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HomeMy WebLinkAboutE03 Lender CertLENDER CERTIFICATE Dated: February 14, 2024 Capital One Public Funding, LLC, Melville, New York ("COPF") hereby certifies as follows with regard to the Water Revenue Bond, Series 2024 (Subordinate Lien) (the "Bond") in the principal amount of $4,125,000 issued by the Tustin Public Financing Authority (the "Authority") pursuant to an Indenture of Trust (the "Indenture") between the Authority and The Bank of New York Mellon Trust Company, N.A., as trustee (the "Trustee"), debt service with respect to which will be paid from installment payments made by the City of Tustin (the "Borrower") under an Installment Sale Agreement (together with the Bond, the "Loan Obligation"): I. COPF has full power and authority to carry on its business as now conducted, deliver this Original Purchaser Certificate and make the representations and certifications contained herein. 2. COPF is a lender that regularly extends credit to state and local governments by making loans and acquiring repayment obligations that are evidenced by obligations such as the Loan Obligation; has knowledge and experience in financial and business matters that make it capable of evaluating the Borrower, the Loan Obligation and the risks associated with the extension of credit evidenced by the Loan Obligation; has the ability to bear the economic risk of extending the credit evidenced by the Loan Obligation; and is a limited liability company controlled by a bank engaged in the primary business of extending credit and making loans to state and local governments and non-profit entities and has total assets in excess of $1 billion. COPF is not acting as a broker, dealer, municipal securities underwriter, municipal advisor or fiduciary in connection with its extension of credit evidenced by the Loan Obligation. 3. COPF has conducted its own investigation of the financial condition of the Borrower, of the purpose for which the Loan Obligation is being executed and delivered, and of the security for the payment of the principal of and interest on the Loan Obligation and has obtained such information regarding the Loan Obligation and the Borrower and its operations, financial condition, and financial prospects as COPF deems necessary to make an informed lending decision with respect to its extension of credit evidenced by the Loan Obligation. 4. COPF extending credit to the Borrower evidenced by the Loan Obligation and is acquiring the interests in the Loan Obligation as a vehicle for making a commercial loan for its own loan account and with the present intention of holding the Loan Obligation to maturity or earlier prepayment, provided that COPF retains the right at any time to dispose of the Loan Obligation or any interest therein or portion thereof, but agrees that any such sale, transfer or distribution by COPF shall be made in accordance with applicable law and the provisions of the Loan Obligation and related documents only in whole to (a) an affiliate of COPF or (b) a bank, trust, custodian, insurance company, or other financial institution or an affiliate thereof. COPF and its assignees further retain the right to sell or assign participation interests in the Loan Obligation, in minimum amounts of $250,000, to an entity listed in 2471894.1 11338-0o5 (a) or (b) of this Section 4, provided that any participation, custodial, or similar agreement under which multiple ownership interests are created in the Loan Obligation shall provide the method by which the owners of such interests shall establish the rights and duties of a single entity, owner, servicer, or other fiduciary or agent acting on behalf of all of the assignees to act on their behalf with respect to the rights and "interests of the registered owner of the Loan Obligation, including with respect to the exercise of rights and remedies of the registered owner on behalf of such owners upon the occurrence of an event of default under the Loan Obligation. 5. COPF acknowledges that (a) the Loan Obligation (i) has not been registered under the Securities Act of 1933, as amended, (ii) has not been registered or otherwise qualified for sale under the securities laws of any state, and (iii) will not be listed on any securities exchange and (b) there is no established market for the Loan Obligation and that none is likely to develop. COPF understands and acknowledges that (a) its extension of credit evidenced by the Loan Obligation is not intended to be subject to the requirements of Rule 15c2-12 promulgated under the Securities Exchange Act of 1934, as amended, and (b) in connection with COPF's extension of credit evidenced by the Loan Obligation, the Borrower has not prepared or caused to be prepared, any official statement, private placement memorandum or other offering document. b. COPF is acting solely for its own loan account and not as a fiduciary for the Borrower or in the capacity of broker, dealer, placement agent, municipal securities underwriter, municipal advisor, or fiduciary. COPF has not provided, and will not provide, financial, legal (including securities law), tax, accounting, or other advice to or on behalf of the Borrower (including to any municipal advisor or any placement agent engaged by the Borrower) with respect to the structuring, issuance, sale, or delivery of the Loan Obligation. COPF has no fiduciary duty pursuant to Section 15B of the Securities Exchange Act of 1934, as amended, to the Borrower with respect to the transactions relating to the structuring, issuance, sale, or delivery of the Loan Obligation and the discussions, undertakings, and procedures leading thereto. Each of the Borrower, its municipal advisor, and its placement agent has sought and shall seek and obtain financial, legal (including securities law), tax, accounting, and other advice (including as it relates to structure, timing, terms, and similar matters and compliance with legal requirements applicable to such parties) with respect to the Loan Obligation from its own financial, legal, tax, and other advisors (and not from the undersigned or its affiliates) to the extent that the Borrower, its municipal advisor, or its placement agent desires to, should, or needs to obtain such advice_ COPF expresses no view regarding the legal sufficiency of its representations for purposes of compliance with any legal requirements applicable to any other party, including but not limited to the Borrower's municipal advisor or placement agent, or the correctness of any legal interpretation made by counsel to any other party, including but not limited to counsel to the Borrower's municipal advisor or placement agent, with respect to any such matters. The transactions between the Borrower and COPF are arm's-length, commercial transactions in which COPE is acting and has acted solely as a principal and for its own interest, and COPF has not made recommendations to the Borrower with respect to the transactions relating to the Loan Obligation. 7. COPF acknowledges and agrees that the Borrower and its placement agent take no responsibility for, and make no representation to COPF, or any subsequent purchaser, with regard to, a sale, transfer or other disposition of the Bond in violation of 2471894.1 11338-005 2 the provisions of the Indenture, or any securities law or income tax law consequences thereof. COPF also acknowledges that, with respect to the Borrower's obligations and liabilities, COPF is solely responsible for compliance with the restrictions on transfer of the Bond in connection with any subsequent transfer of the Bond made by COPF. 8. COPF acknowledges that the issuance of the Bond to COPF is made in reliance upon the certifications, representations, and warranties herein made for the benefit of the Borrower, its placement agent, the Authority, and the Trustee. 9. The interpretation of the provisions hereof shall be governed and construed in accordance with California law without regard to principles of conflicts of laws. 10. All representations of COPF contained in this letter shall survive the execution and delivery of the Bond to COPF as representations of fact existing as of the date of execution and delivery of this Lender Certificate. IN WITNESS WHEREOF, Capital One Public Funding, LLC, has caused this Lender Certificate to be executed by its officer thereunto duly authorized, all as of the day and year first above written. CAPITAL ONE PUBLIC FUNDING, LLC By: Name: k02J U Title: 247180.1 11338-005