Okaloosa County BOCC — October 2, 2012 — reading text

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 Designated 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 34 Packet Pg. 146  8.2.1.a funding requirements for legally mandated or essential governmental services and programs of the Public Agency. Attachment: Okaloosa Loan Agreement (Airport Revenues) (1111 : Approval of Resolution to Refinance Capital Projects Loan) (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 appropriate legally available Non-Ad Valorem Revenues that is similar to the one set forth herein) and the Public Agency is required to appropriate legally available Non-Ad Valorem Revenues in its annual budget pursuant to Section 6.04(a) hereof, 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. 35 Packet Pg. 147  8.2.1.a SECTION 6.06. ADDITIONAL COVENANTS. The Public Agency makes the following additional covenants and representations as of the date first above written Attachment: Okaloosa Loan Agreement (Airport Revenues) (1111 : Approval of Resolution to Refinance Capital Projects Loan) 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 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. 36 Packet Pg. 148  8.2.1.a (i) To the extent allowed by law, the Public Agency will pay to, reimburse or indemnify the Commission, the Administrator, the Bank, the Trustee, Attachment: Okaloosa Loan Agreement (Airport Revenues) (1111 : Approval of Resolution to Refinance Capital Projects Loan) 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 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