Fort Walton Beach Council agenda — 04-12-11 regular — reading text

Non -Ad Valorem Revenues budgeted, appropriated and deposited in the Sinking Fund in accordance with its terms, ( iii) the status of interest on the Note being excluded from gross income for federal income tax purposes under the provisions of Section 103 of the Code and, ( iv) the designation of the Note as a " qualified tax - exempt obligation" under Section 265( b)( 3)( B) of the Code. E. No Default, Etc. No Default shall have occurred and be continuing as of the closing date or will result from the execution and delivery of this Agreement; the representations and warranties made by the City shall be true and correct in all material respects on and as of the closing date, as if made on and as of such date; and the Lender shall have received a certificate from the City to the foregoing effect. F. Other Documents. The Lender shall have received such other documents, certificates and opinions as the Lender or its counsel shall have reasonably requested. 10  SECTION 13. REPRESENTATIONS AND WARRANTIES. The City represents and warrants to the Lender that: A. Organization. The City is a municipal corporation duly organized and validly existing under the laws of the State of Florida. B. Authorization of Agreement and Related Documents.The City has the power and has taken all necessary action to authorize the execution, delivery and performance of the City's obligations under this Agreement and each of the financing documents to which it is a party in accordance with its respective terms. This Agreement has been duly executed and delivered by the City and is, and each of the financing documents to which it is a party when executed and delivered will be, legal, valid and binding obligations of the City enforceable against the City in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization or moratorium applicable to the City and general equitable principles regarding the availability of specific performance. C. Non -Ad Valorem Revenues. The City currently receives the Non -Ad Valorem Revenues, and is legally entitled to covenant to budget and appropriate from such Non -Ad Valorem Revenues sufficient amounts in each Fiscal Year to pay the principal of and interest on the Note, when due, subject to any prior liens or encumbrances on such Non -Ad Valorem Revenues, whether now existing or hereafter created. The Non -Ad Valorem Revenues are estimated to be sufficient to pay the principal of and interest on the Note as the same becomes due and to make all other payments required to be made from such Non -Ad Valorem Revenues by the terms of this Agreement or other instruments to which the City is a party or pursuant to which all or any portion of the Non -Ad Valorem Revenues may be obligated. D. Financial Statements. The financial statements of the City for the year ended September 30, 2010, copies of which have been furnished to the Lender, have been prepared in accordance with generally accepted accounting principles applicable to governmental entities such as the City and present fairly the financial condition of the City as of such date and the results of its operations for the period then ended. Since such date, there has been no material adverse change in the financial condition, revenues including, without limitation, Non Ad- Valorem Revenues), properties or operations of the City. SECTION 14. TAX COMPLIANCE. Neither the Council, the City, nor any third party over whom the Council or the City have control, will make any use of the proceeds of the Note or the Pledged Funds at any time during the term thereof which would cause the Note to be a " private activity bond" within the meaning of Section 103( b)( 1) of the Code or " arbitrage bond" within the meaning of Section 103( b)( 2) of the Code. The City covenants throughout the term of the Note, to comply with the requirements of the Code and the Regulations, as amended from time to time. The City 11 hereby represents and finds that the Note is hereby " deemed designated" as a " qualified tax -exempt obligation" under Section 265( b)( 3) of the Code. SECTION 15. 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: City: City of Fort Walton Beach, Florida 107 Miracle Strip Parkway SW Fort Walton Beach, Florida 32548 -6614 Attention: City Manager, City Attorney, Finance Director and City Clerk Lender: Hancock Bank 113 Designer Circle Dothan, Alabama 36303 Attention: Public Finance Department 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. Communication to the Lender via telecopier shall be confirmed by delivery of a hard copy thereof to the Lender not later than two Business Days after such communication by telecopier. Notices to the Paying Agent shall be effective only upon the receipt thereof by the Paying Agent. SECTION 16. EVENTS OF DEFAULT DEFINED. The following shall be " Events of Default" under this Agreement and the terms " Events of Default" shall mean ( except where the context clearly indicates otherwise), when whenever such term is used in this Agreement, any one or more of the following events: A. Failure by the City to timely pay any amount due hereunder within seven Business Days of the date on which such amount is due and payable ( under the terms of this Agreement); B. Failure by the City to observe and perform any covenant, condition or agreement on its part to be observed or performed under this Agreement for a period of 90 days after written notice, except to the extent some other grace period shall be provided in regard to a covenant, specifying such failure and requesting that it be remedied, is given to the City by the Lender, unless the Lender shall agree in writing to an extension of such time prior to its expiration; C. Any warranty, representation or other statement by the City or by an officer or agent of the City contained in this Agreement or in any instrument furnished in 12 compliance with or in reference to this Agreement is false or misleading in any material adverse respect; D. A petition is filed against the City 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 90 days of such filing; E. The City 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; or F. The City 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 City 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 90 days. SECTION 17. REMEDIES. The Lender may sue to protect and enforce any and all rights, including the right to the appointment of a receiver, existing under the laws of the State of Florida, of the United States of America, or granted and contained in this Agreement, and to enforce and compel the performance of all duties required by this Agreement or by any applicable laws to be performed by the City, the Council or by any officer thereof, and may take all steps to enforce this Agreement to the full extent permitted or authorized by the laws of the State of Florida or the United States of America. Upon the occurrence of an Event of Default specified in Section 16. A., D., E. or F., the Lender may, by written notice to the City, declare all payments of principal and interest on the Note to be immediately due and payable. SECTION 18. NO RECOURSE. No recourse shall be had for the payment of the principal of and interest on the Note or for any claim based on the Note or on this Agreement, against any present or former member or officer of the Council or any person executing the Note. SECTION 19. 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 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 Agreement, provided that interest on any monetary obligation hereunder shall accrue at the applicable rate to and including the date of such payment. 13  SECTION 20. DEFAULT RATE. Upon the occurrence of any Event of Default set forth in Section 16. A., D., E. or F. above commencing from the date of such Event of Default until such Default is remedied or the amounts due hereunder are paid in full, the Note shall bear interest at the Default Rate. The Default Rate shall be equal to the Stated Rate, plus 2% per annum, not to exceed the maximum rate permitted by law. SECTION 21. DEFEASANCE. If, at any time, the City shall have paid, or shall have made provision for payment of, the principal and interest with respect to the Note and all costs and expenses of the Lender payable under this Agreement, then, and in that event, the pledge of and lien on the Pledged Funds in favor of the Lender shall be no longer in effect and the City shall have no further obligation to comply with the covenants contained in Section 10 hereof, other than the covenant contained in paragraph A) of Section 10. For purposes of the preceding sentence, deposit of Federal Securities in irrevocable trust with a banking institution or trust company, for the sole benefit of the Note, with respect to which Federal Securities the principal of and interest will be sufficient to make timely payment of the principal and interest on the Note, shall be considered " provision for payment." SECTION 22. AMENDMENTS, CHANGES AND MODIFICATIONS. This Agreement may be amended by the City, with the prior written consent of the Lender. SECTION 23. BINDING EFFECT. To the extent provided herein, this Agreement shall be binding upon the City and the Lender and shall inure to the benefit of the City and the Lender and their respective successors and assigns. SECTION 24. SEVERABILITY. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not