Backup Documents 06/27/2017 Item #11C ORIGINAL DOCUMENTS CHECKLIST & ROUTING SLIP I 1 C
TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO
THE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNATURE
Print on pink paper. Attach to original document. The completed routing slip and original documents are to be forwarded to the County Attorney Office
at the time the item is placed on the agenda. All completed routing slips and original documents must be received in the County Attorney Office no later
than Monday preceding the Board meeting.
**NEW** ROUTING SLIP
Complete routing lines#1 through#2 as appropriate for additional signatures,dates,and/or information needed. If the document is already complete with the
exception of the Chairman's signature,draw a line through routing lines#1 through#2,complete the checklist,and forward to the County Attorney Office.
Route to Addressee(s) (List in routing order) Office Initials Date
1.
2.
3. County Attorney Office County Attorney Office JAK 7/11/17
4. BCC Office Board of County b`'\
Commissioners - /5/ —11k k---k
5. Minutes and Records Clerk of Court's Office
NA) P(11111 3 :55
PRIMARY CONTACT INFORMATION
Normally the primary contact is the person who created/prepared the Executive Summary. Primary contact information is needed in the event one of the
addressees above,may need to contact staff for additional or missing information.
Name of Primary Staff Mark Isackson, Office of Management and Phone Number 252-8717
Contact/Department Budget
Agenda Date Item was 6/27/17 Agenda Item Number 11-C
Approved by the BCC Z01,7— 122-
Type of Document Resolution—Lion Agiceement—Amateur Number of Original One s
Attached Sport Complexes[ <\,k,1/4\:2, i;\ Documents Attached
PO number or account N/A
number if document is
to be recorded
INSTRUCTIONS & CHECKLIST
Initial the Yes column or mark"N/A"in the Not Applicable column,whichever is Yes N/A(Not
appropriate. (Initial) Applicable)
1. Does the document require the chairman's original signature JAK
2. Does the document need to be sent to another agency for additional signatures? If yes, JAK
provide the Contact Information(Name;Agency; Address;Phone)on an attached sheet.
3. Original document has been signed/initialed for legal sufficiency. (All documents to be JAK
signed by the Chairman, with the exception of most letters,must be reviewed and signed
by the Office of the County Attorney.
4. All handwritten strike-through and revisions have been initialed by the County Attorney's JAK
Office and all other parties except the BCC Chairman and the Clerk to the Board
5. The Chairman's signature line date has been entered as the date of BCC approval of the JAK
document or the final negotiated contract date whichever is applicable.
6. "Sign here"tabs are placed on the appropriate pages indicating where the Chairman's JAK
signature and initials are required.
7. In most cases(some contracts are an exception),the original document and this routing slip JAK
should be provided to the County Attorney Office at the time the item is input into SIRE.
Some documents are time sensitive and require forwarding to Tallahassee within a certain
•
time frame or the BCC's actions are nullified. Be aware of your deadlines!
8. The document was approved by the BCC on 6/27/17 and all changes made during the JAK
meeting have been incorporated in the attached document. The County Attorney's
Office has reviewed the changes,if applicable. lie rl
9. Initials of attorney verifying that the attached document is the version approved by th- (—Z1:446-•' ;Ktryr
BCC, all changes directed by the BCC have been made,and the document is ready fo the
Chairman's signature.
PLEASE CONTACT VALERIE FLEMING (8973) WHEN READY.
[04-COA-01081/1344830/1]1:Forms/County Forms/BCC Forms/Original Documents Routing Slip WWS Original 9.03 Revised 1.26.05,Revised�� G�
Revised 11/30/12
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RESOLUTION NO. 2017-1 2 2
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUNTY, FLORIDA,
AGREEING TO PARTICIPATION IN A POOLED
COMMERCIAL PAPER LOAN PROGRAM OF THE
FLORIDA LOCAL GOVERNMENT FINANCE
COMMISSION; AUTHORIZING AND DIRECTING
EXECUTION AND DELIVERY OF A LOAN
AGREEMENT WITH THE FLORIDA LOCAL
GOVERNMENT FINANCE COMMISSION AND
JPMORGAN CHASE BANK, N.A.; AUTHORIZING THE
BORROWING OF NOT EXCEEDING $60,000,000
PURSUANT TO THE TERMS OF THE LOAN
AGREEMENT IN ORDER TO FINANCE COSTS OF THE
ACQUISITION, CONSTRUCTION AND EQUIPPING OF
AN AMATEUR SPORTS COMPLEX; AUTHORIZING
THE EXECUTION OF A LOAN NOTE OR LOAN NOTES
TO EVIDENCE SUCH BORROWING AND AGREEING
TO SECURE SUCH BORROWING WITH A COVENANT
TO BUDGET AND APPROPRIATE LEGALLY
AVAILABLE NON-AD VALOREM REVENUES OF THE
COUNTY, ALL AS PROVIDED IN THE LOAN
AGREEMENT; AUTHORIZING THE EXECUTION AND
DELIVERY OF SUCH OTHER DOCUMENTS AS MAY
BE NECESSARY TO EFFECT SUCH BORROWING; AND
PROVIDING AN EFFECTIVE DATE.
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
COLLIER COUNTY, FLORIDA:
SECTION 1. DEFINITIONS. Unless the context of use indicates another
meaning or intent, the following words and terms as used in this Resolution shall have the
following meanings. Capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the hereinafter defined Loan Agreement.
"Act" means, collectively, Part I, Chapter 125, Florida Statutes, Part I, Chapter
163, Florida Statutes, and all other applicable provisions of law.
"Additional Payments" means the payments required to be made by the Public
Agency pursuant to Sections 5.02(b), 5.02(c), 5.02(d), 5.05, 6.06(e) and 8.04 of the Loan
Agreement.
"Bank" means JPMorgan Chase Bank, N.A., and any successors thereto.
"Board" means the Board of County Commissioners of the Public Agency.
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"Chairman" means the Chairman or Vice Chairman of the Board, and such other
person as may be duly authorized to act on his or her behalf.
"Clerk" means the Clerk of the Public Agency, and such other person as may be
duly authorized to act on his or her behalf.
"Commission" means the Florida Local Government Finance Commission, and
any assigns or successors thereto.
"County Manager" means the County Manager of the Public Agency and any
designee of the County Manager.
"Designated Revenues" means (1) the Public Agency Moneys, and (2) the
proceeds of the Loan pending the application thereof
"Loan" means the loan to be made by the Commission to the Public Agency from
proceeds of the Series A Notes in accordance with the terms of this Resolution and of the
Loan Agreement.
"Loan Agreement" means the Loan Agreement, in substantially the form
attached hereto as Exhibit A, among the Public Agency, the Commission and the Bank,
pursuant to which the Commission will loan a portion of the Series A Notes proceeds to
the Public Agency, as the same may be amended and supplemented.
"Loan Rate" has the meaning set forth in the Loan Agreement.
"Loan Repayments" or "Repayments" means the payments of principal and
interest on the Loan Amounts payable by the Public Agency pursuant to the provisions of
the Loan Agreement and all other payments, including Additional Payments, payable by
the Public Agency pursuant to the provisions of the Loan Agreement.
"Non-Ad Valorem Revenues" means all legally available revenues of the Public
Agency derived from any source whatsoever other than ad valorem taxation on real and
personal property, which are legally available to make the Loan Repayments required in
the Loan Agreement.
"Program" means the Pooled Commercial Paper Loan Program established by
the Commission for which the Bank currently provides the Credit Facility.
"Project A-1" means the development, acquisition, construction and equipping of
phase 1 of a regional tournament caliber amateur sports complex complete with eight
multi-purpose fields, parking, championship stadium, and a field house with indoor
courts and fields in order to attract world class amateur sporting events, all to be located
on approximately 60 acres, as the same may be amended or modified from time to time.
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"PublicAgency"ge cy" means Collier County, Florida, a political subdivision of the
State of Florida.
"Public Agency Moneys" shall mean the moneys budgeted and appropriated by
the Public Agency from Non-Ad Valorem Revenues for payment of the Loan
Repayments pursuant to the Public Agency's covenant to budget and appropriate such
Non-Ad Valorem Revenues contained in Section 6.04 of the Loan Agreement.
"Resolution" means this Resolution, as the same may from time to time be
amended, modified or supplemented.
"Series A Notes" means the Commission's Pooled Commercial Paper Notes,
Series A (Governmental Issue), to be issued from time to time by the Commission.
The terms "herein," "hereunder," "hereby," "hereto," "hereof," and any similar
terms, shall refer to this Resolution; the term "heretofore" shall mean before the date of
adoption of this Resolution; and the term "hereafter" shall mean after the date of adoption
of this Resolution.
Words importing the masculine gender include every other gender.
Words importing the singular number include the plural number, and vice versa.
SECTION 2. AUTHORITY FOR RESOLUTION. This Resolution is
adopted pursuant to the provisions of the Act.
SECTION 3. FINDINGS. It is hereby ascertained, determined and
declared that:
(A) The Commission has been established for the principal purpose of issuing
commercial paper notes in order to provide funds to loan to public agencies, such as the
Public Agency, desiring to finance the cost of acquiring, constructing and equipping
capital improvements and to finance other governmental needs.
(B) In furtherance of the foregoing, the Commission shall issue, from time to
time, commercial paper notes to be known as "Florida Local Government Finance
Commission Pooled Commercial Paper Notes, Series A (Governmental Issue)" pursuant
to the Program and shall loan the proceeds of such Series A Notes to public agencies,
including the Public Agency.
(C) Pursuant to the authority of the Act, the Commission has agreed to loan,
from time to time, to the Public Agency such amounts as shall be authorized herein and
in the Loan Agreement in order to enable the Public Agency to finance, refinance and/or
reimburse the costs of the acquisition, construction and equipping of various capital
improvements and other Public Agency Expenses and the Public Agency desires to
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borrow such amounts from the Commission subject to the terms and conditions of the
Loan Agreement.
(D) There is presently a need by the Public Agency to finance the acquisition,
construction and equipping of the Project A-1 and the most cost-effective means by
which to finance the Project A-1 is by use of moneys obtained pursuant to the Program
by means of the Loan.
(E) The Public Agency is authorized under and pursuant to the Act to enter into
the Loan Agreement for the purposes set forth therein.
(F) The Public Agency hereby determines that provision of funds by the
Commission to the Public Agency in the form of the Loan pursuant to the terms of the
Loan Agreement and the finance of the Project A-1 will assist in the development and
maintenance of the public welfare of the residents of the Public Agency, and shall serve a
public purpose by improving the health and living conditions, and providing
governmental services, facilities and programs and will promote the most efficient and
economical development of such services, facilities and programs.
(G) The Loan shall be repaid solely from the Designated Revenues as provided
in the Loan Agreement. The ad valorem taxing power of the Public Agency will never be
necessary or authorized to make the Loan Repayments.
(H) Due to the potential volatility of the market for tax-exempt obligations such
as the Note or Notes to be issued evidencing the Loan, the complexity of the transactions
relating to such Note or Notes and the uniqueness of the Program, it is in the best interest
of the Public Agency to deliver the Note or Notes to the Commission pursuant to the
Program by a negotiated sale pursuant to Section 218.385(1), Florida Statutes, allowing
the Public Agency to utilize the Program in which it participates from time to time and to
enter the market at the most advantageous time, rather than at a specified advertised date,
thereby permitting the Public Agency to obtain the best possible price, issuance costs and
interest rate for such Note or Notes.
SECTION 4. AGREEMENT TO PARTICIPATE IN PROGRAM.
Adoption of this Resolution will constitute an agreement of the Public Agency to
participate in the Program pursuant to the terms of the Loan Agreement.
SECTION 5. AUTHORIZATION OF LOAN AGREEMENT. In
connection with the Loan, the Public Agency hereby authorizes and directs the Chairman
to execute, and the Clerk to attest under the seal of the Public Agency, the Loan
Agreement, and to deliver the Loan Agreement to the Commission for its execution. All
of the provisions of the Loan Agreement, when executed and delivered by the Public
Agency as authorized herein and when duly authorized, executed and delivered by the
Commission, shall be deemed to be a part of this Resolution as fully and to the same
extent as if incorporated verbatim herein, and the Loan Agreement shall be in
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substantially the form attached hereto as Exhibit A, with such changes, amendments,
modifications, omissions and additions, including the date of such Loan Agreement, as
may be approved by the Chairman. Execution of the Loan Agreement by the Chairman
shall be deemed to be conclusive evidence of approval of such changes.
SECTION 6. TERMS OF LOAN. The Public Agency hereby approves of
the Loan in an aggregate principal amount of not exceeding $60,000,000 for the purposes
of providing the Public Agency with sufficient funds to finance the Project A-1. The
Chairman and the Clerk are hereby authorized to execute, seal and deliver on behalf of
the Public Agency a Loan Note or Notes and other documents, instruments, agreements
and certificates necessary or desirable to effectuate the Loan as provided in the Loan
Agreement. The Loan Notes shall reflect the terms of the Loan or draws made on
account of the Loan and shall be substantially in the form attached to the Loan
Agreement as Exhibit D. The County Manager shall determine the amount of funding of
the Loan in accordance with the terms of the Loan Agreement as shall be determined
necessary to finance the Project A-1. The repayment of the Loan or the draws made on
account of the Loan shall be made at such time or times as shall be determined by the
County Manager and shall be permitted by the Loan Agreement and set forth in the Loan
Notes; provided, however, the final maturity may not be later than five (5) years from the
date of issuance. The Loan is subject to mandatory prepayment in accordance with
Section 5.06 of the Loan Agreement. Draws made in regard to the Loan shall bear
interest at the Loan Rate in accordance with the terms of the Loan Agreement. The
Public Agency further agrees to make all Loan Repayments required of it pursuant to the
terms of the Loan Agreement. The letter of credit fee with respect to the Loan shall equal
such amount as may be agreed upon between the County Manager and the Bank so long
as such fee does not exceed 110 basis points
SECTION 7. AUTHORIZATION OF PROJECT A-1. The Public
Agency does hereby authorize Project A-1 as described herein and the reimbursement of
any costs incurred by the Public Agency with respect to Project A-1 within the prior 60
days that are approved by bond counsel to the Program.
SECTION 8. SECURITY FOR THE LOAN. The Public Agency's
obligation to repay the Loan will be secured by a pledge of and lien upon the Designated
Revenues in accordance with the terms of the Loan Agreement. The obligation of the
Public Agency to repay the Loan shall not be deemed a pledge of the faith and credit or
taxing power of the Public Agency and such obligation shall not create a lien on any
property whatsoever of or in the Public Agency other than the Designated Revenues.
SECTION 9. RESOLUTION TO CONSTITUTE CONTRACT. In
consideration of the making of the Loan by the Commission, this Resolution shall be
deemed to be and shall constitute a contract between (i) the Public Agency and (ii) the
Commission and the Bank.
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SECTION 10. GENERAL AUTHORITY. The members of the Board and
the officers, attorneys and other agents or employees of the Public Agency are hereby
authorized to do all acts and things required of them by this Resolution and the Loan
Agreement, or desirable or consistent with the requirements of this Resolution and the
Loan Agreement, for the full punctual and complete performance of all the terms,
covenants and agreements contained in this Resolution and the Loan Agreement, and
each member, employee, attorney and officer of the Public Agency or its Board is hereby
authorized and directed to execute and deliver any and all papers and instruments and to
do and cause to be done any and all acts and things necessary or proper for carrying out
the transactions contemplated by this Resolution and the Loan Agreement.
SECTION 11. SEVERABILITY. If any one or more of the covenants,
agreements or provisions herein contained shall be held contrary to any express provision
of law or contrary to the policy of express law, though not expressly prohibited, or
against public policy, or shall for any reason whatsoever be held invalid, then such
covenants, agreements or provisions shall be null and void and shall be deemed separable
from the remaining covenants, agreements or provisions and shall in no way affect the
validity of any of the other provisions hereof.
SECTION 12. REPEAL OF INCONSISTENT RESOLUTIONS. All
resolutions or parts thereof in conflict herewith which seek short-term financing of the
Project A-1 of the Program are hereby superseded and repealed to the extent of such
conflict.
SECTION 13. EFFECTIVE DATE. This Resolution shall take effect
immediately upon its adoption.
DULY ADOPTED, in Regular Session this 27th day of June, 2017.
COLL 404 LINTY, FLO ' 1 A
(SEAL)
Chairman, B s$,% of Count,mmissioners
ATTER Penny Taylo
Wight ;$rock,.Cler Atttet as to.. . rman's
By: Deputy Cl k ` signature only.
Approve a le orm and Legal
Sufficie y _ ;
.11
County A I!. r1 y
Jeffrey .1 atzkow
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EXHIBIT A
FORM OF LOAN AGREEMENT
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LOAN AGREEMENT
AMONG
FLORIDA LOCAL GOVERNMENT FINANCE COMMISSION
AND
COLLIER COUNTY, FLORIDA
AND
JPMORGAN CHASE BANK, N.A.
Dated as of , 2017
FLORIDA LOCAL GOVERNMENT FINANCE COMMISSION
POOLED COMMERCIAL PAPER LOAN PROGRAM
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TABLE OF CONTENTS
Pale
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS 3
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PUBLIC AGENCY
SECTION 2.01. REPRESENTATIONS AND WARRANTIES 13
ARTICLE III
LOAN TERM AND THE LOANS
SECTION 3.01. COMMENCEMENT OF LOAN TERM 16
SECTION 3.02. TERMINATION OF LOAN TERM 16
SECTION 3.03. THE LOANS. 16
SECTION 3.04. NOTICE OF DRAW 17
ARTICLE IV
LOAN TERM AND LOAN CLOSING REQUIREMENTS
SECTION 4.01. COMMENCEMENT DATE SUBMISSIONS 19
SECTION 4.02. CONDITIONS PRECEDENT TO LOANS AND DRAWS 19
SECTION 4.03. LOAN SUBMISSIONS 20
SECTION 4.04. DRAW SUBMISSIONS 20
ARTICLE V
LOAN REPAYMENTS
SECTION 5.01. PAYMENT OF LOAN REPAYMENTS 22
SECTION 5.02. CALCULATION OF LOAN RATE 24
SECTION 5.03. LOAN REPAYMENTS 25
SECTION 5.04. MAXIMUM LEGAL INTEREST RATE. 26
SECTION 5.05. COSTS OF ISSUANCE 26
SECTION 5.06. MANDATORY PREPAYMENT 27
SECTION 5.07. OBLIGATIONS UNCONDITIONAL 27
ARTICLE VI
SECURITY FOR LOANS AND PUBLIC AGENCY COVENANTS
SECTION 6.01. STATUS OF LOAN OBLIGATIONS 28
SECTION 6.02. SECURITY FOR LOAN REPAYMENTS 28
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SECTION 6.03. PLEDGED REVENUES 28
SECTION 6.04. COVENANT TO BUDGET AND APPROPRIATE 28
SECTION 6.05. PAYMENT COVENANT 30
SECTION 6.06. ADDITIONAL COVENANTS 30
ARTICLE VII
ASSIGNMENT AND PAYMENT BY THIRD PARTIES
SECTION 7.01. ASSIGNMENT BY COMMISSION 35
SECTION 7.02. ASSIGNMENT BY PUBLIC AGENCY 35
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
SECTION 8.01. EVENTS OF DEFAULT DEFINED 36
SECTION 8.02. NOTICE OF DEFAULT 37
SECTION 8.03. REMEDIES ON DEFAULT 37
SECTION 8.04. ATTORNEY'S FEES AND OTHER EXPENSES 38
SECTION 8.05. APPLICATION OF MONEYS 38
SECTION 8.06. NO REMEDY EXCLUSIVE; WAIVER, NOTICE 38
SECTION 8.07. ASSIGNMENT TO BANK 39
ARTICLE IX
EXCESS FUNDS
SECTION 9.01. EXCESS FUNDS 40
ARTICLE X
MISCELLANEOUS
SECTION 10.01. NOTICES 41
SECTION 10.02. BINDING EFFECT 42
SECTION 10.03. SEVERABILITY 42
SECTION 10.04. AMENDMENTS, CHANGES AND MODIFICATIONS 42
SECTION 10.05. EXECUTION IN COUNTERPARTS 42
SECTION 10.06. APPLICABLE LAW 43
SECTION 10.07. WAIVER OF JURY TRIAL 43
SECTION 10.08. BENEFIT OF NOTEHOLDERS; COMPLIANCE WITH
INDENTURE 43
SECTION 10.09. CONSENTS AND APPROVALS 43
SECTION 10.10. IMMUNITY OF OFFICERS, EMPLOYEES AND MEMBERS
OF COMMISSION 43
SECTION 10.11. CAPTIONS 43
SECTION 10.12. NO PECUNIARY LIABILITY OF COMMISSION 43
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SECTION 10.13. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND
HOLIDAYS 44
SECTION 10.14. RIGHT OF OTHERS TO PERFORM PUBLIC AGENCY'S
COVENANTS. 44
EXHIBIT A FORM OF PUBLIC AGENCY COUNSEL'S OPINION A-1
EXHIBIT B FORM OF PUBLIC AGENCY'S CERTIFICATE B-1
EXHIBIT C CREDIT FACILITY FEE CERTIFICATE C-1
EXHIBIT D FORM OF NOTE D-1
EXHIBIT E AGREEMENT RE: CONTINGENCY ACCOUNT E-1
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LOAN AGREEMENT
THIS LOAN AGREEMENT, dated as of , 2017 is entered into among
the FLORIDA LOCAL GOVERNMENT FINANCE COMMISSION (the
"Commission"), a legal entity and a public body corporate and politic created pursuant to
Part I of Chapter 163, Florida Statutes (the "Interlocal Act"), and COLLIER COUNTY,
FLORIDA (the "Public Agency"), a duly constituted political subdivision of the State of
Florida (the "State") and JPMORGAN CHASE BANK, N.A. (the "Bank"), a national
banking association.
WHEREAS, the Commission was created for the benefit of duly constituted
counties, municipalities and other public agencies as described in the Interlocal Act
(collectively, the "Public Agencies"), desiring to participate in a pooled commercial paper
loan program in order to obtain cost effective, short-term financing for acquiring,
constructing and equipping capital improvements and for other governmental needs; and
WHEREAS, the Commission has determined that there is substantial need within
the State for a pooled commercial paper loan program (the "Program") which will allow
loans to be made to Public Agencies in the State in order to provide funds to such Public
Agencies to enable them to acquire, construct and equip capital improvements and to
finance other governmental needs; and
WHEREAS, the Commission is authorized under the Interlocal Act to issue its
obligations to make loans in order to provide funds for such purposes; and
WHEREAS, the Commission has determined that the public interest will best be
served and that the purposes of the Interlocal Act can be satisfied by the Commission's
issuance of commercial paper notes in order to make loans in order to provide funds to
Public Agencies desiring to finance the cost of acquiring, constructing and equipping
capital improvements and, to the extent permitted by the terms of this Loan Agreement, to
finance other governmental needs; and
WHEREAS,in furtherance of the foregoing,the Commission shall issue, from time
to time, commercial paper notes to be known as "Florida Local Government Finance
Commission Pooled Commercial Paper Notes" (the "Notes"), pursuant to the terms of a
certain Indenture of Trust, dated as of June 6, 2011 between the Commission and the
Trustee (as defined herein) (such Trust Indenture, as amended or supplemented, is referred
to herein as the "Indenture"); and
WHEREAS, such Notes may be issued under the Indenture as two separate series
and shall be further designated as "Series A-1 (Governmental Issue)" and "Series B-1
(AMT Issue)"; and
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WHEREAS,pursuant to the authority of the Interlocal Act,the Commission desires
to loan, from time to time, to the Public Agency such amounts as shall be authorized herein
in order to enable the Public Agency to finance various capital improvements and other
governmental needs and to pay a pro rata share of the costs of issuing the aforementioned
Notes, and the Public Agency desires to borrow various amounts from the Commission
subject to the terms and conditions of and for the purposes set forth in this Loan Agreement;
and
WHEREAS, the Bank desires to provide its Credit Facility for credit and liquidity
support for the Program; and
WHEREAS, the Public Agency is authorized under and pursuant to Chapter 125,
Florida Statutes, the Interlocal Act and other applicable provisions of law to enter into this
Loan Agreement for the purposes set forth herein; and
WHEREAS, the Commission and the Public Agency have determined that the
provision of funds by the Commission to the Public Agency pursuant to the terms of this
Loan Agreement and the Indenture will assist in the development and maintenance of the
public welfare of the residents of the State and the areas served by the Public Agency, and
shall serve a public purpose by improving the health and living conditions, and providing
governmental services, facilities and programs and will promote the most efficient and
economical development of such services, facilities and programs;
NOW, THEREFORE, for and in consideration of the premises hereinafter
contained, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. Unless the context or use indicates another
meaning or intent, the following words and terms as used in this Loan Agreement shall
have the following meanings (or the meaning specified in the Section hereof or in the
document herein referenced), and any other words and terms not otherwise defined herein
which are defined in the Indenture shall have the meanings as therein defined.
"Accountant" or "Accountants" means an independent certified public
accountant or a firm of independent certified public accountants as to whom neither the
Commission nor the Bank makes a reasonable objection.
"Act" means, collectively, the Interlocal Act, Chapter 125, Florida Statutes, and all
other applicable provisions of law.
"Act of Bankruptcy" means a petition filed by or against the Public Agency
seeking relief as a debtor under the federal bankruptcy laws or under any other similar
applicable law or statute of the United States of America or of the State relating to
bankruptcy or insolvency.
"Actual Monthly Interest" means, with respect to all Loans of the Public Agency
funded from Commercial Paper Notes of a Series, the sum of the Daily Loan Rate times
the Daily Loan Balance for each actual day of the period with respect to which such
calculation is made.
"Additional Payments" means the payments required to be made by the Public
Agency pursuant to Sections 5.02(b), 5.02(c), 5.02(d), 5.05, 6.06(e) and 8.04 of this Loan
Agreement.
"Adjusted One-Month LIBOR" means the sum of 2.50%plus the quotient of(1)
the LIBOR on the immediately preceding Business Day for dollar deposits with a maturity
equal to one-month, divided by (2) one minus the "reserve requirement" applicable to
dollar deposits in the London interbank market with a maturity equal to one month.
"Administration Agreement" means that certain Program Administration
Agreement, dated as of June 6, 2011, between the Commission and the Administrator, as
amended and supplemented from time to time.
"Administrator" means the Florida Association of Counties, Inc., a Florida
nonprofit corporation, or such other program administrator selected by the Commission
and approved by the Bank in writing to administer the making, originating and
administration of the Loans or any portion thereof and to act as the Commission's agent as
set forth in the Administration Agreement.
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"Aggregate Monthly Investment Earnings" means the aggregate amount of
earnings credited to the applicable Interest Payment Account from the investment of the
daily balances in the Accounts relating to a Series of Commercial Paper Notes for each day
of the actual number of days of the period with respect to which such calculation is made.
"Aggregate Note Interest" means, with respect to a Series of Commercial Paper
Notes, the aggregate amount of interest paid or accrued on all of the Commercial Paper
Notes of such Series on the basis (year containing 365/366 days or actual number of days
elapsed) set forth in such Commercial Paper Notes during the period with respect to which
such calculation is made and if the principal of any Commercial Paper Note is paid with a
draw on the Credit Facility which has not been reimbursed, the interest accruing on the
Public Agency's Proportionate Share of such drawing in accordance with the provisions of
the Credit Agreement until such drawing has been reimbursed.
"Aggregate Portfolio Balance" means the sum of Daily Loan Balances for the
Public Agency and all other government entities participating in the Program under the
same Series of Commercial Paper Notes for each day of the actual number of days of the
period with respect to which such calculation is made.
"Alternate Credit Facility" has the meaning given such term in the Indenture.
"Arbitrage Certificate" means the Certificate as to Arbitrage and Certain Other
Tax Matters of the Public Agency and any reaffirmations or renewals thereof or new
Certificate as to Arbitrage and Certain Other Tax Matters, all as described in Section
6.06(j)(ii) hereof.
"Authorized Officer" means, when used with respect to the Commission, the
Chairman of the Board of Directors thereof and such other designated member, agent or
representative as may hereafter be selected by Commission resolution, when used with
respect to the Administrator, shall mean the person or persons designated by the
Administrator, and, when used with reference to a Public Agency, means the person or
persons designated by the Public Agency in writing to the Administrator and the
Commission and, when used with reference to an act or document, also means any other
person authorized by resolution to perform such act or sign such document.
"Bank" means JPMorgan Chase Bank, N.A., a national banking association, as
issuer of the Letter of Credit, and any successor thereof, and any issuer or issuers of an
Alternate Credit Facility with respect to the Commercial Paper Notes.
"Bank Rate" means the interest rate charged by the Bank to the Commission
pursuant to Section 2.16(b) of the Credit Agreement for any draws made against the Credit
Facility to pay maturing Commercial Paper Notes which could not be remarketed by the
Dealer. Initially, the Bank Rate shall mean (1) for the first 120 days such Bank Rate is
applicable with respect to a Loan,the Base Rate, (2) after the first 120 days such Bank Rate
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is applicable with respect to a Loan through the stated expiration date of the Credit Facility,
the Base Rate plus 1.00%, and (3) thereafter, the Base Rate plus 2.00%. Notwithstanding
the foregoing,the Bank and the Commission may amend the definition of Bank Rate under
the Credit Agreement from time to time without the consent of the Public Agency.
"Base Rate" means the higher of (1) the Loan Rate, (2) the Prime Rate, (3)
Adjusted One Month LIBOR, and (4) 7.5%; provided, however, in the event that the short
term ratings of the Bank from Standard & Poor's Ratings Group and Moody's Investors
Service fall below "A-1" and "P-1," respectively, the percentage set forth in clause (3)
herein shall be 4.5% for the first 120 days the Base Rate is applicable.
"Board" means the governing body of the Public Agency.
"Bond Counsel" means Nabors, Giblin&Nickerson, P.A., Tampa, Florida, or any
other nationally recognized bond counsel acceptable to the Commission and the
Administrator.
"Business Day" means any day excluding Saturday, Sunday, any other day on
which banks in New York City or the cities in which the designated corporate trust office
of the Trustee or the office of the Bank at which drawings may be presented under the
Letter of Credit are located are lawfully closed and any day on which the Depository Trust
Company is closed.
"Code" means the Internal Revenue Code of 1986, as amended, and the regulations
promulgated or proposed thereunder.
"Commencement Date" means , 2017 which is the date when the term
of this Loan Agreement begins and the obligation of the Public Agency hereunder to make
Loan Repayments, if any, commences.
"Commercial Paper Notes" or "Notes" means any Outstanding Florida Local
Government Finance Commission Pooled Commercial Paper Notes issued from time to
time pursuant to the Indenture. The term "Commercial Paper Notes" shall include both
Series of Commercial Paper Notes issued pursuant to the Indenture, unless the context
indicates otherwise.
"Commission" means the Florida Local Government Finance Commission, and
any assigns or successors in function thereto.
"Commitment" shall have the meaning ascribed thereto in the Credit Agreement,
as it may be modified from time to time pursuant to the Credit Agreement.
"Cost" or "Costs," to the extent permitted by law, as the same relates to a Project,
shall mean (1) the cost of physical construction, reconstruction or completion; (2) the cost
of acquisition or purchase; (3) the cost of all labor, materials, machinery and equipment;
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(4) the cost of land and interests therein, property rights, easements and franchises of any
nature whatsoever; (5) the cost of any indemnity and surety bonds and premiums for
insurance during construction; (6) all interest due to be paid on account of this Loan
Agreement and other obligations relating to such Project during the period of construction
and for such period of time subsequent to completion of acquisition and construction as the
Public Agency deems appropriate; (7) engineering, financial, legal and other consultant
fees and expenses; (8)the cost of plans and specifications, construction plans, surveys and
estimates of costs; (9)payments, when due (whether at the maturity of principal or the due
date of interest or upon redemption) on any interim or temporary indebtedness incurred for
any portion of such Project; (10) amounts required for reserve funds; (11) costs and
expenses related to the Loan Agreement, issuance of the Commercial Paper Notes or other
indebtedness related to such Project, all financing charges, and any expenses related to any
liquidity facility or credit facility; (12) Additional Payments; and (13) any other costs and
expenses properly attributable to acquisition, construction or equipping of such Project,
and such other expenses as may be necessary or incidental to this Loan Agreement and the
issuance of the Commercial Paper Notes; and shall include reimbursement to the Public
Agency for any moneys advanced for any costs incurred by the Public Agency in
connection with any such items of cost.
"Counsel" means an attorney or firm of attorneys duly admitted to practice law
before the highest court of any state and, without limitation, may include legal counsel for
the Commission, the Public Agency, the Trustee, the Dealer or the Bank.
"Credit Agreement" means that certain Reimbursement Agreement, dated as of
June 6, 2011, between the Commission and the Bank, including any amendments and
supplements thereto, and any agreement pursuant to which an Alternate Credit Facility is
issued.
"Credit Facility" means the Letter of Credit issued by the Bank, or any Alternate
Credit Facility.
"Daily Investment Balance" means that portion of the amounts on deposit in the
Accounts relating to a Series of Commercial Paper Notes which are credited by the Trustee
to each public agency in accordance with the provisions of Section 3.03(f)of the Indenture
as of any day with respect to which such calculation is made.
"Daily Investment Credit Rate" means the quotient of: (1) the Aggregate
Monthly Investment Earnings, divided by(2)the sum of Investment Balances with respect
to loans funded from all Series of Commercial Paper Notes for the period with respect to
which such calculation is made.
"Daily Loan Balance" means the principal balance of all Loans of the Public
Agency funded from Commercial Paper Notes of a Series outstanding on the day with
respect to which such calculation is made.
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"Daily Loan Rate" means, with respect to a Series of Commercial Paper Notes,
the quotient of: (1) the Aggregate Note Interest, divided by (2) the Aggregate Portfolio
Balance for the period with respect to which such calculation is made.
"Dealer" means JPMorgan Chase Securities Inc. acting in its capacity as rate
setting agent and dealer for the Commercial Paper Notes pursuant to the Dealer Agreement,
or its successors and assigns or any other entity or entities designated by the Commission
in writing.
"Dealer Agreement" means that certain Commercial Paper Dealer Agreement,
dated as of June 6, 2011 between the Commission and the Dealer, and any and all
modifications, alterations, amendments or supplements thereto, and any other Dealer
Agreement entered into by the Commission and the Dealer with respect to the Commercial
Paper Notes.
"Debt" of the Public Agency means at any date (without duplication) all of the
following to the extent that they are general obligations of the Public Agency or are payable
in whole or in part from Non-Ad Valorem Revenues: (1) all obligations of the Public
Agency for borrowed money or evidenced by bonds, debentures, notes or other similar
instruments; (2) all obligations of the Public Agency to pay the deferred purchase price of
property or services, except trade accounts payable under normal trade terms and which
arise in the ordinary course of business; (3) all obligations of the Public Agency as lessee
under capitalized leases; and(4) all indebtedness of other Persons to the extent guaranteed
by, or secured by Non Ad-Valorem Revenues of, the Public Agency.
"Default" means any of the events specified in Section 8.01 hereof which with the
passage of time or giving of notice or both would constitute an Event of Default hereunder.
"Default Rate" means the Base Rate plus 4.00% per annum; provided, however,
the Default Rate shall never exceed the Maximum Legal Rate.
"Designated Revenues" shall mean (1) Public Agency Moneys, (2) the proceeds
of the Loans pending the application thereof, and (3) the Pledged Revenues, if any, which
shall secure the Loan Repayments as provided in Section 6.03 hereof.
"Draw" means the borrowing of money under this Loan Agreement in accordance
with Article III hereof.
"Draw Date" means, with respect to Loans financed with proceeds of the
Commercial Paper Notes, the date or dates upon which Draws are funded, which dates
shall be agreed to by the Bank,the Administrator and the Public Agency prior to each Draw
Date.
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"Draw Request" means the request by the Public Agency to the Commission for a
Draw under its Loan and the corresponding authentication and delivery of a Commercial
Paper Note or Commercial Paper Notes of a particular Series.
"Estimated Monthly Interest" means, for each calendar month, (1)the Estimated
Monthly Rate times the Daily Loan Balance of all Loans of the Public Agency funded from
Commercial Paper Notes of a Series which are expected to be outstanding during the
calendar month with respect to which such calculation is made, less (2) the sum of(a) the
applicable Monthly Investment Credit, plus (b) the Monthly Excess Credit (based on the
second prior calendar month). Notwithstanding the foregoing, the Administrator shall
calculate the Estimated Monthly Interest for any period occurring before the first Interest
Calculation Period as it shall determine in its sole discretion.
"Estimated Monthly Rate" means, for each calendar month, 110% of the sum of
the Daily Loan Rates for Commercial Paper Notes of a Series during the immediately
preceding Interest Calculation Period. Notwithstanding the foregoing, the Administrator
may, at any time and from time to time, recalculate the Estimated Monthly Rate in
accordance with the requirements of Section 3.03(b) of the Indenture.
"Event of Default" has the meaning given such term in Section 8.01 of this Loan
Agreement.
"Expiration Date" means the scheduled date of expiration of the Credit Facility as
the same may be extended from time to time pursuant to the terms thereof.
"Holders" or "Noteholders" means the registered owners of the Outstanding
Commercial Paper Notes.
"Indenture" means that certain Indenture of Trust, dated as of June 6, 2011,
between the Commission and the Trustee, as the same may be amended and supplemented
from time to time.
"Interest Calculation Period" means the period commencing on the day(whether
or not a Business Day) next succeeding the last day of the previous Interest Calculation
Period and ending on the fifteenth (15th) day of the next succeeding calendar month;
provided, however, that the first Interest Calculation Period shall be the period
commencing on the first sixteenth (16th) day of a calendar month which occurs after the
date of initial issuance of Commercial Paper Notes hereunder and ending on fifteenth
(15th) day of the next succeeding calendar month.
"Interlocal Act" means Part I of Chapter 163, Florida Statutes.
"Interlocal Agreement" means that Interlocal Agreement, dated as of February 19,
1991, among Brevard County, Florida, Collier County, Florida and Sarasota County,
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Florida, pursuant to which the Commission was created and the Pooled Commercial Paper
Loan Program was authorized, as amended and supplemented from time to time.
"Investment Balances" means the sum of the daily balances in the Accounts
relating to a Series of Commercial Paper Notes for each day of the actual number of days
of the period with respect to which such calculation is made.
"Letter of Credit" means the irrevocable letter of credit issued by the Bank under
the terms and conditions set forth in the Credit Agreement in order to secure the payment
of principal of and interest on the Commercial Paper Notes.
"LIBOR" means for any interest period, the rate for U.S. dollar deposits with a
maturity equal to the same interest period, as reported on Reuters Screen LIBOR01 page
as of 11:00 AM London time on the second London business day prior to the first date of
such interest period. If the foregoing rate is unavailable for any reason, then the rate shall
be determined by the Bank from any other successor or substitute page of the Moneyline
Telerate Service or any other publication or interest rate reporting service of recognized
standing which provides rate quotations comparable to those currently provided on such
page, as determined by the Bank from time to time for purposes of providing quotations of
interest rates applicable to U.S. dollar deposits in the London interbank market.
"Loan" means the loan or loans made, from time to time, by the Commission to
the Public Agency pursuant to Section 3.03 hereof. Each loan shall be made to finance or
refinance a Project or to finance Public Agency Expenses approved by the Administrator
and the Bank in accordance with Section 4.04 hereof.
"Loan Agreement" means this Loan Agreement, as the same may be amended and
supplemented from time to time.
"Loan Amounts" means the amount of Loans Outstanding at any time of
calculation.
"Loan Note" means a note of the Public Agency evidencing the obligations
incurred hereunder by the Public Agency on account of a Draw made in regard to a Loan,
which shall be in substantially the form provided in Exhibit D hereto.
"Loan Rate" means the rate of interest the Loan shall bear, which is described in
Sections 5.01 and 5.02 hereof; provided, however, the Loan Rate shall never exceed the
Maximum Legal Rate.
"Loan Repayments" or "Repayments" means the payments of principal and
interest on the Loan Amounts payable by the Public Agency pursuant to the provisions of
this Loan Agreement and all other payments, including Additional Payments, payable by
the Public Agency pursuant to the provisions of this Loan Agreement.
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"Loan Term" means the term of each Loan as provided in Sections 4.02 and 4.03
hereof.
"Maximum Legal Rate" means (1) in the case of a Loan Note, the maximum rate
of interest such Loan Note may bear under applicable law and, (2) in the case of
Commercial Paper Notes,the maximum rate of interest such Commercial Paper Notes may
bear under applicable law; provided, however, that the rate determined under clause (2)
shall never be greater than the rate determined under clause (1).
"Maximum Loan Amount" means the maximum amount of Loans which at any
time is permitted to be outstanding hereunder as provided in, and subject to the terms and
conditions of, Section 3.03 hereof.
"Monthly Excess Credit" means, for a month, with respect to all Loans of the
Public Agency funded from Commercial Paper Notes of a Series the difference (whether
or not less than zero) between the Estimated Monthly Interest and the Actual Monthly
Interest for the month with respect to which such credit is given.
"Monthly Investment Credit" means, for a month, with respect to the Public
Agency, the sum of the Daily Investment Credit Rates times the Daily Investment Balance
for each day of the actual number of days of the month with respect to which such
calculation is made.
"Non-Ad Valorem Revenues" shall mean all legally available revenues of the
Public Agency derived from any source whatsoever other than ad valorem taxation on real
and personal property, which are legally available to make the Loan Repayments required
herein.
"Non-Current Loan" means all of the Loans of the Public Agency funded from
Commercial Paper Notes of a Series, during any period the Public Agency is in default in
the payment, when due, of the principal of or interest on any Loan of the Public Agency,
whether by acceleration or otherwise.
"Outstanding," in the context of the Commercial Paper Notes, has the meaning
given such term in the Indenture. "Outstanding," in the context of the Loans, means the
aggregate Loan Amounts less any Loan Amounts for which moneys have been deposited
with the Trustee for the repayment thereof.
"Person" means an individual, a corporation, a partnership, an association, a trust
or any other entity or organization including a government or political subdivision or an
agency or instrumentality thereof.
"Pledged Revenues" shall mean the revenues, if any, of the Public Agency
designated as added security for the Loan Repayments pursuant to Section 6.03 hereof.
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"Pooled Commercial Paper Loan Program" or "Program" means the pooled
commercial paper loan program of the Commission authorized by the Interlocal Agreement
and a resolution of the Commission.
"Prime Rate" means for any day the greater of:
(1) the rate of interest announced by the Bank from time to time as its
prime commercial rate for U.S. dollar loans, or equivalent, as in effect on such day,
with any change in the Prime Rate resulting from a change in said prime commercial
rate to be effective as of the date of the relevant change in said prime commercial
rate; or
(2) the sum of (a) the rate determined by the Bank to be the average
(rounded upwards, if necessary, to the next higher 1/100 of 1%) of the rates per
annum quoted to the Bank at approximately 10:00 a.m. (New York time)(or as soon
thereafter as is practicable) on such day (of, if such day is not a Business Day, on
the immediately preceding Business Day) by two or more Federal funds brokers
selected by the Bank for the sale to the Bank at face value of Federal funds in an
amount equal or comparable to the principal amount owed to the Bank for which
such rate is being determined,plus (b) 1/2 of 1% (0.50%).
"Program Termination Date" shall have the meaning given such term in the
Indenture.
"Project" or "Projects" shall refer to the development, acquisition, construction
and equipping of certain improvements and public facilities in the Public Agency. The
Project or Projects to be financed or refinanced by each Loan shall be described in the
resolution or ordinance of the Public Agency authorizing such borrowing, as the same may
be amended from time to time by the Board.
"Proportionate Share" means, at any time of calculation, a fraction the numerator
of which is the Outstanding unpaid principal balance of the Loan Amounts of the Public
Agency under this Loan Agreement and the denominator of which is the sum of the
Outstanding unpaid principal balance of all Loan Amounts of all Public Agencies under
the loan agreements funded with the proceeds of the Commercial Paper Notes (whether
such balances are unpaid because they are not then due or because they are past-due and in
default).
"Public Agency" means the signatory to this Loan Agreement which is a duly
constituted political subdivision of the State, which Public Agency is using the Loan
proceeds to finance, refinance and/or reimburse the Costs of Projects or Public Agency
Expenses.
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"Public Agency Commitment" means that portion of the Commitment which is
allocable or attributable to Loans of the Public Agency.
"Public Agency Expenses" means, to the extent permitted by the terms of this
Loan Agreement, expenses of the Public Agency which may include operating expenses
or working capital of the Public Agency. Public Agency Expenses to be financed or
refinanced by a Loan shall be described in the resolution or ordinance of the Public Agency
authorizing such borrowing, as the same may be amended from time to time by the Board.
"Public Agency Moneys" shall mean the moneys budgeted and appropriated by
the Public Agency from Non-Ad Valorem Revenues for payment of the Loan Repayments
pursuant to the Public Agency's covenant to budget and appropriate such Non-Ad Valorem
Revenues contained in Section 6.04 of this Loan Agreement.
"Repayment Schedule" means the schedule of repayments approved by the
Administrator pursuant to Section 4.02 hereof, as the same may be modified from time to
time in accordance with the terms of this Agreement, including Sections 3.04(c) and
5.01(c) hereof.
"Series" means the Series A Notes and the Series B Notes and any other series of
Commercial Paper Notes authorized to be issued pursuant to the Indenture.
"Series A Notes" means the "Florida Local Government Finance Commission
Pooled Commercial Paper Notes, Series A-1 (Governmental Issue)" issued pursuant to the
Indenture.
"Series B Notes" means the "Florida Local Government Finance Commission
Pooled Commercial Paper Notes, Series B-1 (AMT Issue)" issued pursuant to the
Indenture.
"State" means the State of Florida.
"Trustee" means U.S. Bank,National Association, acting in its capacity as Trustee
under the Indenture, or any successor trustee or co-trustee.
"Trust Estate" has the meaning given such term in the Indenture.
"Written" or "in writing" shall mean any form of written communication or a
communication by means of telex, facsimile transmission device, telegraph or cable.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
PUBLIC AGENCY
SECTION 2.01. REPRESENTATIONS AND WARRANTIES. The Public
Agency represents and warrants for the benefit of the Commission, the Administrator, the
Trustee, the Bank and the Holders as follows:
(a) Organization and Authority. The Public Agency is located in the State, is
duly organized and validly existing as a political subdivision of the State and has all
requisite power and authority to carry out the transactions contemplated hereby.
(b) Full Disclosure. There is no fact that the Public Agency has not specifically
disclosed in writing to the Commission, the Administrator and the Bank, prior to the date
of its execution hereof, that materially and adversely affects or, so far as the Public Agency
can now foresee, that will materially adversely affect, the financial condition of the Public
Agency, the Non-Ad Valorem Revenues, the Designated Revenues or the ability of the
Public Agency to perform its obligations under this Loan Agreement. To the best
knowledge of the Public Agency, the financial statements, and any other written statement
furnished by the Public Agency to the Commission, the Administrator and the Bank, do
not contain any untrue statement of a material fact or omit to state a material fact necessary
to make the statements contained therein or herein not misleading, and since the date of
such financial statements there has been no material adverse changes in the financial
condition of the Public Agency. There is no fact known to the Public Agency which the
Public Agency has not disclosed to the Commission, the Administrator and the Bank in
writing which materially adversely affects the financial condition of the Public Agency.
(c) Pending Litigation. Except as described in writing by the Public Agency to
the Commission, the Administrator and the Bank, there are no proceedings pending, or to
the best knowledge of the Public Agency threatened, against or affecting the Public
Agency, in any court or before any governmental authority or arbitration board or tribunal
that, if adversely determined, would materially and adversely affect the financial condition
of the Public Agency, the Non-Ad Valorem Revenues, the Designated Revenues or
existence or powers or ability of the Public Agency to enter into and perform its obligations
under this Loan Agreement.
(d) Borrowing Legal and Authorized. The execution and delivery of this Loan
Agreement and the Loan Notes, the consummation of the transactions provided for in this
Loan Agreement, the security for Loan Repayments provided for herein, and compliance
by the Public Agency with the provisions of this Loan Agreement:
(i) are within the powers of the Public Agency and have been duly and
effectively authorized by all necessary action on the part of the Public Agency;
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(ii) do not require approval by referendum of the qualified electors of the
Public Agency (except to the extent such referendum has been heretofore held and
has approved the same); and
(iii) do not and will not (A) conflict with or result in any breach of any of
the terms, conditions or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Public Agency (other than the liens created hereby) pursuant to any
indenture, loan agreement or other agreement or instrument to which the Public
Agency is a party or by which the Public Agency, its properties or operations may
be bound, or(B) with the giving of notice or the passage of time or both, constitute
a breach or default of any such loan agreement, indenture or other agreement or
instrument or so result in the creation or imposition of any such lien, charge, or
encumbrance (other than the liens created hereby), or (C) result in any violation of
the provisions of the Act, or any laws, ordinances,governmental rules or regulations
or court orders to which the Public Agency, its properties or its operations may be
bound.
(e) No Defaults. No event has occurred and no condition exists that constitutes
an Event of Default, or which with the passage of time or giving of notice, or both, would
constitute an Event of Default.
(1) Governmental Consent. The Public Agency has obtained all permits,
approvals and findings of non-reviewability required by any governmental body or
otherwise for its participation in the Pooled Commercial Paper Loan Program. The Public
Agency has complied with all applicable provisions of law requiring any notification,
declaration, filing or registration with any court, agency or other governmental body or
officer in connection with its participation in the Pooled Commercial Paper Loan Program.
The Public Agency's participation in the Pooled Commercial Paper Loan Program and the
execution and delivery of this Loan Agreement is consistent with, and does not violate or
conflict with, the terms of any such court, agency or other governmental consent, order or
other action which is applicable thereto.
(g) Binding Obligation. This Loan Agreement is, and each of the Loan Notes
will be, a legal, valid and binding obligation and agreement of the Public Agency,
enforceable against the Public Agency in accordance with its terms except that the
enforceability hereof may be limited by laws relating to the bankruptcy or insolvency of
the Public Agency or other similar laws affecting creditors' rights generally or by general
principles of equity.
(h) Compliance with Act. All agreements and transactions provided for herein
or contemplated hereby are in full compliance with the terms of the Act.
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(i) Certificates and Resolutions. All resolutions and certificates subsequently
adopted or executed, as the case may be, by the Public Agency in connection with and
pursuant to the provisions of this Loan Agreement shall be incorporated herein by
reference. Any resolution subsequently adopted by the Public Agency authorizing the
issuance of any Loan Note hereunder shall be deemed to be a contract between the Public
Agency and the Commission with respect to such Loan Note.
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ARTICLE III
LOAN TERM AND THE LOANS
SECTION 3.01. COMMENCEMENT OF LOAN TERM. The Public
Agency's obligations under this Loan Agreement shall commence on the Commencement
Date.
SECTION 3.02. TERMINATION OF LOAN TERM. The Public Agency's
obligations under this Loan Agreement shall terminate after(a)payment in full of all Loan
Repayments, including Additional Payments and other payments due hereunder, and (b)
the Public Agency shall provide notice to the Administrator, the Trustee, the Dealer and
the Bank of its desire to terminate its obligations hereunder; provided, however, that all
covenants and obligations hereunder specified to so survive shall survive the termination
of this Loan Agreement and the payment in full of all amounts due hereunder. Upon
termination of the Public Agency's obligations hereunder, the Commission, the
Administrator,the Bank and the Trustee shall, upon request by the Public Agency, deliver,
or cause to be delivered, to the Public Agency an acknowledgment thereof, subject to the
proviso set forth in the preceding sentence. During such time as no Loans are Outstanding
hereunder and all payments have been made hereunder, the covenants, agreements and
representations made by the Public Agency shall not be binding, except as otherwise
expressly provided herein.
SECTION 3.03. THE LOANS. (a) The Commission hereby agrees to make
Loans to the Public Agency from time to time, in accordance with the terms hereof, in an
aggregate amount not to exceed $100,000,000; provided, however, such amount may be
increased or decreased in accordance with the provisions hereof; provided, further, no
Draws for a Loan shall be made after the Administrator determines that such Draw shall
cause the aggregate principal amount of Commercial Paper Notes Outstanding and interest
thereon to the stated maturity dates thereof to exceed the Commitment available under the
Credit Facility. The Maximum Loan Amount may be increased by approval of the
Commission and the Bank and shall be the aggregate amount of all Loans authorized by
the Commission and the Bank to be Outstanding hereunder at any one time, subject to the
terms and conditions set forth herein. The Maximum Loan Amount may be decreased at
any time upon written notice delivered by the Bank to the Public Agency and the
Administrator that,in the Bank's judgment,it has determined that it would not then approve
a Draw by such Public Agency for any reason, including, but not limited to, a material
decline of the financial condition of the Public Agency; provided, however, such decrease
in the Maximum Loan Amount shall have no effect on the outstanding amount of Loans
made to the Public Agency. Loans shall be subject to approval by the Administrator and
the Bank in accordance with the provisions of Section 4.02 hereof. Draws which have been
approved by the Administrator pursuant to Section 4.02 hereof and by the Bank pursuant
to Section 3.03(b) hereof and for which all documentation has been submitted pursuant to
Sections 4.03 and 4.04 hereof may be made by the Public Agency upon notice pursuant to
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a Draw Request to the Administrator and the Bank as provided in Section 3.04 hereof. The
proceeds of each Loan shall forthwith be used to finance, refinance or reimburse the Public
Agency for the costs of a Project or Projects or for Public Agency Expenses, in each case
as approved by the Administrator and the Bank in accordance with Section 4.02 hereof. A
Loan which shall be used to finance Public Agency Expenses shall be made only if the
Administrator and the Bank are in possession of an opinion of Bond Counsel to the effect
that utilization of such Loan for such purposes is permitted by the Act. The Loan shall be
repaid in accordance with the provisions of Articles IV and V hereof.
(b) The Maximum Loan Amount described in Section 3.03(a) hereof is not a
commitment by the Bank to approve an increase in the amount of the Commitment or to
approve any Draw hereunder. Each Draw which the Commission agrees to make to the
Public Agency is subject to Bank review and an increase in the Commitment required in
order to make the Draw may be rejected by the Bank in its sole discretion. No one shall
have recourse against the Bank in the event (i) the Bank rejects a request to increase the
Commitment available under the Credit Facility, (ii)the Public Agency receives any notice
from the Bank pursuant to Section 3.03(a) hereof of a decrease of the Maximum Loan
Amount or (iii) the Public Agency receives any notice from the Bank pursuant to Section
5.06 that the Expiration Date will not be extended or that any portion of the Public Agency
Commitment will not be extended.
(c) In order to obtain an agreement from the Bank to approve all the Draws to
be made under a Loan or Loans to be made by the Commission pursuant to the terms hereof
and accordingly increase the Commitment under the Credit Facility, the Public Agency
may enter into an agreement with the Bank whereby the Bank will agree to such increase
in the Commitment upon payment, or agreement for payment, of a commitment fee or fees.
The amount of the commitment fee or fees and the terms of the commitment shall be
mutually agreed upon by the Bank and the Public Agency. The Administrator shall receive
a copy of any such agreement. The amount of such commitment fee or fees shall be
reflected in a certificate substantially in the form of Exhibit C hereto.
SECTION 3.04. NOTICE OF DRAW. (a) At least sixty (60) days (or such
shorter period of time as may be agreed to by the Public Agency, the Bank and the
Administrator)prior to a Draw Date on which the Public Agency desires to make the initial
Draw on account of a Loan it shall submit to the Administrator and the Bank for review
and approval pursuant to Section 4.02 hereof(i) a description of the Project or Projects (or
the Public Agency Expenses)to be financed or refinanced by such Loan, (ii)the amount of
the Loan, and (iii)the Repayment Schedule of the Loan. At or prior to the time of making
the initial Draw for a Loan, the Public Agency shall also submit the documentation
described in Section 4.03 hereof.
(b) In the case of Draws which have been approved in accordance with the
provisions of Section 4.02 hereof,the Public Agency shall give the Administrator,the Bank
and the Dealer a Draw Request at least forty-five(45)days prior to the Draw Date on which
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it wants to make such Draw (or such shorter period of time as may be agreed to by the
Public Agency, the Bank and the Administrator). The Draw shall be made in accordance
with Section 4.02 hereof. Such Draw Request shall state (i) the amount of the Draw, (ii)
the Draw Date, (iii)the purpose of the Draw, (iv)the Series of Commercial Paper Notes to
be used to fund the Draw, (v) the information required by Section 4.04(f) hereof and any
other information required by the Bank, and (vi) the Repayment Schedule for the Draw
(which shall be in compliance with the Repayment Schedule approved by the
Administrator pursuant to Section 4.02 hereof).
(c) Loan Repayments shall be made in accordance with the Repayment Schedule
approved pursuant to Section 4.02 hereof; provided, however, the Public Agency may
repay all or a portion of a Loan upon at least forty-five (45) days (or such shorter period of
time as may be agreed to by the Public Agency, the Bank and the Administrator) written
notice to the Administrator, the Dealer and the Bank, but only to the extent the
Administrator determines that there will be sufficient Commercial Paper Notes coming due
at such time of requested prepayment so as to permit such contemporaneous redemption of
an equal principal amount of Commercial Paper Notes; and, provided further, each Loan
or any portion thereof shall also be subject to mandatory prepayment pursuant to Section
5.06 hereof. The Repayment Schedule may be modified at any time upon written consent
of the Administrator and the Bank. In the event of a failure to remarket Commercial Paper
Notes,the Repayment Schedule shall be deemed to be modified to conform to the schedule
of repayments required pursuant to the terms of Section 2.16(a)(iv)(C) of the Credit
Agreement. In the event a Repayment Schedule shall be extended to a date later than the
originally scheduled repayment date or dates, the Credit Facility fees and charges for that
portion of the Commitment related to the Loan for which such Repayment Schedule was
extended shall be as agreed to by the Bank and the Public Agency. Any changes to the
Repayment Schedule, other than changes required by Section 2.16(a)(iv)(C) of the Credit
Agreement, shall be reflected in a resolution adopted by the Public Agency approving the
Loan relating thereto;provided,however, such changes shall take effect in accordance with
the terms hereof and of the Credit Agreement.
(d) Draws on a Loan shall be made only to the extent such Draw shall not cause
the aggregate principal amount of Commercial Paper Notes Outstanding and interest
thereon to stated maturity to exceed the Commitment.
(e) A copy of all information relating to Draws submitted to the Administrator
by the Public Agency pursuant to the terms hereof shall be sent by the Administrator to the
Bank within five (5) Business Days of receipt thereof.
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ARTICLE IV
LOAN TERM AND LOAN CLOSING
REQUIREMENTS
SECTION 4.01. COMMENCEMENT DATE SUBMISSIONS. On or before
the execution of this Loan Agreement,the Public Agency shall have caused to be delivered
to the Administrator, the Bank and Bond Counsel the following items in form and
substance acceptable to the Administrator, the Bank and Bond Counsel:
(a) An opinion of the Public Agency's Counsel or Bond Counsel regarding the
due authorization, validity and enforceability of this Loan Agreement and the due adoption
of the resolution or ordinance of the Public Agency authorizing the execution and delivery
of this Loan Agreement (enforceability may be subject to standard bankruptcy exceptions
and the like); provided such opinion may be delivered at the time of the first Draw on the
initial Loan;
(b) A certified resolution or ordinance of the Public Agency, authorizing the
execution and delivery of this Loan Agreement;
(c) Approval of the Public Agency as a participant in the Pooled Commercial
Paper Loan Program by the Bank and approval by the Bank of this Agreement and
Designated Revenues; and
(d) Such other certificates, opinions, documents and information as the
Administrator, the Bank or Bond Counsel may reasonably require.
SECTION 4.02. CONDITIONS PRECEDENT TO LOANS AND DRAWS.
Each Loan made to a Public Agency pursuant to the terms hereof shall be subject to
approval by the Commission or the Administrator, acting on behalf of the Commission, in
its sole discretion, of(a) the Project or Projects or Public Agency Expenses to be funded
from the proceeds of the Loan, (b)the Loan Amount applicable to such Loan, (c)the Series
of Commercial Paper Notes to be used to make the Loan, and(d) the Repayment Schedule
of such Loan. The Repayment Schedule and Loan Amount must be approved by the Bank.
The Repayment Schedule may be amended from time to time subject to the provisions of
Sections 3.04(c) and 5.01(b) and (c) hereof. The Repayment Schedule shall also be
amended, by notice from the Administrator or the Bank to the Public Agency and the
Trustee,to the extent necessary to amortize the Loan in accordance with Section 2.16(a) of
the Credit Agreement. Approval by the Administrator shall be evidenced by the certificate
of an Authorized Officer thereof. Each Draw shall be subject to the provisions of Section
3.03(b) hereof relating to Bank approval of the increase in the Commitment which is a
condition precedent to each such Draw.
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SECTION 4.03. LOAN SUBMISSIONS. At or before the time of making the
initial Draw for each Loan,the Public Agency shall provide to the Administrator,the Bank
and Bond Counsel the following documents each dated the date such Draw is made:
(a) A certified resolution or ordinance of the Public Agency, authorizing such
Loan and authorizing the Project or Projects or Public Agency Expenses to be funded from
proceeds of the Loan;
(b) An opinion of the Public Agency's Counsel and/or Bond Counsel in form and
substance acceptable to the Administrator and the Bank substantially in the form of Exhibit
A to this Loan Agreement;provided,however,that the Administrator may permit variances
in such opinion from the form or substance of such Exhibit A,with the consent of the Bank,
if, in the judgment of the Administrator, such variance is not to the material detriment of
the interests of the holders;
(c) A certificate of the officials of the Public Agency who sign this Loan
Agreement substantially in the form of Exhibit B to this Loan Agreement; provided,
however, that the Administrator may permit variances in such certificate from the form or
substance of Exhibit B, with the consent of the Bank, if, in the judgment of the
Administrator, such variance is not to the material detriment of the interests of the holders;
(d) This executed Loan Agreement;
(e) An Arbitrage Certificate in form and substance satisfactory to Bond Counsel;
(f) Approval of the Administrator and the Bank required by Section 4.02 hereof;
(g) The Repayment Schedule for the Draw, as approved pursuant to Section 4.02
hereof; and
(h) Such other certificates, documents, opinions and information as the
Administrator, the Bank or Bond Counsel may reasonably require.
The aforementioned opinions, documents and certificates need not be submitted to
the extent they have been previously submitted by the Public Agency, except as the same
are required by the Administrator or Bank to be updated. Provision of any of the above-
described documents may be waived by the Administrator and the Bank.
SECTION 4.04. DRAW SUBMISSIONS. At or prior to the time of making
any Draw for a Loan the Public Agency shall submit to the Administrator, the Bank and
Bond Counsel:
(a) A copy of the Draw Request for such Draw;
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(b) If applicable, a copy of a completed and executed Form 8038-G relating to
the Draw to be filed with the Internal Revenue Service;
(c) A certificate of an Authorized Officer of the Public Agency to the effect that
the representations and warranties contained in the Loan Agreement are true and correct as
of the date of the Draw and that no Default or Event of Default exists at such date;
(d) A copy of a certificate substantially in the form of Exhibit C hereto indicating
the Credit Facility fee applicable to such Draw;
(e) A Loan Note duly executed by the Public Agency reflecting the terms of the
Draw, including the Repayment Schedule, in form and substance as provided in Exhibit D
hereto;
(f) A certificate of an Authorized Officer of the Public Agency setting forth (i)
any Debt incurred by the Public Agency since the last Draw, including Debt secured by
any of the Designated Revenues, and (ii) any Debt which the Public Agency intends to
incur within one year of the date of the Draw which pledges any of the Designated
Revenues, and stating whether there has been any material adverse change in the financial
condition of the Public Agency since the date the last financial statements were filed with
the Bank;
(g) A new or amended Arbitrage Certificate; and
(h) Such other opinions, documents, certificates and information as the
Administrator, the Bank or the Bond Counsel may reasonably require.
Provision of any of the above-described documents may be waived by the
Administrator and the Bank.
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ARTICLE V
LOAN REPAYMENTS
SECTION 5.01. PAYMENT OF LOAN REPAYMENTS. (a) The Public
Agency shall make all Loan Repayments in lawful money of the United States of America
to the Trustee. All Loan Repayments shall be made by electronic or wire transfer or other
method of immediate funds payment. The principal of each Loan shall be repaid in
accordance with the Repayment Schedule relating thereto. The principal component of a
Loan Repayment shall be paid on or before the date such amount is due, subject to the
provisions of Sections 3.04(c) and 5.06 hereof; provided the Public Agency pays the
Trustee moneys which are available not later than such due date. Unpaid interest on the
Outstanding principal balance of the Loan Amounts shall be paid by the Public Agency to
the Trustee, as follows:
(i) On or before the twenty-fifth (25th) day of each calendar month, the
Administrator will determine the Estimated Monthly Rate and Estimated Monthly
Interest for the Loan Amounts of each Series of Commercial Paper Notes from
which such Loan Amounts are derived for the next succeeding calendar month.
(ii) No later than the twenty-fifth (25th) day of each month, the
Administrator shall provide an invoice to the Public Agency setting forth the total
amount(including without limitation, Loan Repayments and Additional Payments)
due on the first Business Day of the next succeeding month. Such written notice
shall state the amount of interest,Additional Payments,Monthly Investment Credits
and Monthly Excess Credits relating to each Loan of the Public Agency. Such
notice shall also state the amount of principal due, if any, in the next succeeding
month. A copy of such notice shall be provided to the Trustee.
(iii) On or before the first Business Day of each month the Public Agency
shall pay to the Trustee for deposit into the Revenue Account the Estimated Monthly
Interest for such calendar month relating to each Series of Commercial Paper Notes
together with the other amounts invoiced pursuant to clause (ii).
(iv) If, at any time and from time to time during a month, the
Administrator determines that the amount on deposit in the Revenue Account will
be insufficient to pay the interest due or to become due on Commercial Paper Notes
in such month, the Administrator shall recalculate the Estimated Monthly Interest
due from the Public Agency and require, on three (3) Business Days notice to the
Public Agency, the Public Agency to pay to the Trustee, as a part of the interest
component of the Loan Repayment due in such month, an amount equal to the
difference, if any, between the Estimated Monthly Interest as previously calculated
and the Estimated Monthly Interest as so recalculated. Notwithstanding the
definition of Estimated Monthly Rate and in accordance with the provisions of
Section 3.03(b) of the Indenture, the Administrator, in its sole discretion, may
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recalculate the Estimated Monthly Rate if necessary to ensure sufficient funds are
on deposit in the applicable Interest Payment Account under the Indenture.
Upon full payment and discharge of the Loan, the Commission shall cause the
Trustee to pay over to the Public Agency the Monthly Investment Credits and Monthly
Excess Credits accrued during the calendar month in which the Loan is paid and
discharged.
(b) Notwithstanding the foregoing, if the Public Agency fails to make a Loan
Repayment on the due date thereof and an unreimbursed draw is made on the Letter of
Credit as a result of such delinquency, interest will accrue on the unpaid portion of the
Loan Repayment at the Default Rate from the original due date of such Loan Repayment
to the date of payment of all due and unpaid Loan Repayments.
(c) The principal component of any Loan Repayments shall be paid by the Public
Agency to the Trustee at such time and in such manner as provided in the Repayment
Schedules, unless (i) the Loan Amounts are prepaid in accordance with the terms hereof,
(ii)the Repayment Schedules are modified in accordance with the terms hereof, including,
but not limited to Section 3.04(c) hereof, (iii) any portion of the Loan becomes subject to
mandatory prepayment pursuant to Section 5.06 hereof, or (iv) the due dates of the Loan
Repayments are accelerated pursuant to the terms of Section 8.03 hereof.
(d) In determining the Estimated Monthly Interest as described in Section
5.01(a) above, the Public Agency receives a credit against each Loan Repayment for
investment earnings on moneys in the Accounts. The Public Agency shall receive a pro-
rata share of such investment earnings based on the amount of money representing the
interest component of Loan Repayments as described in Section 5.02(a) hereof made by
each Public Agency participating in the Pooled Commercial Paper Loan Program.
(e) The Public Agency acknowledges that the Commission has agreed, pursuant
to Section 3.03(g)of the Indenture,that upon the occurrence and continuance of any default
under Section 8.01(a) hereof, or, upon the acceleration of the Loan, all Loan Repayments
are to be deposited by the Trustee in a special escrow account pursuant to such Section
3.03(g) and held as a part of the Trust Estate for the sole benefit of and as security for the
Noteholders and the Bank, pending the application of such moneys to pay, or to reimburse
the Bank (including interest on unreimbursed amounts at the applicable rate or rates as set
forth in the Credit Agreement) for L/C Payments made by the Bank to pay, Commercial
Paper Notes and the interest thereon at their maturity; provided, that (i) any net earnings
(or losses) derived from the investment of any portion of such moneys held in such special
escrow account shall be credited to(or, in the case of losses,payable by)the Public Agency,
and (ii) the Public Agency shall remain liable for its share of the amounts specified in
subsections (a), (b), (c) and (d) of Section 5.02 hereof accruing during the period moneys
are held by the Trustee in such special escrow account. The Public Agency agrees that it
shall have no interest in or rights to such special escrow account, subject to clause (i) of
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the proviso in the preceding sentence. The provisions of this Section 5.01(e) shall survive
the payment in full of the Loan Repayments.
(f) The Public Agency shall make all Loan Repayments in lawful money of the
United States of America to the Trustee as required hereby. All Loan Repayments shall be
made by electronic or wire transfer or other method of immediate funds payment at or prior
to 3:00 p.m. on the due date.
(g) Any amount not paid when due shall bear interest at the Default Rate until
paid.
SECTION 5.02. CALCULATION OF LOAN RATE. Except as otherwise
provided in Section 5.01 of this Loan Agreement, the Loan Rate shall equal the sum of
subsections (a), (b), (c) and(d) minus (e) of this Section 5.02:
(a) Interest on the Commercial Paper Notes. A rate which reflects the Actual
Monthly Interest on the Loan,payable in the amount of Estimated Monthly Interest, subject
to Monthly Excess Credits and Monthly Investment Credits, as provided in Section 5.01
hereof; and, provided further, however, the Public Agency recognizes that when
Commercial Paper Notes become due for payment and Commercial Paper Notes cannot be
sold by the Dealer to repay such maturing Commercial Paper Notes, such Commercial
Paper Notes must be paid with funds provided by the Bank under the Credit Agreement,
and the interest rate on Loans or portions thereof will reflect the Bank Rate in accordance
with the terms of the Credit Agreement.
(b) Proportionate Expenses. A rate which reflects the Public Agency's
Proportionate Share of the following items, fees and expenses to the extent that such items
are not paid as provided in Sections 5.05 and 6.06(e) hereof:
(i) the fees and expenses of the Administrator owed to it under the
Administration Agreement;
(ii) the fees and expenses of the Trustee owed to it under the Indenture;
(iii) the expenses of the Commission, including legal and accounting fees;
(iv) the rating fees of Moody's Investors Service and/or Standard& Poor's
Corporation;
(v) any loss on investments of the Trust Estate;
(vi) any fees or penalties related to terminating the Program or replacing
the Credit Facility; and
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(vii) such other reasonable fees and expenses in connection with the
Commercial Paper Notes or this Loan Agreement as the Commission may
determine.
Extraordinary expenses payable pursuant to this Section 5.02(b) shall be stated
separately on the bill delivered by the Administrator to the Public Agency.
(c) Credit Facility Charges. A rate which reflects the Credit Facility fees or
charges of the Bank owed to it under the Credit Agreement by the Public Agency,plus any
commitment fees or other fees payable under Section 3.03(c) hereof. The letter of credit
fees component of such Credit Facility charge or charges shall be provided in a certificate
substantially in the form of Exhibit C hereto or in a resolution adopted by the Public
Agency approving the Loan relating thereto, as the same may be amended from time to
time. In addition, the Public Agency shall be responsible for payment of a Proportionate
Share of any other amounts owing the Bank under the Credit Agreement.
(d) Proportionate Dealer Fees. A rate which reflects the Public Agency's
Proportionate Share of the fees and expenses of the Dealer owed to it under the Dealer
Agreement.
(e) Credits. The Public Agency shall receive the credits referred to in Sections
5.01(a) and 5.01(d) hereof (without duplication), applied as set forth in Section 5.02(a)
above.
SECTION 5.03. LOAN REPAYMENTS. The obligation of the Public
Agency to make Loan Repayments or payment of any other amounts required hereunder
and to perform and observe the other covenants and agreements contained herein shall be
absolute and unconditional in all events. Notwithstanding any dispute between the Public
Agency and the Commission, the Trustee, the Bank, the Administrator or any Noteholder,
the Public Agency shall pay Loan Repayments or any other amounts when due and shall
not withhold any Loan Repayments or any other amounts payable hereunder pending final
resolution of such dispute nor shall the Public Agency assert any right of setoff or
counterclaim against its obligation to make such payments required under this Loan
Agreement. The Public Agency's obligation to make payment of Loan Repayments or any
other amounts due shall not be abated through accident or unforeseen circumstances. The
Commission, the Bank and the Public Agency agree that the Public Agency shall bear all
risk of damage or destruction in whole or in part to the Projects or any part thereof,
including without limitation any loss, complete or partial, or interruption in the use,
occupancy or operation of such Projects, or any manner or thing which for any reason
interferes with, prevents or renders burdensome the use or occupancy of the Projects or the
compliance by the Public Agency with any of the terms of this Loan Agreement.
Notwithstanding the foregoing, this Section shall not limit the rights of the Public Agency
to recover amounts owing to it, except as specifically set forth herein.
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SECTION 5.04. MAXIMUM LEGAL INTEREST RATE. Notwithstanding
the calculation of interest pursuant to Section 5.02 hereunder, the Commission and the
Public Agency acknowledge that it is their intent to contract hereunder in strict compliance
with the usury laws of the State. In furtherance thereof, the Commission and the Public
Agency stipulate and agree that none of the terms and provisions contained herein or under
any instruments held as security hereunder, shall ever be construed to create a contract for
the use, forbearance or detention of money requiring payment of interest at a rate in excess
of the Maximum Legal Rate. The Public Agency shall never be liable for interest on any
Loan Note at a rate in excess of the Maximum Legal Rate applicable thereto. The
provisions of this Section shall control over all other provisions of this Loan Agreement
and any other instruments executed in connection herewith which may be in apparent
conflict herewith. If a court of competent jurisdiction shall make a final determination that
the performance of any provision of this Loan Agreement shall result in a payment of an
amount for such use, forbearance or detention in excess of the Maximum Legal Rate, then
(a) such provision shall be deemed to be appropriately modified to the extent necessary to
reduce such interest to an amount not in excess of such Maximum Legal Rate, and (b) any
such excess amounts theretofore received by the Commission or its assignees shall be
deemed to have been a prepayment of a like principal amount of said Loan Notes, and all
necessary reallocations of subsequent payments with respect to said Loan Notes shall be
made. In addition, if the rate of interest payable under Section 5.02 hereof shall exceed the
Maximum Legal Rate for any period for which interest is payable (i) interest at the
Maximum Legal Rate shall be due and payable with respect to such interest period, and(ii)
to the extent permitted by applicable law, interest at the rate equal to the difference between
(A)the rate of interest calculated in accordance with the terms hereof and(B)the Maximum
Legal Rate (the "Excess Interest") shall be deferred until such date as the rate of interest,
calculated in accordance herewith, ceases to exceed the Maximum Legal Rate, at which
time the Public Agency shall pay the Commission such portion of the deferred Excess
Interest as will cause the rate of interest then paid to the Commission to equal the Maximum
Legal Rate, which payments of deferred Excess Interest shall continue until all such
deferred Excess Interest is fully paid to the Commission.
SECTION 5.05. COSTS OF ISSUANCE. (a) At the time of each Draw
hereunder, the Public Agency agrees to pay the Administrator an amount equal to $2,000
for each $1,000,000 of Loan Amounts then Outstanding (including the proposed Draw) to
the extent not previously paid with respect to such Outstanding amounts. The maximum
aggregate amount payable pursuant to this Section 5.05(a) shall be $40,000. Such fees
shall represent the Public Agency's share of the costs of structuring the Commercial Paper
Loan Program.
(b) The Public Agency shall also pay the Administrator, the Bank, Bank's
Counsel and Bond Counsel, as the case may be, all reasonable fees and expenses associated
with approving and administering the Loans and the Draws pursuant to the provisions of
this Loan Agreement.
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SECTION 5.06. MANDATORY PREPAYMENT. (a) All Loans of the
Public Agency will become due and payable in full on the Expiration Date at a prepayment
price of 100%of the principal amount Outstanding plus accrued interest to the prepayment
date.
(b) If (i) in connection with any extension of the Expiration Date, the Bank
notifies the Administrator that the Bank will not extend the Public Agency Commitment
beyond the then-current Expiration Date, or will extend the Public Agency Commitment
but only at a reduced amount or(ii)the Administrator determines that the Bank will not be
extending the Public Agency Commitment or will be reducing the amount of the Public
Agency Commitment, a principal amount of all Outstanding Loans of the Public Agency
will become due and payable on the then applicable Expiration Date at a prepayment price
of 100%of the principal amount to be prepaid plus accrued interest to the prepayment date.
The principal amount of Loans required to be prepaid under this Section 5.06(b) shall be
(A) 100% of the Outstanding principal amount in the event the Bank is not extending the
Public Agency Commitment, or(B)the amount by which the Bank is reducing the amount
of the Public Agency Commitment. The Administrator will promptly provide the Public
Agency with notice of any such required prepayment.
SECTION 5.07. OBLIGATIONS UNCONDITIONAL. Except as provided
in Section 5.01 hereof, the obligation of the Public Agency to make Loan Repayments and
payment of any other amounts required hereunder from Designated Revenues and to
perform and observe the other covenants and agreements contained herein shall be absolute
and unconditional in all events. Notwithstanding any dispute between the Public Agency
and the Commission, the Trustee, the Bank, the Administrator or any Noteholder, the
Public Agency shall pay the Loan Repayments or any other amounts when due and such
obligations shall not be abated, rebated, set-off, reduced, abrogated, terminated, waived,
diminished, postponed, or otherwise modified in any manner or to any extent whatsoever
and the Public Agency shall not withhold any such payments pending final resolution of
such dispute nor shall the Public Agency assert any right of setoff, recoupment, abatement,
or counterclaim against its obligation to make such payments required under this Loan
Agreement. Subject to the foregoing, the Public Agency shall have the right to litigate any
issue that cannot be amicably resolved with the Commission.
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ARTICLE VI
SECURITY FOR LOANS AND PUBLIC AGENCY
COVENANTS
SECTION 6.01. STATUS OF LOAN OBLIGATIONS. Anything in this
Loan Agreement to the contrary notwithstanding, it is understood and agreed that the ad
valorem taxing power and the full faith and credit of the Public Agency has not been
pledged to secure the obligations of the Public Agency hereunder, except to the extent ad
valorem taxes are pledged pursuant to Section 6.03 hereof. Neither the Commission, the
Bank, the Administrator, the Trustee nor the Holders of the Notes shall have any right to
compel the exercise of any ad valorem taxing power of the Public Agency to pay the
obligations owing hereunder except to the extent ad valorem taxes are pledged pursuant to
Section 6.03 hereof. The obligations of the Public Agency under this Loan Agreement,
including Loan Repayments and all other payments, shall be payable solely from
Designated Revenues in accordance with the terms hereof. The provisions of this Section
shall survive the termination and/or assignment of this Loan Agreement.
SECTION 6.02. SECURITY FOR LOAN REPAYMENTS. The Public
Agency's obligation to repay the Loan Repayments shall be secured by a pledge of and lien
on the Designated Revenues. The Pledged Revenues, which are part of the Designated
Revenues, shall be pledged to the payment of the Loan Repayments in accordance with
Section 6.03 hereof. The Public Agency hereby irrevocably pledges and grants a lien upon
the Designated Revenues to the payment of the Loan Repayments in accordance with the
provisions hereof.
SECTION 6.03. PLEDGED REVENUES. The Public Agency may, in its sole
discretion, pledge certain of its funds to the payment of the Loan Repayments. Such
Pledged Revenues shall be described in a resolution adopted by the Public Agency
approving the Loan relating thereto. The pledge of and lien on such Pledged Revenues
shall commence and terminate at such times and in accordance with the provisions of such
resolution. The Public Agency may provide for the termination and defeasance of the
pledge of and lien on such Pledged Revenues in accordance with the terms of any such
resolution. The terms and provisions of any resolution shall be subject to the approval of
the Administrator and the Bank. At or prior to the pledge of any Pledged Revenues the
Public Agency shall submit to the Administrator and the Bank (a) a certified copy of the
resolution or ordinance of the Public Agency pledging such Pledged Revenues and (b) an
opinion of Counsel to the Public Agency or Bond Counsel to the effect that the resolution
or ordinance pledging such Pledged Revenues has been duly adopted and is enforceable in
accordance with its terms (subject to standard bankruptcy exceptions and the like).
SECTION 6.04. COVENANT TO BUDGET AND APPROPRIATE. (a)
Until all Loan Repayments and other amounts owing hereunder are paid or deemed paid
pursuant to the provisions of this Loan Agreement,the Public Agency hereby covenants to
appropriate in its annual budget, by amendment if necessary, from Non-Ad Valorem
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Revenues lawfully available in each fiscal year of the Public Agency in which principal or
interest on the Loan Repayments and other amounts owing hereunder becomes due and
payable, amounts sufficient, together with other available moneys, to pay the Loan
Repayments and other amounts owing hereunder, as the same become due (whether by
redemption, at maturity or otherwise). Such covenant and agreement on the part of the
Public Agency to budget and appropriate such amounts of Non-Ad Valorem Revenues
shall be cumulative to the extent not paid, and shall continue until such Non-Ad Valorem
Revenues or other legally available funds in amounts sufficient to make all such required
payments hereunder shall have been budgeted, appropriated and actually paid. Once such
Non-Ad Valorem Revenues are so budgeted and appropriated, the same shall constitute
"Public Agency Moneys" hereunder. Notwithstanding the foregoing covenant of the
Public Agency,the Public Agency does not covenant to maintain any services or programs,
now provided or maintained by the Public Agency, which generate Non-Ad Valorem
Revenues.
(b) Such covenant to budget and appropriate does not create any lien upon or
pledge of such Non-Ad Valorem Revenues, nor does it preclude the Public Agency from
pledging in the future its Non-Ad Valorem Revenues,nor does it require the Public Agency
to levy and collect any particular Non-Ad Valorem Revenues, nor does it give the Bank,
the Commission, the Administrator, the Trustee or the Noteholders a prior claim on the
Non-Ad Valorem Revenues as opposed to claims of general creditors of the Public Agency.
Such covenant to appropriate Non-Ad Valorem Revenues is subject in all respects to the
payment of obligations secured by a pledge of such Non-Ad Valorem Revenues heretofore
or hereinafter entered into (including the payment of debt service on bonds and other debt
instruments). Such covenant to budget and appropriate Non-Ad Valorem Revenues shall
not in any way detract from the pledge of and lien on the Pledged Revenues, if any,
provided herein. However, the covenant to budget and appropriate in its general annual
budget for the purposes and in the manner stated herein shall have the effect of making
available for the payment of the Loan Repayments and other amounts owing hereunder in
the manner described herein Non-Ad Valorem Revenues and placing on the Public Agency
a positive duty to appropriate and budget, by amendment, if necessary, amounts sufficient
to meet its obligations hereunder; subject, however, to the payment of services and
programs which are for essential public purposes affecting the health, welfare and safety
of the inhabitants of the Public Agency or which are legally mandated by applicable law;
and subject, further, to the provisions of Section 129.07, Florida Statutes, insofar as there
are not sufficient Non-Ad Valorem Revenues to comply with such covenant to budget and
appropriate after the satisfaction of the funding requirements for obligations having an
express lien on or pledge of such revenues and the funding requirements for legally
mandated or essential governmental services and programs of the Public Agency.
(c) During such time as any Loan Amounts are outstanding hereunder(including
but not limited to at the time of issuance or incurrence of additional indebtedness which is
secured by any Non-Ad Valorem Revenues or is payable from a covenant to budget and
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appropriate legally available Non-Ad Valorem Revenues that is similar to the one set forth
herein)which are secured by the covenant to budget and appropriate legally available Non-
Ad Valorem Revenues, the Public Agency agrees and covenants with the Commission and
the Bank that: (i) Non-Ad Valorem Revenues (average of actual receipts over the prior
two years) must cover projected maximum annual debt service on Debt secured by and/or
payable from any Non-Ad Valorem Revenues by at least 1.5x; and(ii)projected maximum
annual debt service requirements for all Debt secured by and/or payable from any Non-Ad
Valorem Revenues will not exceed 20% of Governmental Fund Revenues (defined as
general fund, special fund, debt service fund and capital projects funds), exclusive of(i) ad
valorem revenues restricted to payment of debt service on any Debt and (ii) any Debt
proceeds, and based on the Public Agency's audited financial statements. For the purposes
of these covenants maximum annual debt service means the lesser of the actual maximum
annual debt service on all Debt or 15%of the original par amount of the Debt, in each case,
secured by or payable from Public Agency Non-Ad Valorem Revenues. The Public
Agency agrees that, as soon as practicable after the end of each fiscal year, it shall deliver
to the Bank a certificate setting forth the calculations of the financial ratios provided in
this Section 6.04(c) and certifying that it is in compliance with the provisions of this
Section 6.04(c).
For purposes of the foregoing covenant, all Debt (including Loans hereunder)
bearing interest at a variable rate shall be assumed to bear interest at the higher of 6.00%
per annum or the actual interest rate borne during the month immediately preceding the
date of calculation and shall be assumed to amortize on a level basis over 20 years.
Notwithstanding the foregoing covenant, for purposes of calculating annual debt service
on any Loan hereunder for which a Draw has been funded, such Loan shall be assumed to
be fully funded.
(d) The covenant to budget and appropriate provided in this Section may, with
the consent of the Administrator and the Bank, be released in lieu of the pledge of Pledged
Revenues as provided in Section 6.02 hereof. The release of such covenant shall be
evidenced by a certificate executed by the Public Agency and approved in writing by the
Bank and the Administrator.
SECTION 6.05. PAYMENT COVENANT. The Public Agency covenants
that it shall duly and punctually pay from Designated Revenues the Loan Repayments and
other amounts owing hereunder at the dates and place and in the manner provided herein.
SECTION 6.06. ADDITIONAL COVENANTS. The Public Agency makes
the following additional covenants and representations as of the date first above written
and such covenants shall continue in full force and effect until all amounts due hereunder
have been paid in full:
(a) Books and Records. The Public Agency will keep books and records of the
receipt of the Designated Revenues in accordance with generally accepted accounting
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principles, and the Administrator, the Bank and the Trustee shall have the right at all
reasonable times to inspect the records, accounts and data of the Public Agency relating
thereto.
(b) Annual Audit and Other Information. The Public Agency shall (i) furnish or
cause to be furnished to the Bank upon request, as soon as available, and in any event not
less than forty-five (45) days after the beginning of each fiscal year, a copy of its budget
for such fiscal year, (ii) cause the financial statements of the Public Agency for each fiscal
year to be audited by an Accountant, (iii) furnish or cause to be furnished to the Bank and
the Administrator, as soon as available and in any event not less than ten (10) days after
the issuance thereof, a copy of any final official statement relating to Debt of the Public
Agency, and(iv)additional information as reasonably requested by the Bank. Such annual
financial statements shall contain, but not be limited to, a balance sheet, a statement of
revenues, expenditures and changes in fund balance, and any other statements as required
by law or accounting convention. The annual financial statement shall be prepared in
conformity with generally accepted accounting principles, and shall be furnished to the
Bank as soon as available and in any event not more than 180 days after the end of the
applicable fiscal year. The Public Agency shall also provide a certificate to the Bank each
year with the audited financial statements certifying that it is in compliance with all of the
provisions herein and is not in default hereunder. Such certificate may also include the
certification required under Section 6.04(c) hereof.
(c) Right of Inspection. The Commission, the Bank, the Trustee, and their
designated agents shall have the right at all reasonable times during normal business hours
to enter into and upon the property of the Public Agency for the purpose of inspecting
books and records of the Public Agency relating to this Loan Agreement, the Designated
Revenues and the transactions contemplated hereby and by the Indenture.
(d) Information. The Public Agency's chief financial officer shall, at the
reasonable request of the Trustee or the Bank,discuss the Public Agency's financial matters
with the Bank and the Trustee. In addition, the Public Agency shall furnish the
Administrator all necessary information relating to its financial condition to enable the
Commission and the Administrator to make all disclosures to the Noteholders required by
State or Federal law. The Public Agency shall immediately inform the Administrator of
any material adverse change in its financial condition.
(e) Agreement to Reimburse Certain Amounts.
(i) To the extent allowed by law, the Public Agency will pay to,
reimburse or indemnify the Commission, the Administrator, the Bank, the Trustee,
each member, officer, commissioner, employee and agent of the Commission, the
Administrator, the Bank, the Trustee and each other Person, if any, who has the
power, directly or indirectly, to direct or cause the direction of the management and
policies of the Commission, the Administrator, the Bank and the Trustee for any
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and all liabilities, losses, damages, costs, expenses (including reasonable attorneys'
fees), suits, claims and judgments of whatsoever kind and nature,arising or resulting
from, or in connection with, this Loan Agreement, the Credit Agreement or the
Projects or the breach or violation of any agreement, covenant, representations or
warranty of the Public Agency set forth in this Loan Agreement or any document
delivered pursuant hereto or in connection herewith.
(ii) In addition, to the extent allowed by law, the Public Agency will
reimburse all other Public Agencies participating in the Pooled Commercial Paper
Program to the extent the Public Agency has committed any act or failed to commit
an act and the result of such action or failure to act is that the cost of participating
in the Pooled Commercial Paper Program of such Public Agencies is increased.
Such reimbursement includes, without limitation, any increased costs incurred by
other participating Public Agencies as a result of the Public Agency failing to make
a Repayment or any other payment hereunder when due.
(iii) The provisions of this Section 6.06(e) shall survive the termination of
this Loan Agreement.
(f) Further Assurance. The Public Agency shall execute and deliver to the
Commission, the Administrator, the Bank or the Trustee, as the case may be, all such
documents and instruments and do all such other acts and things as may be necessary or
reasonably required by the Trustee, the Administrator, the Bank or the Commission to
enable the Trustee,the Administrator, the Bank or the Commission to exercise and enforce
its rights under this Loan Agreement, and to validate, preserve and protect the position of
the Trustee, the Administrator, the Bank and the Commission under this Loan Agreement.
(g) Use of the Projects. The Public Agency will not use the Projects or suffer or
permit the Projects to be used in any manner or to any extent which would result in the loss
of the exclusion of interest on the Commercial Paper Notes from gross income for federal
income tax purposes pursuant to the Code.
(h) Special Covenants. The Public Agency agrees to fully comply with any
additional covenants required by the Bank or the Commission with respect to a particular
Loan which shall be provided in a certificate or in a resolution adopted by the Public
Agency approving the Loan relating thereto,the terms of which are incorporated herein by
reference. Such covenants may be established,terminated or modified at any time with the
written consent of the Bank.
(i) Compliance with Laws, etc. The Public Agency shall comply with the
requirements of all applicable laws, the terms of all grants, rules, regulations and orders of
any governmental authority,non-compliance with which would, singly or in the aggregate,
materially adversely affect its business, properties, earnings,prospects or credit, unless the
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same shall be contested by it in good faith and by appropriate proceedings which shall
operate to stay the enforcement thereof.
(j) Tax Exempt Status of Commercial Paper Notes.
(i) The Commission and the Public Agency understand that it is the
intention hereof that the interest on the Commercial Paper Notes be excluded from
the gross income of the Holders thereof for federal income tax purposes. In
furtherance thereof, the Public Agency agrees that so long as any Loans are
Outstanding under this Agreement it will take all action within its control which is
necessary in order for the interest on the Commercial Paper Notes to be excluded
from gross income for purposes of federal income taxation (other than those Series
B Notes held by a person who is deemed a "substantial user" of a Project or a
"related person" to a "substantial user" of a Project within the meaning of Section
147(a) of the Code) and shall refrain from taking any action which results in such
interest becoming so taxable.
(ii) In order to maintain the exclusion from gross income for purposes of
federal income taxation of interest on the Commercial Paper Notes the Public
Agency shall comply with each requirement of the Code applicable to the Loan
Amounts. In furtherance of the covenant contained in the preceding sentence, the
Public Agency shall execute an Arbitrage Certificate for each Loan and shall
comply with all the terms and conditions thereof. Such Arbitrage Certificate shall
be deemed to be reexecuted and reaffirmed as of the date of each subsequent
delivery of Series A Notes or Series B Notes,the proceeds of which are used to pay
the principal of Series A Notes or Series B Notes,which financed or refinanced such
Loan unless and until the Public Agency shall furnish the Administrator and Bond
Counsel a new Arbitrage Certificate or a supplement or modification to the existing
one. The Public Agency shall set forth in each of its Arbitrage Certificates its
reasonable expectations on the date of delivery of such Arbitrage Certificate as to
compliance with the relevant requirements of Section 103 and Sections 141 through
150 of the Code and as to the relevant facts, estimates and circumstances relating to
the use of proceeds of a Loan, and any other matters deemed relevant by Bond
Counsel. The facts, estimates and circumstances set forth in each such Arbitrage
Certificate will be, to the best knowledge of an Authorized Officer of the Public
Agency, true and correct as of the date thereof. The Public Agency shall inform
Bond Counsel of any change in the facts, estimates and circumstances contained in
any Arbitrage Certificate.
(iii) So long as necessary in order to maintain the exclusion, if any, from
gross income of interest on the Commercial Paper Notes for federal income tax
purposes (other than those Series B Notes held by a person who is deemed a
"substantial user" of a Project or a "related person" to a "substantial user" of a
Project within the meaning of Section 147(a) of the Code), the covenants contained
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in this Section shall survive the payments of the Commercial Paper Notes and the
interest thereon, including any payment or defeasance thereof.
(iv) The Public Agency shall not take or permit any action or fail to take
any action so long as any Loans are Outstanding under this Agreement which would
cause the Commercial Paper Notes to be "arbitrage bonds" within the meaning of
Section 148(a) of the Code.
(v) The Public Agency covenants to provide the Administrator with all
material and information necessary to enable the Administrator to file all reports
required under the Code.
(vi) The Public Agency shall make any and all payments required to be
made to the United States Department of the Treasury in connection with the Loan
Amounts pursuant to Section 148(f) of the Code.
(k) Agreement Re: Contingency Account. The Public Agency agrees on the
Commencement Date to execute the Agreement Re: Contingency Account substantially in
the form attached hereto as Exhibit E. The Public Agency agrees to comply with the terms
of the aforementioned Agreement and to make such amendments to the Agreement as shall
be reasonably requested to ensure the prompt payment of the Loan Repayments; provided,
however, no amendment may be made without the prior written consent of the Bank.
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ARTICLE VII
ASSIGNMENT AND PAYMENT BY THIRD PARTIES
SECTION 7.01. ASSIGNMENT BY COMMISSION. This Loan Agreement
and the obligations of the Public Agency to make payments hereunder may be assigned
and reassigned by the Commission in whole or in part to one or more assignees or
subassignees at any time subsequent to its execution without the necessity of obtaining the
consent of the Public Agency. Any assignment by the Commission shall be subject to the
prior written consent of the Bank, except in the case of an assignment to the Trustee. The
Public Agency expressly acknowledges that this Loan Agreement and the obligations of
the Public Agency to make payments hereunder (with the exception of the Commission's
rights to reimbursement, indemnification, fees and expenses), have been pledged and
assigned to the Trustee and the Bank under the Indenture as security for the holders of the
Commercial Paper Notes and the Bank and that the Trustee shall be entitled to act
hereunder in the place and stead of the Commission whether or not any of the Commercial
Paper Notes or this Loan Agreement are in default. In addition, the Public Agency
acknowledges that the Commission has appointed an Administrator which shall be entitled
to act hereunder in the place and stead of the Commission, but only to the extent of such
appointment.
SECTION 7.02. ASSIGNMENT BY PUBLIC AGENCY. This Loan
Agreement may not be assigned by the Public Agency for any reason without the express
prior written consent of the Commission, the Administrator, the Bank and the Trustee,
except in the case of an assignment to the Bank in accordance with Section 8.03 hereof and
Section 10.05 of the Indenture. After receipt of notice of any such assignment of this Loan
Agreement to the Bank, the Public Agency will make all payments required under Article
V hereof directly to the Bank, in accordance with the terms hereof and of the Credit
Agreement.
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ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
SECTION 8.01. EVENTS OF DEFAULT DEFINED. The following shall be
"Events of Default" under this Loan Agreement and the terms "Event of Default" shall
mean (except where the context clearly indicates otherwise), whenever such term is used
in this Loan Agreement, any one or more of the following events:
(a) Failure by the Public Agency to timely pay any Loan Repayment;
(b) Failure by the Public Agency to observe and perform any covenant, condition
or agreement on its part to be observed or performed under this Loan Agreement, other
than as referred to in Section 8.01(a) or 8.02 hereof, for a period of thirty (30) days after
written notice specifying such failure and requesting that it be remedied, is given to the
Public Agency by the Commission, the Bank, the Administrator or the Trustee, unless the
Commission, the Bank, the Administrator and the Trustee shall agree in writing to an
extension of such time prior to its expiration; provided, however, if the failure stated in the
notice can be wholly cured within a period of time not materially detrimental to the rights
of the Commission,the Noteholders,the Bank or the Trustee,as the case may be,but cannot
be cured within the applicable 30-day period,the Commission,the Bank,the Administrator
and the Trustee will not unreasonably withhold their consent to an extension of such time
if corrective action is instituted by the Public Agency within the applicable period and
diligently pursued until the failure is corrected;
(c) Any warranty, representation or other statement by the Public Agency or by
an officer or agent of the Public Agency contained in this Loan Agreement or in any
instrument furnished in compliance with or in reference to this Loan Agreement is false or
misleading in any material adverse respect;
(d) A petition is filed against the Public Agency under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation
law of any jurisdiction,whether now or hereafter in effect, and an order for relief is entered
or such petition is not dismissed within sixty (60) days of such filing;
(e) The Public Agency files a petition in voluntary bankruptcy or seeking relief
under any provision of any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or
hereafter in effect, or consents to the filing of any petition against it under such law;
(f) The Public Agency admits insolvency or bankruptcy or its inability to pay its
debts as they become due or is generally not paying its debts as such debts become due, or
becomes insolvent or bankrupt or makes an assignment for the benefit of creditors, or a
custodian (including without limitation a receiver, liquidator or trustee) of the Public
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Agency or any of its property is appointed by court order or takes possession thereof and
such order remains in effect or such possession continues for more than 60 days; or
(g) Any Debt of or assumed by the Public Agency (i) is not paid when due nor
within any applicable grace period in any agreement or instrument relating to such Debt,
(ii) becomes due and payable before its normal maturity by reason of a default or event of
default, however described, or(iii) becomes subject to a moratorium.
SECTION 8.02. NOTICE OF DEFAULT. (a) The Public Agency agrees to
give the Trustee, the Bank, the Administrator and the Commission prompt written notice
if any petition, assignment, appointment or possession referred to in Sections 8.01(d),
8.01(e) and 8.01(f) hereof is filed by or against the Public Agency or of the occurrence of
any other event or condition which constitutes an Event of Default, or an event or condition
which, with the passage of time or the giving of notice or both, would constitute an Event
of Default, immediately upon becoming aware of the existence thereof
(b) The Commission or Administrator will notify the Bank on the same Business
Day as the Commission becomes aware of the existence of an Event of Default, specifying
the nature thereof.
SECTION 8.03. REMEDIES ON DEFAULT. Whenever any Event of
Default referred to in Section 8.01 hereof shall have happened and be continuing, the
Commission, the Bank or the Trustee shall, in addition to any other remedies herein or by
law provided, have the right, at its or their option without any further demand or notice,
but subject to the right of the Bank to direct the enforcement of remedies pursuant to the
Indenture, to (a) declare all Loan Repayments and all other amounts due hereunder (i) to
be immediately due and payable without further notice or demand in the case of an Event
of Default occurring under Sections 8.01(a), 8.01(d), 8.01(e) or 8.01(f) hereof, and (ii) to
be due and payable without further notice or demand on a date which shall be no sooner
than ninety (90) days of the date notice is given to the Public Agency in the case of an
Event of Default occurring under Sections 8.01(b), 8.01(c) or 8.01(g) hereof, or (b) take
such steps and exercise such remedies as provided in Article V of the Indenture, and take
whatever other action at law or in equity may appear necessary or desirable to collect the
amounts then due and thereafter to become due hereunder or to enforce any other of its or
their rights hereunder.
Upon the occurrence of an Event of Default,the Public Agency agrees that the Bank
may notify the Commission and the Trustee prior to 1:00 p.m. (New York City time) on
the proposed date of issuance of any Notes pursuant to Section 2.06(c)(iv)(A) of the
Indenture to discontinue issuing and delivering Notes for the purpose of repaying maturing
Notes in an amount equal to the aggregate principal amount of the outstanding Loans to
the Public Agency pursuant to Section 3.03(g) of the Indenture; provided, that
notwithstanding any such notice, the obligation of the Bank to permit drawings under the
Credit Facility shall not terminate with respect to any Notes issued prior to the time
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provided in this sentence. In connection therewith, the Trustee shall draw on the Credit
Facility to repay such maturing Notes and upon the Bank honoring such draw, the Bank
may direct the Commission and the Trustee to cause this Loan Agreement to be assigned
solely to the Bank. The Bank may also instruct the Trustee to draw on the Credit Facility
in an amount equal to the aggregate principal amount of the outstanding Loans to the Public
Agency, plus the interest to accrue thereon through the earliest date on which the Trustee
will be able to apply the amount drawn to discharge a principal amount of Commercial
Paper Notes equal to the principal amount of such Loans and,upon the Bank honoring such
draw, the Bank may direct the Commission and the Trustee to cause this Loan Agreement
to be assigned solely to the Bank.
SECTION 8.04. ATTORNEY'S FEES AND OTHER EXPENSES. The
Public Agency shall on demand pay to the Commission, the Bank, the Administrator and
the Trustee the reasonable fees and expenses of attorneys (including in connection with
any appeal) and other reasonable expenses incurred by any of them in collection of Loan
Repayments or any other sums due hereunder or in the enforcement of performance of any
other obligations of the Public Agency hereunder upon an Event of Default. The provisions
of this Section shall survive the termination and/or assignment of this Loan Agreement and
the payment in full of the Public Agency's obligations hereunder.
SECTION 8.05. APPLICATION OF MONEYS. Any moneys collected by
the Commission,the Bank,the Administrator or the Trustee pursuant to Section 8.03 hereof
shall be subject to Section 5.01(e) hereof and Section 3.03(g) of the Indenture and shall be
applied (a) first, to pay any attorneys' fees or other expenses owed by the Public Agency
to the Trustee or the Bank pursuant to Section 8.04 hereof, (b) second, to pay any interest
due on the Loan Amounts, (c)third, to pay principal due on the Loan Amounts, (d) fourth,
to pay any other amounts due hereunder, (e) fifth, to pay interest and principal on the Loan
Amounts and other amounts payable hereunder but which are not due, as they become due
(in the same order, as to amounts which come due simultaneously, as in clauses(a)through
(d) in this Section), and (f) sixth, to pay any attorneys' fees owed by the Public Agency to
the Commission or the Administrator pursuant to Section 8.04 hereof, pro rata based on
the amount of such expenses owed.
SECTION 8.06. NO REMEDY EXCLUSIVE; WAIVER, NOTICE. No
remedy herein conferred upon or reserved to the Commission,the Bank, the Administrator
or the Trustee is intended to be exclusive and every such remedy shall be cumulative and
shall be in addition to every other remedy given under this Loan Agreement or now or
hereafter existing at law or in equity. No delay or omission to exercise any right, remedy
or power accruing upon any Default shall impair any such right, remedy or power or shall
be construed to be a waiver thereof, but any such right, remedy or power may be exercised
from time to time and as often as may be deemed expedient. In order to entitle the
Commission, the Bank, the Administrator or the Trustee to exercise any remedy reserved
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to it in this Article VIII, it shall not be necessary to give any notice other than such notice
as may be required in this Article VIII.
SECTION 8.07. ASSIGNMENT TO BANK. After receipt of notice of any
such assignment of this Loan Agreement to the Bank pursuant to Section 8.03 hereof, the
Public Agency will make all payments required under Article V hereof directly to the Bank,
in accordance with the terms hereof and of the Credit Agreement.
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ARTICLE IX
EXCESS FUNDS
SECTION 9.01. EXCESS FUNDS. Any amounts remaining in the Trust Estate
after (a) full payment of the Commercial Paper Notes or provision for payment thereof so
that no Commercial Paper Notes are deemed Outstanding under the Indenture, (b) all
amounts owed to the Bank under the Credit Agreement have been paid and the Credit
Facility terminated, and (c) all fees, charges and expenses required to be paid pursuant to
the Indenture have been paid, shall, after being held for one hundred twenty-three (123)
days after such full payment or provision shall have been made and no claim shall have
been made thereon, be rebated by the Trustee to Public Agency in an'amount certified by
the Administrator as being equal to the amount remaining in the Trust Estate(as defined in
the Indenture) multiplied by the result of(i) the dollar amount of interest (other than any
interest representing that portion of an interest payment reflecting the Bank Rate)
theretofore received by the Trustee hereunder, divided by(ii) the total dollar amount of all
interest payments theretofore received by the Trustee on all loan agreements outstanding
under the Pooled Commercial Paper Loan Program (other than any interest representing
that portion of an interest payment reflecting the Bank Rate).
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ARTICLE X
MISCELLANEOUS
SECTION 10.01. NOTICES. All notices, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given when hand delivered or
mailed by registered or certified mail, postage prepaid, or provided by electronic mail to
the appropriate parties:
Commission: Florida Local Government Finance Commission
c/o Florida Association of Counties, Inc.
100 South Monroe Street
Tallahassee, Florida 32301
Attention: Director of Commercial Paper Program
Telephone: 850/922-4300
Telecopy: 850/488-7501
Public Agency: Collier County, Florida
3301 East Tamiami Trail
Naples, Florida 34112
Attention: Mark Isackson, Corp. Financial Planning &
Management Services
Telephone: 239/252-8717
Telecopy: 239/403-2366
Administrator: Florida Association of Counties, Inc.
100 South Monroe Street
Tallahassee, Florida 32301
Attention: Director of Commercial Paper Program
Telephone: 850/922-4300
Telecopy: 850/488-7501
Dealer: JPMorgan Chase Securities Inc.
450 South Orange Ave
Suite 1000
Orlando, Florida 32801
Telephone: (407) 236-5434
Telecopy: (407) 235-5444
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Trustee: U.S. Bank National Association
Mail Code EX-FL-UORT
225 E. Robinson Street, Suite 250
Orlando, Florida 32801
Attention: Corporate Trust Services
Telephone: 407/835-3810
Telecopy: 407/835-3814
Bank: JPMorgan Chase Bank, N.A.
450 South Orange Avenue, Suite 1000
Orlando, Florida 32801
Attention: Government,Non-Profit& Healthcare
Telephone Number: 407/236-5464
Facsimile Number: 407/218-5355
Bond Counsel: Nabors, Giblin&Nickerson, P.A.
2502 Rocky Point Drive, Suite 1060
Tampa, Florida 33607
Telephone: 813/281-2222
Telecopy: 813/281-0129
Any of the above parties may,by notice in writing given to the others, designate any
further or different addresses to which subsequent notices, certificates or other
communications shall be sent. Notices to the Trustee shall be effective only upon the
receipt thereof by the Trustee.
SECTION 10.02. BINDING EFFECT. To the extent provided herein,this Loan
Agreement shall be binding upon the Public Agency and the Commission and shall inure
to the benefit of the Public Agency, the Commission, the Bank, the Administrator and the
Trustee and their respective successors and assigns.
SECTION 10.03. SEVERABILITY. In the event any provision of this Loan
Agreement shall be held invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any other provision hereof.
SECTION 10.04. AMENDMENTS, CHANGES AND MODIFICATIONS.
This Loan Agreement may be amended by the Commission and the Public Agency, with
the prior written consent of the Bank, as provided in Section 8.05 of the Indenture.
SECTION 10.05. EXECUTION IN COUNTERPARTS. This Loan
Agreement may be simultaneously executed in several counterparts, each of which shall
be an original and all of which shall constitute but one and the same instrument.
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SECTION 10.06. APPLICABLE LAW. This Loan Agreement shall be
governed by and construed in accordance with the laws of the State of Florida.
SECTION 10.07. WAIVER OF JURY TRIAL. To the extent permitted by
applicable law, each of the Public Agency, the Commission and the Bank, knowingly,
voluntarily and intentionally waives any right each may have to a trial by jury in respect of
any litigation based on, or arising out of,under or in connection with this Loan Agreement,
the Loans or any agreement contemplated to be executed in connection with this Loan
Agreement, or any course of conduct, course of dealing, statements (whether verbal or
written)or actions of any party with respect hereto. This provision is a material inducement
to the Bank agreeing to provide credit and liquidity support to Loans hereunder.
SECTION 10.08. BENEFIT OF NOTEHOLDERS; COMPLIANCE WITH
INDENTURE. This Loan Agreement is executed in part to induce the purchase of the
Commercial Paper Notes. Accordingly, all covenants, agreements and representations on
the part of the Public Agency and the Commission, as set forth in this Loan Agreement,
are hereby declared to be for the benefit of the Holders, from time to time, of the
Commercial Paper Notes and of the Bank.
SECTION 10.09. CONSENTS AND APPROVALS. Whenever the written
consent or approval of the Commission shall be required under the provisions of this Loan
Agreement, such consent or approval may be given by an Authorized Officer of the
Commission or such other additional person provided by rules, regulations or resolutions
of the Commission.
SECTION 10.10. IMMUNITY OF OFFICERS, EMPLOYEES AND
MEMBERS OF COMMISSION. No recourse shall be had for any representation,
obligation, covenant or agreement in this Loan Agreement against any past, present or
future officer, member, employee, director or agent of the Commission, as such, and all
such liability of any such officers, members, employees, directors or agents, as such, is
hereby expressly waived and released as a condition of and consideration for the execution
of this Loan Agreement.
SECTION 10.11. CAPTIONS. The captions or headings in this Loan
Agreement are for convenience only and in no way define, limit or describe the scope or
intent of any provisions or sections of this Loan Agreement.
SECTION 10.12. NO PECUNIARY LIABILITY OF COMMISSION. No
provision, covenant or agreement contained in this Loan Agreement on behalf of the
Commission, or any obligation herein imposed upon the Commission, or the breach
thereof, shall constitute an indebtedness or liability of the State or any political subdivision
of the State (excluding the participating public agencies to the extent of their obligations
under their respective loan agreements) or any public corporation or governmental agency
existing under the laws thereof other than the Commission. In making the agreements,
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provisions and covenants set forth in this Loan Agreement, the Commission has not
obligated itself except with respect to the Trust Estate.
SECTION 10.13. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND
HOLIDAYS. In any case where the date for making any payment or the last date for
performance of any act or the exercise of any right, as provided in this Loan Agreement,
shall be other than a Business Day, then such payment or performance shall be made on
the succeeding Business Day with the same force and effect as if done on the nominal date
provided in this Loan Agreement, provided that interest on any monetary obligation
hereunder shall accrue at the applicable rate to and including the date of such payment.
SECTION 10.14. RIGHT OF OTHERS TO PERFORM PUBLIC
AGENCY'S COVENANTS. If the Public Agency shall fail to make any payment or
perform any act required to be performed hereunder, then and in each such case the
Commission,the Bank, the Administrator or the Trustee or any of them, may(but shall not
be obligated to) remedy such default for the account of the Public Agency and make
advances for that purpose. No such performance or advance shall operate to release the
Public Agency from any such default and any sums so advanced by the Commission or the
Trustee shall bear interest at the Default Rate from the date of the advance until repaid as
provided herein.
IN WITNESS WHEREOF, the Commission has caused this Loan Agreement to
be executed in its corporate name with its corporate seal hereunto affixed and attested by
its duly authorized officers as of the date first above written.
FLORIDA LOCAL GOVERNMENT
FINANCE COMMISSION
(SEAL)
By:
Chairman
Attest:
Secretary-Treasurer
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IN WITNESS WHEREOF,the Public Agency has caused this Loan Agreement to
be executed in its name with its seal hereunto affixed and attached by its duly authorized
officers as of the date first above written.
COLLIER COUNTY, FLORIDA
(SEAL)
By:
Chairman
Attest:
By:
Deputy Clerk
Approved as to form and legal sufficiency:
County Attorney
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IN WITNESS WHEREOF, the Bank has caused this Loan Agreement to be
executed in its name by its duly authorized officer as of the date first above written.
JPMORGAN CHASE BANK, N.A.
By:
Authorized Signatory
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EXHIBIT A
OPINION OF PUBLIC AGENCY'S COUNSEL
IN CONNECTION WITH LOAN
[Letterhead of Counsel to Public Agency]
[Date of the Draw]
Florida Local Government JPMorgan Chase Bank, N.A..
Finance Commission as Letter of Credit Provider
Tallahassee, Florida Orlando, Florida
U.S. Bank National Association, as Trustee Nabors, Giblin& Nickerson, P.A.
Orlando, Florida Tampa, Florida
Gentlemen:
I am counsel to Collier County, Florida (the "Public Agency"), and have been
requested by the Public Agency to give this opinion in connection with a loan in the
principal amount of $ (the "Loan") by the Florida Local Government
Finance Commission (the "Commission") to the Public Agency of funds to finance,
refinance or reimburse the cost of (the "Project") [the Public
Agency Expenses (as defined in the hereinafter defined Loan Agreement] pursuant to the
terms and conditions of the Loan Agreement, dated as of (the "Loan
Agreement"),among the Commission,the Public Agency and JPMorgan Chase Bank,N.A.
In this connection, I have reviewed such records, certificates and other documents
as I have considered necessary or appropriate for the purposes of this opinion, including
Chapter 125,Florida Statutes, Chapter 163,Florida Statutes, and other applicable provision
of law, the relevant resolutions or ordinances adopted by the Board of County
Commissioners of the Public Agency approving the Loan(collectively, the "Resolution"),
the Loan Agreement and the Trust Indenture, dated as of June 6, 2011, (the "Indenture"),
between the Commission and U.S. Bank,National Association, as Trustee. Based on such
review and such investigation as I have deemed necessary and such other consideration of
law and fact as I believe to be relevant, I am of the opinion that:
1. The Public Agency is a duly constituted political subdivision of the State of
Florida ("State"), validly existing and in good standing under the laws of the State, is not
in violation of any provision of law material to the transactions contemplated by the Loan
Agreement and the Loan, and has all requisite power and authority to execute and deliver
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the Loan Agreement and the Loan Note or Notes (as defined in the Loan Agreement)
related to the Project [Public Agency Expenses], to enter into the Loan and to acquire,
construct and equip the Project [finance the Public Agency Expenses].
2. No approval, authorization, consent or other order of any governmental
entity or of any court, public board or body (other than those already obtained), and no
approving referendum of the qualified electors of the Public Agency, is legally required for
the Public Agency to enter into and perform its obligations under the Loan Agreement and
the Loan Note related to the Project [Public Agency Expenses].
3. The Public Agency has the requisite power to acquire, construct and equip
the Project [finance the Public Agency Expenses] and to enter into the Loan Agreement
and the Loan and has duly authorized the execution and delivery of the Loan Agreement
and the Loan Note related to the Project [Public Agency Expenses] and receipt of the Loan.
The Public Agency is duly authorized to use the proceeds of the Loan to finance, refinance
or reimburse the costs of acquiring, constructing and equipping the Project [finance the
Public Agency Expenses].
4. The Loan Agreement creates a valid pledge of and lien upon the Designated
Revenues (as defined in the Loan Agreement).
5. Neither the execution and delivery of the Loan Agreement, receipt of the
Loan nor the consummation of the transactions contemplated thereby, nor the fulfillment
of or compliance with the terms and conditions of the Loan Agreement conflicts with or
results in a breach of any of the terms, conditions or provisions of the Constitution or laws
of the State (including any limit on indebtedness), or any corporate restriction or any
agreement, instrument or governmental or court order to which the Public Agency is now
a party or by which it is bound or constitutes a default under any of the foregoing.
6. The Public Agency has obtained all permits and approvals required by any
court, governmental body or officer for the execution and delivery of the Loan Agreement
and the Loan Note related to the Project[Public Agency Expenses] and receipt of the Loan;
the Public Agency has complied with any applicable provisions of law requiring any
notification, declaration, filing or registration with any court, governmental body or officer
in connection with the execution, delivery and performance of the Loan Agreement, the
Loan Note related to the Project [Public Agency Expenses] and the Loan.
7. The Loan Agreement and the Loan Note related to the Project [Public
Agency Expenses] have been duly and validly authorized, executed and delivered, are in
full force and effect, and each is a valid and legally binding obligation of the Public
Agency, enforceable in accordance with its respective terms, except to the extent that the
enforceability thereof may be limited by laws relating to the bankruptcy or insolvency of
the Public Agency or other similar laws affecting creditors' rights generally or by general
principles of equity.
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8. To the best of my knowledge (based upon due inquiry and investigation),
there is no litigation or legal or governmental action, proceeding, inquiry or investigation
pending or threatened by judicial or governmental authorities to which the Public Agency
is a party or any property of the Public Agency is subject, which, if determined adversely
to the Public Agency, would individually or in the aggregate (a) adversely affect the
validity or the enforceability of the Loan Agreement, the Loan Note related to the Project
[Public Agency Expenses] or the Loan, (b) otherwise materially and adversely affect the
ability of the Public Agency to comply with its obligations under the Loan Agreement or
the Loan Note related to the Project [Public Agency Expenses], or (c) materially and
adversely affect the acquisition, construction and equipping of the Project [financing of the
Public Agency Expenses].
9. The Public Agency is subject to suit in a court of competent jurisdiction by
the Trustee or the Commission for the failure to pay any amounts due and owing by the
Public Agency under, or the failure to perform any obligation required by, the Loan
Agreement and the Public Agency is not entitled to the defense of sovereign immunity or
any other comparable defense in any such suit.
10. The Resolution has been duly adopted and is valid and binding upon the
Public Agency in accordance with the terms thereof, except to the extent that the
enforceability thereof may be limited by laws relating to bankruptcy or insolvency of the
Public Agency or other similar laws affecting creditors' rights generally or by general
principles of equity.
[Additional opinions regarding the Pledged Revenues, if any, including the validity,
enforceability and priority thereof as may be required by the Administrator, the Bank or
the Trustee.]
All capitalized terms used in this opinion but not defined herein shall have the
meanings ascribed to such terms in the Loan Agreement.
Very truly yours,
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' IC
EXHIBIT B
CERTIFICATE OF PUBLIC AGENCY IN
CONNECTION WITH LOAN TO FINANCE PROJECT
The undersigned, Chairman and Clerk of the Board of County Commissioners (the
"Board") of Collier County, Florida(the "Public Agency"), acting for and on behalf of the
Public Agency, hereby certify as of the date hereof as follows:
1. That the representations and warranties of the Public Agency set forth in the
Loan Agreement, dated as of among the Public Agency, the Florida Local
Government Finance Commission (the "Commission") and JPMorgan Chase Bank, N.A.,
are true and correct in all material respects on the date hereof; the Public Agency is in
compliance with all terms, covenants and conditions of the Loan Agreement on the date
hereof; and no Event of Default (as defined in the Loan Agreement) or condition, event or
act which with notice or lapse of time or both would become an Event of Default exists on
the date hereof.
2. That the Public Agency has incurred, since the date of its last draw under the
Loan Agreement, the Debt incurred in Schedule A attached hereto.
3. That, to the best of our knowledge, within one year from the date hereof the
Public Agency intends to incur the debt pledging the Designated Revenues as described in
Schedule B attached hereto.
4. That there has not been any material adverse change in the financial condition
of the Public Agency since the date the last financial statements were filed with the Bank.
5. That we did heretofore cause to be officially executed the Revenue Note
described in Schedule C attached hereto (the "Loan Note") of the Public Agency and the
Loan Agreement.
6. That the Chairman of the Board has caused to be executed the Loan Note by
[his/her] manual signature,and that said Chairman was on the date [he/she] signed the Loan
Note and is now the duly appointed, qualified and acting Chairman of the Board.
7. That we have caused the official seal of the Public Agency to be imprinted
on the Loan Note, said seal imprinted hereon being the official seal of the Public Agency,
and that said Clerk was on the date [he/she] signed the Loan Note and is now the duly
appointed, qualified and acting Clerk of the Public Agency.
8. That the seal which has been impressed on or otherwise reproduced on the
Loan Note and upon this certificate is the legally adopted,proper and only seal of the Public
Agency.
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9. That there is no litigation pending or,to our knowledge,threatened to restrain
or enjoin the issuance or delivery of the Loan Note or in any way contesting or affecting
any authority for the issuance of the Loan Note, or the validity of the Loan Note, or in any
way contesting the existence or the powers of the Public Agency.
10. That the Public Agency has the power and authority to enter into the Loan
Agreement as authorized by resolution of the Public Agency. Such resolution was duly
adopted by the Board,has not been modified or amended in any manner, and is in full force
and effect as of the date hereof.
11. That no obligation issued or guaranteed by the Public Agency is in default or
has been in default any time after December 31, 1975, as to principal and interest.
12. The computation of the interest rate on the Loan Note issued by the Public
Agency on the date hereof is in compliance with the requirements of Section 215.84(3),
Florida Statutes.
13. To the knowledge of the Public Agency, but without independent
investigation, the Public Agency hereby represents that: (a) it is in compliance with all
applicable provisions of the Anti-Corruption Laws (as defined below) and all applicable
Sanctions (as defined below) in all material respects; (b) none of the Public Agency, any
of its officers or employees, or any agent of the Public Agency that will act in any capacity
in connection with or benefit from the transaction evidenced by the Loan Note, is a
Sanctioned Person (as defined below); and (c) no borrowing, use of proceeds or other
transaction evidenced by the Loan Note will violate any Anti-Corruption Law or applicable
Sanctions.
14. The Public Agency will not knowingly use any of the proceeds derived from
the Loan Note: (a) in furtherance of an offer, payment, promise to pay, or authorization of
the payment or giving of money, or anything else of value, to any Person in violation of
any applicable Anti-Corruption Laws; (b) for the purpose of funding, financing or
facilitating any activities, business or transaction of or with any Sanctioned Person, or in
any Sanctioned County (as defined below); or (c) in any manner that would result in the
violation of any Sanctions applicable to the Public Agency.
For purposes of paragraphs 13 and 14 herein, the following definitions shall apply:
"Anti-Corruption Laws" means, as of the date hereof, the Foreign Corrupt Practices
Act of 1977, as amended, 15 U.S.C. §§ 78dd-1, et seq., and thereafter, during any period
that the Loan Note is outstanding, all similar laws,rules, and regulations of any jurisdiction
applicable to the Public Agency, if any, from time-to-time concerning or relating to bribery
or corruption.
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"Person" means any governmental and other entities, in addition to natural persons,
corporations, partnerships or other legal entity.
"Sanctions" means economic or financial sanctions or trade embargoes imposed,
administered or enforced from time to time by the U.S. government pursuant to
(i) regulations promulgated by the Office of Foreign Assets Control Department of the
Treasury (or any successor United States government office); (ii) the International
Emergency Economic Powers Act, 50 U.S.C. Section 1701 et seq., (iii) the Trading with
the Enemy Act, 50 U.S.C. App. 1 et seq.; and(iv)the September 24, 2001 Executive Order
Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to
Commit, or Support Terrorism.
"Sanctioned Country" means, at any time, a country or territory which is itself the
subject or target of any Sanctions and is named on the list of "Consolidated Sanctions"
maintained by the Office of Foreign Assets Control, Department of the Treasury (or any
successor United States government office or list), or any similar list maintained by the
United States Department of State (or any successor United States government office or
list).
"Sanctioned Person" means, at any time, (a) any Person that is named on the list of
"Special Designated Nationals or Blocked Persons" maintained by the Office of Foreign
Assets Control, Department of the Treasury (or any successor United States government
office or list), or any similar list maintained by the United States Department of State (or
any successor United States government office or list), (b)any Person operating, organized
or resident in a Sanctioned Country or (c) any Person owned or controlled by any such
Person or Persons in the foregoing clauses (a) or(b).
Any terms not otherwise defined herein shall have the meanings assigned such terms
in the Loan Agreement.
IN WITNESS WHEREOF,we have hereunto set our hands and affixed the official
seal of the Public Agency as of this day of
Term of Office Term of Office
(SEAL) Title of Office Commences Expires
Chairman
Clerk
I, [Deputy Clerk] to the Board of County Commissioners of Collier County,Florida,
do hereby certify that each of the above-described individuals are now and have
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continuously been since the dates of beginning of their respective current terms of office
shown above, the duly elected, qualified and acting officers of the Public Agency.
[Deputy Clerk]
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EXHIBIT C
FORM OF CREDIT FACILITY FEES CERTIFICATE
The following shall constitute the letter of credit fees for the [Loan] [Draw] made
by the Commission to the Public Agency on : Basis Points per annum
Pursuant to the Credit Agreement and the Fee Letter between the Commission and
the Bank, dated as of June 6, 2011, the letter of credit fees will increase by 10 basis points
for each ratings downgrade of the Public Agency and by 100 basis points upon an Event
of Default under the Loan Agreement.
The letter of credit fee applicable to each Draw shall be calculated pursuant to
Section 5.02(c) of the Loan Agreement.
Accepted and Approved:
PUBLIC AGENCY
By:
Title:
ADMINISTRATOR
By:
Title:
BANK
By:
Title:
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EXHIBIT D
UNITED STATES OF AMERICA
STATE OF FLORIDA
COLLIER COUNTY, FLORIDA
REVENUE NOTE, DRAW NO.
(JPMorgan Chase Bank)
Principal Sum Date of Issuance Final Maturity Date
KNOW ALL MEN BY THESE PRESENTS, that Collier County, Florida (the
"Public Agency"), for value received, hereby promises to pay, solely from the Designated
Revenues described in the within-mentioned Loan Agreement, to the order of the Florida
Local Government Finance Commission, Tallahassee, Florida, or its successors or assigns
(the "Noteholder"), the Principal Sum stated above advanced pursuant to that certain Loan
Agreement by and among the Florida Local Government Finance Commission, the Public
Agency and JPMorgan Chase Bank, N.A., dated as of (the "Loan
Agreement"), and to pay interest on such Principal Sum from the Date of Issuance
identified above or from the most recent date to which interest has been paid at the interest
rate per annum identified in the Loan Agreement commencing on the Date of Issuance until
such Principal Sum shall have been paid. The Principal Sum hereof shall be payable upon
the Final Maturity Date or earlier prepayment in accordance with the terms of the Loan
Agreement and this Note. The Public Agency agrees to make all Loan Repayments in
accordance with the terms of the Loan Agreement. This Note is subject to optional and
mandatory prepayment in accordance with the Loan Agreement. Such Principal Sum and
interest is payable in any coin or currency of the United States of America which, at the
time of payment, is legal tender for the payment of public and private debts.
[Insert Repayment Schedule]
This Note is issued under the authority of and in full compliance with the
Constitution and statutes of the State of Florida, including, particularly, Chapter 125,
Florida Statutes, and other applicable provisions of law, a resolution duly adopted by the
Public Agency on (the "Resolution"), as such resolution may be
amended and supplemented from time to time, and is subject to all terms and conditions of
the Resolution and the Loan Agreement. Any term used in this Note and not otherwise
defined shall have the meaning ascribed to such term in the Loan Agreement.
This Note is being issued to finance or refinance the costs of . This
Note is secured by and shall be payable from the Designated Revenues as described in the
Loan Agreement.
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Notwithstanding any provision in this Note to the contrary, in no event shall the
interest contracted for, charged or received in connection with this Note (including any
other costs or considerations that constitute interest under the laws of the State of Florida
which are contracted for,charged or received)exceed the maximum rate of interest allowed
under the State of Florida as presently in effect.
This Note, when delivered by the Public Agency pursuant to the terms of the Loan
Agreement and the Resolution, shall not be or constitute an indebtedness of the Public
Agency or of the State of Florida, within the meaning of any constitutional, statutory or
charter limitations of indebtedness, but shall be payable solely from the Designated
Revenues, as provided in the Loan Agreement and the Resolution. No Noteholder shall
ever have the right to compel the exercise of the ad valorem taxing power of the Public
Agency or the State, or taxation in any form of any property therein to pay the Note or the
interest thereon, except to the extent otherwise specifically provided in the Loan
Agreement.
All terms and provisions of the Loan Agreement are hereby incorporated by
reference herein.
IN WITNESS WHEREOF, the Public Agency caused this Note to be signed by
the manual signature of the Chairman of the Board of County Commissioners of the Public
Agency (the "Board") and the seal of the Public Agency to be affixed hereto or imprinted
or reproduced hereon, and attested by the manual signature of the Clerk of the Board and
this Note to be dated the Date of Issuance set forth above.
COLLIER COUNTY, FLORIDA
(SEAL)
By:
Chairman
ATTEST:
Clerk
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EXHIBIT E
FORM OF AGREEMENT RE: CONTINGENCY ACCOUNT
THIS AGREEMENT, dated as of is entered into between Collier
County, Florida(the "Public Agency"), a duly constituted political subdivision of the State
of Florida and U.S. Bank, National Association, as Trustee.
WHEREAS, the Florida Local Government Finance Commission (the
"Commission") is a legal entity and a public body corporate and politic formed pursuant to
Part I, Chapter 163, Florida Statutes(the "Interlocal Act"), which Commission was created
for the benefit of duly constituted counties, municipalities and other public agencies as
described in the Interlocal Act, desiring to participate in a pooled commercial paper loan
program in order to obtain the most cost effective, short-term financing for acquiring,
constructing and equipping capital improvements and for other governmental needs; and
WHEREAS,in furtherance of the foregoing,the Commission shall issue, from time
to time, commercial paper notes to be known as "Florida Local Government Finance
Commission Pooled Commercial Paper Notes, Series A-1 (Governmental Issue)" (the
"Series A Notes"), pursuant to the terms of a certain Trust Indenture, dated as of June 6,
2011 (the "Indenture"), between the Commission and the Trustee; and
WHEREAS, the Public Agency has entered into a Loan Agreement with the
Commission and JPMorgan Chase Bank, N.A., dated as of (the "Loan
Agreement"),pursuant to which the Commission shall loan,from time to time,to the Public
Agency certain proceeds of the Series A Notes to enable the Public Agency to finance
various capital improvements and other governmental needs; and
WHEREAS,the Public Agency has agreed to repay the above-described loans upon
the terms specified in the Loan Agreement; and
WHEREAS, such loan repayments shall be made monthly by the Public Agency to
the Trustee; and
WHEREAS, in order to ensure that adequate moneys shall be on deposit with the
Trustee to meet the obligations of the Public Agency incurred under the Loan Agreement,
the Commission shall require the Public Agency to establish a contingency account with
the Trustee;
NOW, THEREFORE, for and in consideration of the premises hereinafter
contained, the parties hereto agree as follows:
SECTION 1. ESTABLISHMENT OF CONTINGENCY ACCOUNT.
The Trustee agrees to establish and hold for the Public Agency an account entitled"Collier
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County, Florida Commercial Paper Note Contingency Account" (the "Contingency
Account"). The Public Agency agrees to maintain a balance in the Contingency Account
at least equal to 175 basis points (1.75%) times the Loan Amounts outstanding under the
Loan Agreement times one-twelfth (the "Contingency Account Requirement"). In the
event moneys in the Contingency Account are less than the Contingency Account
Requirement, the Trustee shall notify the Administrator of the amount of such deficiency,
which, in turn, shall notify the Public Agency. The Public Agency agrees to cure such
deficiency at the time its next monthly Loan Repayment becomes due in accordance with
the terms of the Loan Agreement. Moneys in the Contingency Account in excess of the
Contingency Account Requirement shall be used as a credit on the next Loan Repayment
due or, if no Loan Repayment shall thereafter be due, such moneys shall be returned to the
Public Agency. No later than the 20th day of each month, the Trustee shall notify the
Administrator of the amounts in the Contingency Account on the 15th day of such month.
SECTION 2. USE OF MONEYS IN CONTINGENCY ACCOUNT. The
moneys in the Contingency Account shall be used solely for the purpose of making the
Public Agency's Loan Repayments arising under the Loan Agreement when the other
moneys received by the Trustee from the Public Agency are insufficient for such purpose.
Moneys in the Contingency Account shall be transferred by the Trustee to the accounts
established by the Indenture in such amounts as shall be owing in relation thereto by the
Public Agency pursuant to the Loan Agreement. Any moneys received by the Trustee as
Loan Repayments made by the Public Agency which are in excess of the amounts required
to be paid by the Public Agency pursuant to the Loan Agreement shall be deposited by the
Trustee into the Contingency Account.
SECTION 3. INVESTMENTS. The moneys in the Contingency Account
shall be invested by the Trustee at the written direction of the Administrator in the securities
described in clause (1), (2), (6), (7) and(8) of the definition of Investment Obligations (as
defined in the Indenture). All investment earnings shall be retained in the Contingency
Account and be utilized in accordance with the terms of this Agreement, including such
earnings being used as a credit toward the next Loan Repayment due. The Trustee shall
not be liable for any loss incurred with respect to any purchase or sale.
SECTION 4. ACCOUNT NOT PART OF TRUST ESTATE. Moneys in
the Contingency Account shall not be part of the Trust Estate established pursuant to the
Indenture. Moneys in the Contingency Account are not pledged to the payment of the
principal of and interest on the Series A Notes. Moneys in the Contingency Account shall
not be used to make the loan repayments of any other public agency participating in the
Pooled Commercial Paper Loan Program.
SECTION 5. REMEDIES. In the event the Public Agency violates any
provision of this Agreement, the Trustee, the Commission and/or the Administrator may
take any action and enforce any remedy as shall be provided by law.
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SECTION 6. NOTICE. The Trustee shall immediately notify the
Administrator of any violation of this Agreement by the Public Agency to which the
Trustee becomes aware.
SECTION 7. AMENDMENTS. This Agreement may be amended at any
time by the parties hereto provided the Administrator and the Bank (as defined in the
Indenture) have agreed in writing to such amendment. The Trustee agrees not to refuse to
execute any amendment hereto which does not materially adversely affect it.
SECTION 8. THIRD PARTY BENEFICIARIES. The Commission and
the Administrator shall be third party beneficiaries to this Agreement.
SECTION 9. TERMINATION. This Agreement shall terminate
simultaneously with the termination of the Loan Agreement; provided, however, if the
Commission and the Public Agency agree upon an earlier termination date,this Agreement
shall terminate on such date.
SECTION 10. DEFINITIONS. Unless the context or use indicates another
meaning or intent, terms not otherwise defined herein shall have the meanings assigned
thereto by the Loan Agreement.
SECTION 11. APPLICABLE LAW. The laws of the State of Florida shall
govern the construction of this Agreement.
SECTION 12. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which, when so executed and delivered, shall be an
original, but such counterparts shall together constitute but one and the same Agreement.
SECTION 13. NOTICES. All notices, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given when hand delivered or
mailed by registered or certified mail, postage prepaid, to the parties at the following
addresses:
Public Agency: Collier County, Florida
3301 East Tamiami Trail
Naples, Florida 33942
Attention: Mark Isackson, Corp. Financial Planning &
Management Services
Telephone: 239/252-8717
Telecopy: 239/403-2366
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Administrator: Florida Association of Counties, Inc.
100 South Monroe Street
Tallahassee, Florida 32301
Attention: Director of Commercial Paper Program
Telephone: (850) 922-4300
Telecopy: (850) 488-7501
Trustee: U.S. Bank National Association
Mail Code EX-FL-UORT
225 E. Robinson Street, Suite 250
Orlando, Florida 32801
Attention: Corporate Trust Services
Telephone: (407) 835-3810
Telecopy: (407) 835-3814
Any of the above parties may,by notice in writing given to the others, designate any further
or different addresses to which subsequent notices, certificates or other communications
shall be sent. Notices to the Trustee shall be effective only upon the receipt thereof by the
Trustee.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written hereon.
COLLIER COUNTY, FLORIDA
By:
Chairman
ATTEST:
By:
Deputy Clerk
U.S. BANK NATIONAL ASSOCIATION
By:
Authorized Officer
ACCEPTED AND ACKNOWLEDGED AS OF
THE DATE FIRST WRITTEN HEREON
FLORIDA ASSOCIATION OF COUNTIES,
INC.
By:
Authorized Officer
E-5
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