (B) seeking appointment of a receiver, trustee, custodian or other similar official for
itself or for any substantial part of its property, or the Enterprise shall make a general assign ment
for the benefit of its creditors; or (ii) there shall be commenced against the Enterprise any case,
proceeding or other action of a nature referred to in clause (i) and the same shall remain
undismissed; or (iii) there shall be commenced against the Enterprise any case, proceeding or other
action seeking issuance of a warrant of attachment, execution, distraint or similar process against
all or any substantial part of its property which results in the entry of an order for any such relief
which shall not have been vacated, discharged, or stayed or bonded pending appeal, within 60 days
from the entry thereof; (iv) the Enterprise shall take action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii) or (iii) above;
or (v) the Enterprise shall generally not, or shall be unable to, or shall admit in writing its inability
to, pay its debts as they become due;
(j) this Agreement or any other Financing Document, or any material provision
hereof or thereof, (i) ceases to be valid and binding on the Enterprise or is declared null and void,
or the validity or enforceability thereof is contested by the Enterprise (unless being contested by
the Enterprise in good faith), or the Enterprise denies it has any or further liability under any such
document to which it is a party; or (ii) any pledge or security interest created fails to be fully
enforceable with the priority required hereunder or thereunder; and
(k) the Enterprise’s auditor delivers a qualified opinion with respect to the
Enterprise’s status as an on-going concern.
Section 7.02. Remedies. Upon the occurrence and during the continuance of any Event
of Default, the Loan shall bear interest at the Default Interest Rate. Upon the occurrence and
during the continuance of any Event of Default, the Bank, at its option, may take any action or
remedy available under the other Financing Documents or any other document, or at law or in
equity. Notwithstanding anything to the contrary herein, acceleration of the Loan shall not be an
available remedy for the occurrence or continuance of an Event of Default. In exercising any
remedy hereunder, the Bank shall give notice to all Notice Parties.
Section 7.03. Notice to Bank of Default. Notwithstanding any cure period described
above, the Enterprise will immediately notify the Bank in writing when the Enterprise obt ains
knowledge of the occurrence of any Event of Default or any event which would, with the passage
of time or the giving of notice, constitute an Event of Default.
EXHIBIT A
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Section 7.04. Additional Bank Rights. Upon the occurrence of an Event of Default the
Bank may at any time take such other steps to protect or preserve the Bank’s interest in the Net
Pledged Revenues.
Section 7.05. Delay or Omission No Waiver. No delay or omission of the Bank to
exercise any right or power accruing upon any default shall exhaust or impair any such right or
power or shall be construed to be a waiver of any such default, or acquiescence therein; and every
power and remedy given by this Agreement may be exercised from time to time and as often as
may be deemed expedient.
Section 7.06. No Waiver of One Default to Affect Another; All Remedies
Cumulative. No waiver of any Event of Default hereunder shall extend to or affect any subsequent
or any other then existing Event of Default or shall impair any rights or remedies consequent
thereon. All rights and remedies of the Bank provided herein shall be cumulative and the exercise
of any such right or remedy shall not affect or impair the exercise of any other right or remedy.
Section 7.07. Other Remedies. Nothing in this Article VII is intended to restrict the
Bank’s rights under any of the Financing Documents or at law or in equity, and the Bank may
exercise all such rights and remedies as and when they are available.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Loan Agreement and Relationship to Other Documents. The
warranties, covenants and other obligations of the Enterprise (and the rights and remedies of the
Bank) that are outlined in this Agreement and the other Financing Documents are intended to
supplement each other. In the event of any inconsistencies in any of the terms in the Financing
Documents, all terms will be cumulative so as to give the Bank the most favorable rights set forth
in the conflicting documents, except that if there is a direct conflict between any preprinted terms
and specifically negotiated terms (whether included in an addendum or otherwise), the specifically
negotiated terms will control.
Section 8.02. Assignments, Participations, etc. by the Bank. The Bank may not assign
or transfer this Agreement or the Note or participate any of the Bank’s interests in the Agreement
or the Note without the Enterprise’s prior written consent. Any such assignment without the
Enterprise’s prior written consent shall be deemed null and void and of no effect.
Section 8.03. Notices. Notices shall be deemed delivered when the notice has been
(a) deposited in the United States Mail, postage pre-paid; (b) received by overnight delivery
service; (c) received by Electronic Notification; or (d) when personally delivered at the following
addresses (the “Notice Parties”): Notice of any record shall be deemed delivered when the record
has been (a) deposited in the United States Mail, postage pre-paid; (b) received by overnight
delivery service; (c) received by Electronic Notification; or (d) when personally delivered at the
following addresses (the “Notice Parties”):
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to Enterprise: City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
Attn: City Manager
with a copy to: City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
Attn: City Attorney
to Bank: U.S. Bank National Association
400 S. Howes Street
Fort Collins, CO 80521
Attn: Greg Metzo
Section 8.04. Payments. Payments due on the Loan shall be made in lawful money of
the United States. All payments may be applied by the Bank to principal, interest and other
amounts due under the Note and this Agreement pursuant to the terms of this Agreement.
Section 8.05. Applicable Law and Jurisdiction; Interpretation; Severability. This
Agreement and all other Financing Documents will be governed by and interpreted in accordance
with the internal laws of the State of Colorado, except to the extent superseded by Federal law.
Invalidity of any provisions of this Agreement will not affect any other provision. TO THE
EXTENT PERMITTED BY LAW, THE ENTERPRISE AND THE BANK HEREBY CONSENT
TO THE EXCLUSIVE JURISDICTION OF ANY STATE COURT SITUATED IN LARIMER
COUNTY, COLORADO, AND WAIVE ANY OBJECTIONS BASED ON FORUM NON
CONVENIENS, WITH REGARD TO ANY ACTIONS, CLAIMS, DISPUTES OR
PROCEEDINGS RELATING TO THIS AGREEMENT, THE NOTE, THE NET PLEDGED
REVENUES, ANY OTHER FINANCING DOCUMENT, OR ANY TRANSACTIONS
ARISING THEREFROM, OR ENFORCEMENT AND/OR INTERPRETATION OF ANY OF
THE FOREGOING. Nothing in this Agreement will affect the Bank’s rights to serve process in
any manner permitted by law. This Agreement, the other Financing Documents and any
amendments hereto (regardless of when executed) will be deemed effective and accepted only at
the Bank’s offices, and only upon the Bank’s receipt of the executed originals thereof. Invalidity
of any provision of this Agreement shall not affect the validity of any other provision.
Section 8.06. Copies; Entire Agreement; Modification. The Enterprise hereby
acknowledges the receipt of a copy of this Agreement and all other Financing Documents.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT
SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING,
EXPRESSING CONSIDERATION AND SIGNED BY THE PARTIES ARE ENFORCEABLE.
NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN
CONTRACT MAY BE LEGALLY ENFORCED. THE TERMS OF THIS AGREEMENT MAY
ONLY BE CHANGED BY ANOTHER WRITTEN AGREEMENT. THIS NOTICE SHALL
ALSO BE EFFECTIVE WITH RESPECT TO ALL OTHER CREDIT AGREEMENTS NOW IN
EFFECT BETWEEN THE ENTERPRISE AND THE BANK. A MODIFICATION OF ANY
EXHIBIT A
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OTHER CREDIT AGREEMENT NOW IN EFFECT BETWEEN THE ENTERPRISE AND THE
BANK, WHICH OCCURS AFTER RECEIPT BY THE ENTERPRISE OF THIS NOTICE, MAY
BE MADE ONLY BY ANOTHER WRITTEN INSTRUMENT. ORAL OR IMPLIED
MODIFICATIONS TO ANY SUCH CREDIT AGREEMENT IS NOT ENFORCEABLE AND
SHOULD NOT BE RELIED UPON.
Section 8.07. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY LAW, THE
ENTERPRISE AND THE BANK HEREBY JOINTLY AND SEVERALLY WAIVE ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATING TO ANY
OF THE FINANCING DOCUMENTS, THE OBLIGATIONS THEREUNDER, ANY
COLLATERAL SECURING THE OBLIGATIONS, OR ANY TRANSACTION ARISING
THEREFROM OR CONNECTED THERETO. THE ENTERPRISE AND THE BANK EACH
REPRESENTS TO THE OTHER THAT THIS WAIVER IS KNOWINGLY, WILLINGLY AND
VOLUNTARILY GIVEN.
Section 8.08. Attachments. All documents attached hereto, including any appendices,
schedules, riders and exhibits to this Agreement, are hereby expressly incorporated by reference.
Section 8.09. No Recourse Against Officers and Agents. Pursuant to
Section 11-57-209 of the Supplemental Public Securities Act, if a member of the Board, or any
officer or agent of the Enterprise, acts in good faith in the performance of his duties as a member,
officer, or agent of the Board or the Enterprise and in no other capacity, no civil recourse shall be
available against such member, officer or agent for payment of the principal of and interest on the
Loan. Such recourse shall not be available either directly or indirectly through the Board or the
Enterprise, or otherwise, whether by virtue of any constitution, stat ute, rule of law, enforcement
of penalty, or otherwise. By the acceptance of the delivery of the Note evidencing the Loan and
as a part of the consideration for such transfer, the Bank and any Person purchasing or accepting
the transfer of the obligation representing the Loan specifically waives any such recourse.
Section 8.10. Conclusive Recital. Pursuant to Section 11-57-210 of the Supplemental
Public Securities Act, this Agreement is entered into pursuant to certain provisions of the
Supplemental Public Securities Act. Such recital shall be conclusive evidence of the validity and
the regularity of the issuance of this Agreement after delivery for value.
Section 8.11. Limitation of Actions. Pursuant to Section 11-57-212 of the Supplemental
Public Securities Act, no legal or equitable action brought with respect to any legislative acts or
proceedings in connection with the authorization or issuance of the Loan shall be commenced
more than 30 days after the authorization of the Loan.
Section 8.12. Pledge of Revenues. The creation, perfection, enforcement, and priority of
the pledge of revenues to secure or pay the Loan provided herein shall be governed by
Section 11-57-208 of the Supplemental Public Securities Act, this Agreement, the Note, and the
Authorizing Ordinance. The amounts pledged to the payment of the Loan shall immediately be
subject to the lien of such pledge without any physical delivery, filing, or further act. The lien of
such pledge shall have a first priority. The lien of such pledge shall be valid, binding, and
enforceable as against all Persons having claims of any kind in tort, contract, or otherwise against
the Enterprise irrespective of whether such Persons have notice of such liens.
EXHIBIT A
27
Section 8.13. No Liability. The Bank, including its agents, employees, officers, directors
and controlling Persons, shall not have any liability to the Enterprise, and the Enterprise assumes
all risk, responsibility and liability for (a) the form, sufficiency, correctness, validity, genuineness,
falsification and legal effect of any demands and other documents, instruments and other papers
relating to the Loan even if such documents, should prove to be in any or all respects invalid,
insufficient, fraudulent or forged; (b) the general and particular conditions stipulated therein;
(c) the good faith acts of any Person whosoever in connection therewith; (d) failure of any Person
(other than the Bank, subject to the terms and conditions hereof) to comply with the terms of the
Loan; (e) errors, omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telex, telegraph, wireless or otherwise, whether or not they be in code; (f) errors in
translation or errors in interpretation of technical terms; (g) for any other consequences arising
from causes beyond the Bank’s control; or (h) any use of which may be made of the proceeds of
the Loan, except to the extent of any direct, as opposed to indirect, consequential, or special
damages suffered by the Enterprise which direct damages are proven by the Enterprise to be caused
by the Bank’s willful or grossly negligent failure to make lawful payment under the Loan.
Section 8.14. No Waiver; Modifications in Writing. No failure or delay on the part of
the Bank in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or remedy preclude any other right,
power or remedy. The remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to the Bank at law or in equity or otherwise. No amendment,
modification, supplement, termination or waiver of or to any provision of this Agreement, nor
consent to any departure by the Enterprise therefrom, shall be effective unless the same shall be in
writing and signed by or on behalf of the Bank and the Enterprise. Any amendment, modification
or supplement of or to any provision of this Agreement, and any consent to any departure by the
Enterprise from the terms of any provision of this Agreement, shall be effective only in the specific
instance and for the specific purpose for which made or given. No notice to or demand on the
Enterprise in any case shall entitle the Enterprise to any other or further notice or demand in similar
or other circumstances or constitute a waiver of the right of the Bank to any other or further action
in any circumstances without notice or demand.
Section 8.15. Payment on Non-Business Days. Whenever any payment hereunder shall
be stated to be due on a day which is not a Business Day, such payment may be made on the next
succeeding Business Day.
Section 8.16. Execution in Counterparts; Electronic Storage. This Agreement may be
executed in counterparts, each of which when so executed and delivered shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but one and the same
Agreement. The parties hereto agree that the transactions described herein may be conducted and
related documents may be stored by electronic means. Copies, telecopies, facsimiles, electronic
files and other reproductions of original executed documents shall be deemed to be authentic and
valid counterparts of such original documents for all purposes, including the filing of any claim,
action or suit in the appropriate court of law.
Section 8.17. Severability. Any provision of this Agreement which is prohibited,
unenforceable or not authorized in any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition, unenforceability or nonauthorization without invalidating the
EXHIBIT A
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remaining provisions hereof or affecting the validity, enforceability or legality of such provision
in any other jurisdiction.
Section 8.18. Headings. Article and Section headings used in this Agreement are for
convenience of reference only and shall not affect the construction of this Agreement.
Section 8.19. Waiver of Rules of Construction. The Enterprise hereby waives any and
all provisions of law to the effect that an ambiguity in a contract or agreement should be interpreted
against the party responsible for its drafting.
Section 8.20. Integration. This Agreement is intended to be the final agreement between
the parties hereto relating to the subject matter hereof and this Agreement and any agreement,
document or instrument attached hereto or referred to herein shall supersede all oral negotiation s
and prior writings with respect to the subject matter hereof.
Section 8.21. Termination of Agreement. At such time as all amounts due to the Bank
have been duly paid, or provided for, this Agreement shall terminate.
EXHIBIT A
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
set forth above.
U.S. BANK NATIONAL ASSOCIATION, a
national banking association
By _______________________________________
Name _____________________________________
Title ______________________________________
CITY OF FORT COLLINS, COLORADO,
ELECTRIC UTILITY ENTERPRISE, an
enterprise of the City of Fort Collins, Colorado
By _______________________________________
President
[SEAL]
Attest:
By
Secretary
[Signature Page to Loan Agreement]
EXHIBIT A
A-1
EXHIBIT A
FORM OF 2022 NOTE
THIS NOTE MAY NOT BE SOLD TRANSFERRED OR OTHERWISE DISPOSED OF
WITHOUT THE CONSENT OF THE ENTERPRISE.
UNITED STATES OF AMERICA
STATE OF COLORADO
CITY OF FORT COLLINS, COLORADO, ELECTRIC UTILITY ENTERPRISE
2022 TAXABLE SUBORDINATE LIEN REVENUE NOTE
IN THE AGGREGATE PRINCIPAL AMOUNT OF
NOT TO EXCEED $2,500,000
Advances Not to Exceed US $2,500,000 __________, 2022
FOR VALUE RECEIVED, CITY OF FORT COLLINS, COLORADO, ELECTRIC
UTILITY ENTERPRISE, an enterprise of the City of Fort Collins, Colorado, (hereinafter referred
to as “Maker”), promises to pay to the order of U.S. BANK NATIONAL ASSOCIATION, a
national banking association, its successors and assigns (hereinafter referred to as “Payee”), at the
office of Payee or its agent, designee, or assignee at ___________________ or at such place as
Payee or its agent, designee, or assignee may from time to time designate in writing, all Advances
made in an amount not to exceed the principal sum of TWO MILLION FIVE HUNDRED
THOUSAND AND NO/100 DOLLARS (US $2,500,000) (this “Note”) pursuant t o the terms of
the Loan Agreement dated of even date herewith by and between Maker and Payee (the “Loan
Agreement”), in lawful money of the United States of America.
This Note shall bear interest, be payable, and mature pursuant to the terms and provisions
of the Loan Agreement. All capitalized terms used and not otherwise defined herein shall have
the respective meanings ascribed in the Loan Agreement.
All amounts due under this Note shall be payable and collectible solely out of the Net
Pledged Revenues, which revenues are hereby so pledged which pledge is in all respects
subordinate to the pledge and lien thereon of the Senior Debt at any time outstanding. The Bank
may not look to any general or other fund for the payment of such amounts; this Note shal l not
constitute a debt or indebtedness within the meaning of any constitutional, charter, or statutory
provision or limitation; and this Note shall not be considered or held to be general obligations of
the Enterprise or the City but shall constitute a special obligation of the Enterprise. No statutory
or constitutional provision enacted after the execution and delivery of the Note shall in any manner
be construed as limiting or impairing the obligation of the Enterprise to comply with the provisions
of this Note. None of the covenants, agreements, representations and warranties contained herein
or in this Note shall ever impose or shall be construed as imposing any liability, obligation or
charge against the Enterprise or the City (except the Net Pledged Revenues and the special funds
pledged therefor), or against its general credit, or as payable out of its general fund or out of any
funds derived from taxation or out of any other revenue source (other than those pledged therefor).
EXHIBIT A
A-2
The payment of the amounts due under this Note is not secured by an encumbrance, mortgage or
other pledge of property of the City or the Enterprise, except for the Net Pledged Revenues. No
property of the City or the Enterprise, subject to such exception, shall be liable to be forfeited or
taken in payment of such amounts.
Amounts received by Payee under this Note shall be applied in the manner provided by the
Loan Agreement. All amounts due under this Note shall be payable without setoff, counterclaim
or any other deduction whatsoever by Maker.
Unless payments are made in the required amount in immediately available funds in
accordance with the provisions of the Loan Agreement, remittances in payment of all or any part
of the amounts due and payable hereunder shall not, regardless of any receipt or credit issued
therefor, constitute payment until the required amount is actually received by Payee in funds
immediately available at the place where this Note is payable (or any other place as Payee, in
Payee’s sole discretion, may have established by delivery of written notice thereof to Maker) and
shall be made and accepted subject to the condition that any check or draft may be handled for
collection in accordance with the practice of the collecting bank or banks. Acceptance by Pa yee
of any payment in an amount less than the amount then due shall be deemed an acceptance on
account only and any unpaid amounts shall remain due hereunder, all as more particularly provided
in the Loan Agreement.
In the event of nonpayment of this Note, Payee shall be entitled to all remedies under the
Loan Agreement and at law or in equity, and all remedies shall be cumulative.
It is expressly stipulated and agreed to be the intent of Maker and Payee at all times to
comply with applicable state law and applicable United States federal law. If the applicable law
(state or federal) is ever judicially interpreted so as to render usurious any amount called for under
this Note or under the Loan Agreement, or contracted for, charged, taken, reserved or received
with respect to the indebtedness evidenced by this Note, then it is Maker’s and Payee’s express
intent that all excess amounts theretofore collected by Payee be credited on the principal balance
of this Note (or, if this Note has been or would thereby be paid in full, refunded to Maker), and the
provisions of this Note shall immediately be deemed reformed and the amounts thereafter
collectible hereunder and thereunder reduced, without the necessity of the execution of any new
document, so as to comply with the applicable law, but so as to permit the recovery of the fullest
amount otherwise called for hereunder and under the Loan Agreement. All sums paid or agreed
to be paid to Payee for the use, forbearance and detention of the indebtedness evidenced her eby
and by the Loan Agreement shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full term of such indebtedness until payment in full so that the
rate or amount of interest on account of such indebtedness does not exceed the maximum rate
permitted under applicable law from time to time in effect and applicable to the indebtedness
evidenced hereby for so long as such indebtedness remains outstanding.
Maker and any endorsers, sureties or guarantors hereof jointly and severally waive
presentment and demand for payment, protest and notice of protest and nonpayment, all applicable
exemption rights, valuation and appraisement, notice of demand, and all other notices in
connection with the delivery, acceptance, performance, default or enforcement of the payment of
this Note and the bringing of suit and diligence in taking any action to collect any sums owing
EXHIBIT A
A-3
hereunder or in proceeding against any of the rights and collateral securing payment hereof. Maker
and any surety, endorser or guarantor hereof agree (a) that the time for any payments hereunder
may be extended from time to time without notice and consent; (b) to the acceptance of further
collateral; (c) to the release of any existing collateral for the payment of this Note; (d) to any and
all renewals, waivers or modifications that may be granted by Payee with respect to the payment
or other provisions of this Note; and/or (e) that additional makers, endorsers, guarantors or sureties
may become parties hereto all without notice to them and without in any manner affecting their
liability under or with respect to this Note. No extension of time for the payment of this Note shall
affect the liability of Maker under this Note or any endorser or guarantor hereof even though Maker
or such endorser or guarantor is not a party to such agreement.
Failure of Payee to exercise any of the options granted herein to Payee upon the happening
of one or more of the events giving rise to such options shall not constitute a waiver of the right to
exercise the same or any other option at any subsequent time in respect to the same or any other
event. The acceptance by Payee of any payment hereunder that is less than payment in full of all
amounts due and payable at the time of such payment shall not constitute a waiver of the right to
exercise any of the options granted herein or in the Loan Agreement to Payee at that time or at any
subsequent time or nullify any prior exercise of any such option without the express written
acknowledgment of Payee.
Maker (and the undersigned representative of Maker, if any) represents that Maker has full
power, authority and legal right to execute, deliver and perform its obligations pursuant to this
Note and this Note constitutes the legal, valid and binding obligation of Maker.
All notices or other communications required or permitted to be given hereunder shall be
given in the manner and be effective as specified in the Loan Agreement, directed to the parties at
their respective addresses as provided therein.
This Note is governed by and interpreted in accordance with the internal laws of the State
of Colorado, except to the extent superseded by federal law. Invalidity of any provisions of this
Note will not affect any other provision.
Pursuant to Section 11-57-210 of the Colorado Revised Statutes, as amended, this Note is
entered into pursuant to and under the authority of the Supplemental Public Securities Act, being
Title 11, Article 57, of the Colorado Revised Statutes, as amended. Such recital shall be
conclusive evidence of the validity and the regularity of the issuance of this Note after delivery for
value and shall conclusively impart full compliance with all provisions and limitations of said
statutes, and this Note shall be incontestable for any cause whatsoever after delivery for value.
By acceptance of this instrument, the Payee agrees and consents to all of the limitations in
respect of the payment of the principal of and interest on this Note contained herein, in the
Authorizing Ordinance of the Maker authorizing the issuance of this Note and in the Agreement,
as the same may be amended from time to time.
TO THE EXTENT PERMITTED BY LAW, MAKER HEREBY CONSENTS TO THE
EXCLUSIVE JURISDICTION OF ANY STATE COURT SITUATED IN LARIMER COUNTY,
COLORADO, AND WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS,
EXHIBIT A
A-4
WITH REGARD TO ANY ACTIONS, CLAIMS, DISPUTES OR PROCEEDINGS RELATING
TO THIS NOTE, THE LOAN AGREEMENT, THE NET PLEDGED REVENUES, ANY
OTHER FINANCING DOCUMENT, OR ANY TRANSACTIONS ARISING THEREFROM,
OR ENFORCEMENT AND/OR INTERPRETATION OF ANY OF THE FOREGOING.
TO THE EXTENT PERMITTED BY LAW, MAKER HEREBY WAIVES ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATING TO THIS
NOTE, THE LOAN AGREEMENT, OR ANY OF THE OTHER FINANCING DOCUMENTS,
THE OBLIGATIONS THEREUNDER, ANY COLLATERAL SECURING THE
OBLIGATIONS, OR ANY TRANSACTION ARISING THEREFROM OR CONNECTED
THERETO. MAKER REPRESENTS TO PAYEE THAT THIS WAIVER IS KNOWINGLY,
WILLINGLY AND VOLUNTARILY GIVEN.
THE PROVISIONS OF THIS NOTE MAY BE AMENDED OR REVISED ONLY BY
AN INSTRUMENT IN WRITING SIGNED BY MAKER AND PAYEE. THERE ARE NO
ORAL AGREEMENTS BETWEEN MAKER AND PAYEE WITH RESPECT TO THE
SUBJECT MATTER HEREOF.
IN WITNESS WHEREOF, an authorized representative of City of Fort Collins, Colorado,
Electric Utility Enterprise, as Maker, has executed this Note as of the day and year first above
written.
CITY OF FORT COLLINS, COLORADO,
ELECTRIC UTILITY ENTERPRISE
By
President
[SEAL]
Attest:
By
Secretary
EXHIBIT A
B-1
EXHIBIT B
FORM OF ADVANCE REQUEST
City of Fort Collins, Colorado, Electric Utility Enterprise
Loan Agreement
The undersigned certifies that he/she is an Authorized Person under that certain Loan
Agreement dated as of [closing date], 2022 (the “Agreement”) by and between City of Fort Collins,
Colorado, Electric Utility Enterprise and U.S. Bank National Association (the “Bank”). All
capitalized terms used in this Advance Request (“Advance Request”) shall have the respective
meanings assigned in the Agreement.
The undersigned Authorized Person hereby makes a request to the Bank for an Advance
on the Loan, and in support thereof states:
(i) The amount of the Advance so requested is $___________.
(ii) Upon the funding of such Advance, the sum of all Advances will not exceed the
Maximum Advance Amount of the Loan.
(iii) At the time the requested Advance is to be made and as a result thereof, immediately
thereafter, all representations and warranties of the Enterprise set forth in Article IV of the Loan
Agreement are true and correct as though made on the date hereof and will be true and correct as
though made on the Advance Date and no Event of Default shall have occurred and be continuing
on the date hereof and on the Advance Date and no litigation is currently pending or threatened
concerning the Enterprise’s authority to pledge the Net Pledged Revenues as provided in the Loan
Agreement.
(iv) The outstanding Senior Debt is rated in one of its four highest rating categories by
a national recognized organization which regularly rates obligations such as the Senior Debt
(v) The requested Advance shall be made by the Bank by ACH batch transfer to the
Enterprise in accordance with the instructions set forth below:
[Insert wire instructions]
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of ________,
20__.
CITY OF FORT COLLINS, COLORADO,
ELECTRIC UTILITY ENTERPRISE
By
Authorized Person
EXHIBIT A
C-1
EXHIBIT C
FORM OF CONVERSION NOTICE
City of Fort Collins, Colorado, Electric Utility Enterprise
Loan Agreement
The undersigned certifies that he/she is an Authorized Person under that certain Loan
Agreement dated as of [closing date], 2022 (the “Agreement”) by and between City of Fort Collins,
Colorado, Electric Utility Enterprise and U.S. Bank National Association (the “Bank”). All
capitalized terms used in this Conversion Notice have the respective meanings assigned in the
Agreement.
You are hereby notified that the Enterprise has elected to convert the followings Advances
to a Term Loan effective as of the ____ and maturing on __________, 20__ (which date is not
later than the 8th anniversary of the Closing Date):
Advance Date Outstanding Principal Amount
No Event of Default has occurred and is continuing under the Agreement.
All representations and certifications of Enterprise in the Agreement are true and correct
as of the date hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of ____________,
20__.
CITY OF FORT COLLINS, COLORADO,
ELECTRIC UTILITY ENTERPRISE
By
Authorized Person
EXHIBIT A