2005/09/14 Council Agenda Packet

1G Agreement as a result of(i) the failure of Asarco to conduct the remediation work required by the Remediation Agreement in conformance with the schedule set forth in Exhibit G attached thereto and (ii) the failure of Asarco to pay the costs for such remediation work in excess of the budgets set forth in Exhibit H attached to the Remediation Agreement (such defaults, together with the other defaults described in the Notice of Default, the"Asarco Defaults"). F. The Authority has requested that the Bank permit additional draws on the Note notwithstanding the Asarco Defaults, and in connection therewith, the Bank has agreed to enter into that certain Waiver and Amendment Agreement dated August , 2005 (the "Waiver Agreement") with the Authority, pursuant to which and subject to the terms and conditions set forth therein, the Bank will agree to permit additional draws on the Note. G. Pursuant to the terms of the Waiver Agreement, it is a material condition precedent to the effectiveness thereof that the City, the Authority and the Bank enter into this Agreement. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto covenant and agree as follows. Section 1 Definitions. Capitalized terms used herein and not otherwise defined shall have the meaning given in the Contingent Funding Agreement. Section 2 Consent. The City hereby acknowledges that it has received a copy of the Waiver Agreement and hereby consents to its contents (notwithstanding that such consent is not required). Section 3 Confirmation. Each of the parties hereto hereby confirm that the Contingent Funding Agreement remains in full force and effect, and each of the parties hereto hereby ratifies and confirms their respective liabilities, obligations and covenants thereunder. The City hereby ratifies and confirms its approval of each Bank Advance requested by the Authority prior to the date of this Agreement. Without limiting the generality of the foregoing, the City expressly ratifies and confirms each of its obligations under Section 2.01 of the Contingent Funding Agreement, including, without limitation, the agreement of the City to make advances to the Authority upon receipt of a Demand therefor from the Bank or the Authority in an amount equal to the Loan Obligations then outstanding as provided in the existing agreement. The City hereby further confirms and agrees that the Loan Obligations (as such term is defined and used in the Contingent Funding Agreement) shall mean and include the outstanding principal amount of and all accrued but unpaid interest on all the Bank Advances, whether such Bank Advances were or are made before, on or after the date of this Agreement. Section 4 City Representations and Warranties. The City represents and warrants to the Bank as follows: (1) The City has full power, authority and legal right to execute, deliver and perform this Agreement and the execution, delivery and performance by 1 3 SEA 1685103v24900000-605 -2-