The Finance Team recommends adoption of the resolution authorizing and approving the issuance by the Community Redevelopment Agency for the Carver Heights/Montclair area of its not to exceed $2,000,000 principal amount of redevelopment revenue note, series 2008.
The Community Redevelopment Agency for the Carver Heights/Montclair area (CRA) recognizes the need for various community improvements. Those improvements which were presented and adopted in the fiscal year 2008-09 budget are as follows:
Undergrounding of Utilities
Berry Park Improvements
Sidewalks/Street Light Improvements
The maximum amount of annual debt service (MADS) for this Note is not to exceed $200,000. The CRA’s 2008-09 budgeted Tax Increment Revenue of $356,907 is sufficient to cover the required debt service. Furthermore, incremental income is expected to increase until the CRA expires on September 30, 2016. In order to provide additional security to the proposed note holder (Wachovia Bank) and assist with the negotiation of a lower interest rate on the CRA’s Note by our Financial Advisor on behalf of the City and CRA, the City covenants to pay after debt service on the City’s 1999 and 2004 Bonds are paid from Half Cent Sales Tax Revenue, Guaranteed Entitlement Revenue and the Public Service Tax, amounts required to be deposited to the reserve account to the extent Tax Increment Revenue is insufficient. The Debt Service Reserve Fund will be funded in an amount equal to approximately $100,000 or an amount equal to six months annual Note Debt Service. City funds would then be used to replenish any drawings out of the CRA Debt Service Reserve Fund, which is expected to be funded out of existing Carver CRA cash balances at closing.
The note, subject to Bond Counsel, will be issued as “Bank Qualified” meaning that it meets the definition of a “qualified tax-exempt obligation” within the meaning of Section 265(b)(3) of the Internal Revenue Code of 1986. This BQ Tax exempt status enables the note holder to deduct certain costs of purchasing the note, thereby allowing them to charge the CRA a lower interest rate.
1. Approve the issuance by the Community Redevelopment Agency for the Carver Heights/Montclair area of its not to exceed $2,000,000 principal amount of redevelopment revenue note, series 2008, with Final Maturity to not extend beyond September 30, 2016 and Maximum Annual Debt Service on the Note not to exceed $200,000, with final authority to accept the Bank’s Commitment and sign the Note Documentation delegated to the City Manager, with review by the City Attorney, Bond Counsel, and City Financial Advisor; or
2. Such alternative action as the Commission may deem appropriate
Annual Debt service will be paid from Tax Increment Revenues until the note is satisfied.
Submission Date and Time: 12/4/2008 4:21 PM____
Prepared by: ______________________
Attachments: Yes____ No ______
Advertised: ____Not Required ______
Attorney Review : Yes___ No ____
Reviewed by: Dept. Head ________
Finance Dept. ____________JB____
Deputy C.M. ___________________
Submitted by:CityManager__________ _
Account No. _________________
Project No. ___________________
WF No. ______________________
RESOLUTION NO. _____________
A RESOLUTION OF THE CITY OF LEESBURG, FLORIDA, AUTHORIZING AND APPROVING THE ISSUANCE BY THE COMMUNITY REDEVELOPMENT AGENCY FOR THE CARVER HEIGHTS/MONTCLAIR AREA OF ITS NOT TO EXCEED $2,000,000 PRINCIPAL AMOUNT OF REDEVELOPMENT REVENUE NOTE, SERIES 2008 IN ACCORDANCE WITH THE REQUIREMENTS OF CHAPTER 163, PART III, FLORIDA STATUTES, AS AMENDED; COVENANTING TO PROVIDE FROM AVAILABLE HALF-CENT SALES TAX REVENUES, GUARANTEED ENTITLEMENT AND PUBLIC SERVICE TAX AMOUNTS REQUIRED TO BE DEPOSITED TO THE RESERVE ACCOUNT FOR SUCH NOTE TO THE EXTENT INCREMENT REVENUES ARE INSUFFICIENT THEREFORE; APPROVING THE SALE OF SAID NOTE BY THE COMMUNITY REDEVELOPMENT AGENCY; AUTHORIZING OFFICERS AND EMPLOYEES OF THE CITY TO TAKE ALL NECESSARY ACTIONS IN CONNECTION THEREWITH; AND PROVIDING AN EFFECTIVE DATE.
TABLE OF CONTENTS
Exhibit A Issuer Resolution
BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF LEESBURG, FLORIDA:
When used in this Resolution, the following terms shall have the following meanings, unless the context clearly otherwise requires. Capitalized terms not defined herein shall have the meaning ascribed to them in the Issuer Resolution as defined below.
“Act” shall mean Chapter 166, Part II, and Section 163.358, Florida Statutes and other applicable provisions of law.
“Available Revenues” shall mean, collectively, the Sales Tax, the Guaranteed Entitlement and the Public Service Tax as defined in Resolution No. 5725 of the Issuer that will remain after all required deposits have been made pursuant to Resolution No. 5725 of the Issuer adopted on August 12, 1999, and Resolution No. 7162 of the Issuer adopted on July 12, 2004, as the same may be modified and amended from time to time (the “Senior Improvement Resolution”), into the funds and accounts created thereunder having apriority in the flow of funds higher than the payments provided for herein and after the payment of the unpaid fees, costs and expenses of any Reserve Product Provider or an issuer of a Liquidity Facility or Credit Facility (all as defined in the Senior Improvement Resolution).
“City” shall mean the City of Leesburg, Florida.
“Deficiency Notification” means a notice from the Issuer to the City asking the City to pay from available revenues the amount of a deficiency in the Reserve Account for the Note and certifying that Increment Revenues are insufficient therefor.
“Issuer” shall mean the Community Redevelopment Agency for the Carver Heights/Montclair Area.
“Issuer Resolution” shall mean the resolution of the Issuer approving the issuance of the Note.
“Note” shall mean the Community Redevelopment Agency for the Carver Heights/Montclair Area Redevelopment Revenue Note, Series 2008.
“Noteholder” or “Holder” or “holder” shall mean any Person who shall be the registered owner of Outstanding Note according to the registration books of the Issuer.
“Resolution” and “this Resolution” shall mean this instrument, as the same may from time to time be amended, modified or supplemented by any and all Supplemental Resolutions.
“Supplemental Resolution” shall mean any resolution of the City amending or supplementing this Resolution, adopted and becoming effective prior to the issuance of the Note or in accordance with the terms of Section 7.1 and Section 7.2 hereof.
Words importing the singular number include the plural number, and vice versa.
This Resolution is adopted pursuant to the provisions of the Act.
In consideration of the purchase and acceptance of the Note by those who shall hold the same from time to time, the provisions of this Resolution shall be deemed to be and shall constitute a contract between the City and the Holders from time to time of the Note. The provisions, covenants and agreements herein set forth to be performed by or on behalf of the City shall be for the equal benefit, protection and security of the Holders of the Note.
It is hereby ascertained, determined and declared as follows:
(a) For the benefit of its inhabitants, the City finds, determines and declares that it is necessary for the continued preservation of the health, welfare, convenience and safety of the City and its inhabitants for the Issuer to issue the Note to acquire and construct the Project.
(b) The City has been advised by the City’s financial advisor that the Note will be issued at lower interest rate that would otherwise be available to the Issuer if the City will agree to pay from Available Revenues amounts sufficient to make required deposits to the Reserve Account for the Note as provided herein.
(c) The Issuer has represented to the City that the Increment Revenues will be sufficient to pay the principal and interest on the Note herein authorized, as the same become due, and to make all deposits required by the Issuer Resolution.
(d) In order to further secure the Issuer’s obligations under the Note the City is willing to covenant to pay from Available Revenues as provided herein an amount equal to the amount of the deficiency in the Reserve Account for the Note. The City’s obligation to make payments hereunder is on parity with the lien thereon granted to the Holder’s of the City’s Capital Improvement Bond Anticipation Note, Series 2006 (Taxable) and the lien granted to the Holders of the City’s Subordinate Capital Improvement Bond Anticipation Note, Series 2008 and the lien granted to the Holders of the City’s Capital Improvement Revenue Note, Series 2007 should the City make any draws thereunder (collectively, the “Parity Obligations”).
The City hereby authorizes the issuance of the Note. The Note shall be issued substantially in accordance with the provisions of the Issuer Resolution attached hereto as Exhibit A.
The Note shall not be or constitute a general obligation or indebtedness of the Issuer or the City as a “Note” within the meaning of Article VII, Section 12 of the Constitution of Florida, but shall be payable solely from the Increment Revenues in accordance with the terms of the Issuer Resolution. The City payment obligations in regard to the Note is limited as described in Article 4 below. No holder of the Note shall ever have the right to compel the exercise of any ad valorem taxing power to pay such Note, or be entitled to payment of such Note and neither the faith and credit nor the taxing power of the City is pledged to the payment obligations of the City hereunder.
Pursuant to the Issuer Resolution, on or before February 1 of each year the Secretary of the Issuer or a designee thereof (the “Authorized Issuer Officer”) and the City Finance Director will determine if Increment Revenues are sufficient to make all required deposits to the Reserve Account for the Note due during the current Fiscal Year. If the Authorized Issuer Officer and the City Finance Director determine that the Issuer has insufficient Increment Revenues to make such payments, the Issuer will notify (a “Deficiency Notice”) the City of the amount of such shortfall. The City hereby agrees to pay to the Issuer from Available Revenues for deposit to the Reserve Account created under the Loan Agreement the amount of the shortfall set forth in the Deficiency Notice. Any such payment shall be made on a pro rata basis with payments due on the Parity Obligations.
The City agrees that it will comply with all provisions of Rule 15c2-12 of the Securities and Exchange Commission applicable to the City in connection with the issuance of the Note and the covenants of the City hereunder. Notwithstanding any other provision of this Resolution, failure of the City to comply with such covenant shall not be considered an Event of Default; however, any Noteholder may take such actions as may be necessary and appropriate, including seeking mandate or specific performance by court order, to cause the City to comply with its obligations pursuant to this Article.
The following events shall each constitute an “Event of Default” hereunder:
(a) The City shall default in its obligations pursuant to Article 4 hereof.
(b) There shall occur the dissolution or liquidation of the City, or the filing by the City of a voluntary petition in bankruptcy, or the commission by the City of any act of bankruptcy, or adjudication of the City as a bankrupt, or assignment by the City for the benefit of its creditors, or appointment of a receiver for the City, or the entry by the City into an agreement of composition with its creditors, or the approval by a court of competent jurisdiction of a petition applicable to the City in any proceeding for its reorganization instituted under the provisions of the Federal Bankruptcy Act, as amended, or under any similar act in any jurisdiction which may now be in effect or hereafter enacted.
(c) The City shall default in the due and punctual performance of any other of the covenants, conditions, agreements and provisions contained in this Resolution on the part of the City to be performed, and such default shall continue for a period of thirty (30) days after written notice of such default shall have been received from any Insurer or the Holders of not less than twenty‑five percent (25 %) of the aggregate principal amount of Note Outstanding or any Credit Bank. Notwithstanding the foregoing, the City shall not be deemed in default hereunder if such default can be cured within a reasonable period of time and if the City in good faith institutes curative action and diligently pursues such action until the default has been corrected.
Any Holder of the Note or any trustee or receiver acting for such Noteholders may either at law or in equity, by suit, action, mandamus or other proceedings in any court of competent jurisdiction, protect and enforce any and all rights under the laws of the State, or granted and contained in this Resolution, and may enforce and compel the performance of all duties required by this Resolution or by any applicable statutes to be performed by the City or by any officer thereof.
The Holder or Holders of the Note in an aggregate principal amount of not less than twenty‑five percent (25%) of the Note then Outstanding may by a duly executed certificate in writing appoint a trustee for Holders of the Note with authority to represent such Noteholders in any legal proceedings for the enforcement and protection of the rights of such Noteholders under this Resolution and such certificate shall be executed by such Noteholders or their duly authorized attorneys or representatives, and shall be filed in the office of the City Clerk. Notice of such appointment, together, with evidence of the requisite signatures of the Holders of not less than twenty‑five percent (25%) in aggregate principal amount of the Note Outstanding and the trust instrument under which any trustee shall have agreed to serve shall be filed with the City and the trustee and notice of appointment shall be given to all Holders of the Note in the same manner as notices of redemption are given under the Issuer Resolution. After the appointment of the first trustee hereunder, no further trustees may be appointed; however, the Holders of a majority in aggregate principal amount of the Note then Outstanding may remove the trustee initially appointed and appoint a successor and subsequent successors at any time.
The Holders of a majority in principal amount of the Note then Outstanding have the right, by an instrument or concurrent instruments in writing executed and delivered to the trustee, to direct the method and place of conducting all remedial proceedings to be taken by any trustee hereunder, provided that such direction shall not be otherwise than in accordance with law or the provisions hereof, and that the trustee shall have the right to decline to follow any such direction which in the opinion of the trustee would be unjustly prejudicial to Holders of the Note not parties to such direction.
No remedy herein conferred upon or reserved to the Noteholders is intended to be exclusive of any other remedy or remedies, and each and every such remedy shall be cumulative, and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute.
No delay or omission of any Noteholder to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of any such default, or an acquiescence therein; and every power and remedy given by Section 6.2 of this Resolution to the Noteholders may be exercised from time to time, and as often as may be deemed expedient.
The City, from time to time and at any time, may adopt such Supplemental Resolutions without the consent of the Noteholders (which Supplemental Resolution shall thereafter form a part hereof) for any of the following purposes:
(a) To cure any ambiguity or formal defect or omission or to correct any inconsistent provisions in this Resolution or to clarify any matters or questions arising hereunder.
(b) To grant to or confer upon the Noteholders any additional rights, remedies, powers, authority or security that may lawfully be granted to or conferred upon the Noteholders.
(c) To add to the covenants and agreements of the City in this Resolution other covenants and agreements thereafter to be observed by the City or to surrender any right or power herein reserved to or conferred upon the Issuer.
(E) To make any other change that, in the opinion of Note Counsel, would not materially adversely affect the security for the Note. In making such determination, Note Counsel shall not take into consideration any Note Insurance Policy.
Subject to the terms and provisions contained in this Section 7.2 and Section 7.1 hereof, the Holder or Holders of not less than a majority in aggregate principal amount of the Note then Outstanding shall have the right, from time to time, anything contained in this Resolution to the contrary notwithstanding, to consent to and approve the adoption of such Supplemental Resolution or Resolutions hereto as shall be deemed necessary or desirable by the City for the purpose of supplementing, modifying, altering, amending, adding to or rescinding, in any particular, any of the terms or provisions contained in this Resolution; provided, however, that if such modification or amendment will, by its terms, not take effect so long as the Note remain Outstanding, the consent of the Holders of such Note shall not be required and such Note shall not be deemed to be Outstanding for the purpose of any calculation of the Outstanding Note under this Section 7.2.
If at any time the City shall determine that it is necessary or desirable to adopt any Supplemental Resolution pursuant to this Section 7.2, the City Clerk shall cause the Registrar to give notice of the proposed adoption of such Supplemental Resolution and the form of consent to such adoption to be mailed, postage prepaid, to all Noteholders at their addresses as they appear on the registration books such notice shall briefly set forth the nature of the proposed Supplemental Resolution and shall state that copies thereof are on file at the offices of the City Clerk for inspection by all Noteholders. The City shall not, however, be subject to any liability to any Noteholder by reason of its failure to cause the notice required by this Section 7.2 to be mailed and any such failure shall not affect the validity of such Supplemental Resolution when consented to and approved as provided in this Section 7.2.
Whenever the City shall deliver to the City Clerk an instrument or instruments in writing purporting to be executed by the Holders of not less than a majority in aggregate principal amount of the Note then Outstanding, which instrument or instruments shall refer to the proposed Supplemental Resolution described in such notice and shall specifically consent to and approve the adoption thereof in substantially the form of the copy thereof referred to in such notice, thereupon, but not otherwise, the City may adopt such Supplemental Resolution in substantially such form, without liability or responsibility to any Holder of any Note, whether or not such Holder shall have consented thereto.
If the Holders of not less than a majority in aggregate principal amount of the Note Outstanding at the time of the adoption of such Supplemental Resolution shall have consented to and approved the adoption thereof as herein provided, no Holder of any Note shall have any right to object to the adoption of such Supplemental Resolution, or to object to any of the terms and provisions contained therein or the operation thereof, or in any manner to question the propriety of the adoption thereof, or to enjoin or restrain the City from adopting the same or from taking any action pursuant to the provisions thereof.
Upon the adoption of any Supplemental Resolution pursuant to the provisions of this Section 7.2, this Resolution shall be deemed to be modified and amended in accordance therewith, and the respective rights, duties and obligations under this Resolution of the City and all Holders of the Note then Outstanding shall thereafter be determined, exercised and enforced in all respects under the provisions of this Resolution as so modified and amended.
The City hereby approves the sale of the Note by the Issuer in accordance with the terms and provisions of the Issuer Resolution.
The City covenants with the Holders of the Note that neither the City nor any Person under its control or direction will make any use of the proceeds of such Note (or amounts deemed to be proceeds under the Code) in any manner which would cause such Note to be an “arbitrage note” within the meaning of Section 148 of the Code, and neither the City nor any such Person shall do any act or fail to do any act which would cause the interest on the Note to become includable in the gross income of the Holder thereof for federal income tax purposes.
The members of the City Commission and the City's officers, attorneys and other agents and employees are hereby authorized to do all acts and things required of them by this Resolution or desirable or consistent with the requirements hereof for the full, punctual and complete performance of all of the terms, covenants and agreements contained in this Resolution, and they are hereby authorized to execute and deliver all documents which shall be required by Note Counsel or the purchaser of the Note to effectuate the sale of the Note.
No representation, statement, covenant, warranty, stipulation, obligation or agreement herein contained, or contained in the Note, or in any certificate or other instrument to be executed on behalf of the City in connection with the issuance of the Note, shall be deemed to be a representation, statement, covenant, warranty, stipulation, obligation or agreement of any member of the governing body, officer, employee or agent of the City in his or her individual capacity, and none of the foregoing persons nor any officer of the City executing any certificate or other instrument to be executed in connection with the issuance of the Note, shall be liable personally thereon or be subject to any personal liability or accountability by reason of the execution or delivery thereof.
If any one or more of the covenants, agreements or provisions of this Resolution 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 and provisions of this Resolution and shall in no way affect the validity of any of the other covenants, agreements or provisions hereof or of the Note issued hereunder.
All resolutions or parts thereof in conflict herewith are hereby superseded and repealed to the extent of such conflict.
This Resolution shall take effect immediately upon its adoption.
[SIGNATURES ON FOLLOWING PAGE]
PASSED, APPROVED AND ADOPTED this 8th day of December, 2008.
CITY OF LEESBURG, FLORIDA
Approved as to Form and Correctness:
Office of City Attorney
RESOLUTION NO. __________
A RESOLUTION OF THE COMMUNITY REDEVELOPMENT AGENCY FOR THE CARVER HEIGHTS/MONTCLAIR AREA AUTHORIZING THE CITY MANAGER OR OFFICER OF THE AGENCY SUBJECT TO THE CONDITIONS HEREOF TO ACCEPT THE PROPOSAL OF WACHOVIA BANK, N.A. TO PROVIDE THE AGENCY WITH A NOT EXCEEDING $2.0 MILLION CREDIT FACILITY TO PAY COSTS ASSOCIATED WITH COMMUNITY REDEVELOPMENT IN THE AGENCY COMMUNITY REDEVELOPMENT AREA (THE “PROJECT”); AUTHORIZING THE EXECUTION AND DELIVERY OF A LOAN AGREEMENT WITH SAID BANK PURSUANT TO WHICH THE AGENCY WILL ISSUE A NOTE TO SECURE THE REPAYMENT OF SAID LOAN; PROVIDING FOR THE PAYMENT OF SUCH NOTE FROM INCREMENT REVENUES ALL AS PROVIDED IN THE LOAN AGREEMENT; AUTHORIZING THE PROPER OFFICIALS OF THE AGENCY TO DO ANY OTHER ADDITIONAL THINGS DEEMED NECESSARY OR ADVISABLE IN CONNECTION WITH THE EXECUTION OF THE LOAN AGREEMENT, THE NOTE, AND THE SECURITY THEREFOR; DESIGNATING THE NOTE AS A “QUALIFIED TAX-EXEMPT OBLIGATION” UNDER SECTION 265(b)(3)(B) OF THE INTERNAL REVENUE CODE OF 1986; AUTHORIZING THE EXECUTION AND DELIVERY OF OTHER DOCUMENTS IN CONNECTION WITH SAID LOAN; PROVIDING FOR SEVERABILITY; AND PROVIDING AN EFFECTIVE DATE.
BE IT RESOLVED BY THE BOARD OF COMMUNITY REDEVELOPMENT AGENCY FOR THE CARVER HEIGHTS/MONTCLAIR AREA:
PASSED, APPROVED AND ADOPTED this 8th day of December, 2008.
COMMUNITY REDEVELOPMENT AGENCY FOR THE CARVER HEIGHTS/MONTCLAIR AREA
Dated as of December ___, 2008
By and Between
COMMUNITY REDEVELOPMENT AGENCY FOR
THE CARVER HEIGHTS/MONTCLAIR AREA
WACHOVIA BANK N.A.
TABLE OF CONTENTS
(The Table of Contents for this Loan Agreement is for convenience of reference only and is not intended to define, limit or describe the scope or intent of any provisions of this Loan Agreement.)
Exhibit A Form of Note....................................................................................................... A-1
Exhibit B Purchaser's Certificate......................................................................................... B-1
THIS LOAN AGREEMENT (the “Agreement”), made and entered into this ____ day of December, 2008, by and between THE COMMUNITY REDEVELOPMENT AGENCY FOR THE CARVER HEIGHTS/MONTCLAIR AREA (the “Agency”), a community redevelopment agency created pursuant to Chapter 163, Part III, Florida Statutes, and WACHOVIA BANK, N.A., a national banking association authorized to do business in Florida, and its successors and assigns (the “Bank”).
W I T N E S S E T H:
WHEREAS, capitalized terms used in these recitals and not otherwise defined shall have the meanings specified in Article I of this Agreement;
WHEREAS, the Agency, pursuant to the provisions of the Florida Constitution, Chapter 163, Part III, Florida Statutes, particularly Section 163.385, Florida Statutes, and any other applicable provisions of law (all of the foregoing, collectively, the “Act”), and Resolution ____, adopted by the Agency on December 8, 2008, is authorized to issue redevelopment revenue bonds for the Agency’s public purpose, provided such borrowing has been authorized by a resolution or ordinance of the governing body of the City of Leesburg, Florida; and
WHEREAS, the City Commission of the City of Leesburg, Florida, adopted Resolution ______ on December 8, 2008, authorizing and approving the issuance by the Agency of its $___________ Redevelopment Revenue Note, Series 2008 (the “Note”); and
WHEREAS, in order to finance the Agency’s cost of certain community redevelopment as more specifically described hereunder (the “Project”), and related costs of issuance, the Bank submitted its commitment, dated ______, 2008, to the Agency (the “Commitment”); and
WHEREAS, the Agency has accepted the Commitment and the Bank is willing to purchase the Note (as hereinafter defined), but only upon the terms and conditions of this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
DEFINITION OF TERMS
. Capitalized terms used in this Agreement and not otherwise defined shall have the respective meanings as follows:
“Act” shall have the meaning assigned to that term in the recitals hereof.
“Additional Amount” shall have the meaning ascribed to such term in Section 3.03 hereof.
“Agreement” shall mean this Loan Agreement and all modifications, alterations, amendments and supplements hereto made in accordance with the provisions hereof.
“Authorized Denomination” shall mean, with respect to the Note, the Outstanding Principal Balance of the Note.
“Bank” shall mean Wachovia Bank, N.A., and its successors.
“Bond Counsel” shall mean, Akerman Senterfitt, Orlando, Florida, or any other attorney at law or firm of attorneys of nationally recognized standing in matters pertaining to the federal tax exemption of interest on obligations issued by states and political subdivisions hired by the Agency to render an opinion on such matters with regard to the Note.
“Business Day” shall mean any day other than a Saturday, a Sunday, or a day on which the office of the Bank at which payments on the Note are due is lawfully closed.
“Chairman: shall mean the Chairman of the Agency.
“City” shall mean the City of Leesburg, Florida, a municipal corporation.
“City Resolution” shall mean Resolution ________ duly adopted by the City Commission of the City on December 8, 2008.
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and the applicable rules and regulations promulgated thereunder.
“Community Redevelopment” shall have the meaning ascribed to such term in the Act.
“Community Redevelopment Area” shall mean those areas of the City so designated as the community redevelopment area of the Agency pursuant to Chapter 163, Part III, Florida Statutes and various resolutions and ordinances of the City.
“Debt Service” means principal and interest, and other debt-related costs, due in connection with the Note, as applicable.
“Default Rate” shall mean the Prime Rate plus two percent (2.0%) provided such rate shall not exceed the highest rate of interest allowed by applicable law.
“Determination of Taxability” shall mean, with respect to the Note, the circumstance of the interest on the Note becoming includable for federal income tax purposes in the gross income of the Bank, or the Note not being a “qualified tax-exempt obligation” under Section 265(b)(3)(B) of the Internal Revenue Code, regardless of whether caused by or within the control of the Agency. A Determination of Taxability will be deemed to have occurred upon (i) the receipt by the Agency or the Bank of an original or a copy of an Internal Revenue Service Technical Advice Memorandum or Statutory Notice of Deficiency; (ii) the issuance of any public or private ruling of the Internal Revenue Service; or (iii) receipt by the Agency or Bank of an opinion of counsel experienced in tax matters relating to municipal bonds, in each case to the effect that the interest on the Note is not excluded from the gross income of the Bank for federal income tax purposes or the Note is not a “qualified tax-exempt obligation”.
“Event of Default” shall mean an Event of Default as defined in Section 5.01 of this Agreement.
“Final Maturity Date” shall mean the date on which all principal and all unpaid interest accrued on the Note shall be due and payable in full, which date shall be, if not sooner due to acceleration or prepayment, ____________.
“Fiscal Year” shall mean the 12-month period commencing October 1 of each year and ending on the succeeding September 30, or such other 12-month period as the Agency may designate as its “fiscal year” as permitted by law.
“Governing Body” shall mean the board of the Agency or its successor in function.
“Interest Payment Date” shall mean each _______ 1 and _______ 1, commencing ____________.
“Investment Securities” shall mean any investment permitted by applicable law including ordinances and resolutions of the Agency.
“Loan” shall refer to an amount equal to the outstanding principal of the Note, together with unpaid interest which has accrued.
“Note” shall mean the Community Redevelopment Agency for the Carver Heights/Montclair Area Redevelopment Revenue Note, Series 2008 issued by the Agency under this Agreement.
“Noteholder” or “Holder” shall mean the Bank as the holder of the Note and any subsequent registered holder of the Note.
“Note Rate” shall mean _______% (as modified by the adjustments as described in Section 3.03 hereof) to be calculated on the basis of a 360-day year of 12, 30-day months.
“Pledged Revenues” shall mean the Tax Increment Revenues.
“Prime Rate” shall mean the rate announced from time to time by Wachovia Bank, N.A., or by its corporate successor, as the Prime Rate (which interest rate is only a benchmark, is purely discretionary and is not necessarily the best or lowest interest rate charged borrowing customers in any subsidiary bank of Wachovia Bank, N.A.).
“Project” shall have the meaning set forth in the “Whereas” clauses to this Agreement, and more specifically means the redevelopment of lands within the Community Redevelopment Area of the Agency to provide_________________________ and any other “redevelopment” in accordance with the provisions of the Act.
“Redevelopment Trust Fund” shall mean the redevelopment trust fund established for the Agency under Section 163.387, Florida Statutes, and various ordinances of the Agency.
“Resolution” shall mean Resolution __________, duly adopted at a meeting of the Agency on December 8, 2008, which, among other things, authorized and confirmed the borrowing of the Loan and execution and delivery of this Agreement and the issuance of the Note.
“Tax Increment Revenues” shall mean the funds deposited into the Redevelopment Trust Fund in accordance with Section 163.387, Florida Statutes. Tax Increment Revenues do not become Pledged Revenues until so deposited.
“Vice Chairman” shall mean the Vice Chairman of the Agency.
. Unless the context clearly requires otherwise, words of masculine gender shall be construed to include correlative words of the feminine and neuter genders and vice versa, and words of the singular number shall be construed to include correlative words of the plural number and vice versa. Any capitalized terms used in this Agreement not herein defined shall have the meaning ascribed to such terms in the Resolution. This Agreement and all the terms and provisions hereof shall be construed to effectuate the purpose set forth herein and to sustain the validity hereof.
. The titles and headings of the Articles and Sections of this Agreement, which have been inserted for convenience of reference only and are not to be considered a part hereof, shall not in any way modify or restrict any of the terms and provisions hereof, and shall not be considered or given any effect in construing this Agreement or any provision hereof or in ascertaining intent, if any question of intent should arise.
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
. The Agency represents and warrants to the Bank as follows:
(a) Existence. The Agency is a community redevelopment agency of the State of Florida, duly created and validly existing under the laws of the State of Florida, with full power to enter into this Agreement, to perform its obligations hereunder and to issue and deliver the Note to the Bank. The making, execution and performance of this Agreement on the part of the Agency and the issuance and delivery of the Note have been duly authorized by all necessary action on the part of the Agency and will not violate or conflict with the Act, or any agreement, indenture or other instrument by which the Agency or any of its material properties is bound.
(b) Validity, Etc. This Agreement, the Note and the Resolution are or will be valid and binding obligations of the Agency enforceable against the Agency in accordance with their respective terms, except to the extent that enforceability may be subject to valid bankruptcy, insolvency, financial emergency, reorganization, moratorium or similar laws relating to or from time to time affecting the enforcement of creditors' rights and except to the extent that the availability of certain remedies may be precluded by general principles of equity.
(c) No Financial Material Adverse Change. No material adverse change in the financial condition of the Agency or the Pledged Revenues has occurred since the most recent audited financial statements of the Agency.
(d) Powers of Agency. The Agency has the legal power and authority to pledge the Pledged Revenues to the repayment of the Loan as described herein.
(e) Authorizations, etc. No authorization, consent, approval, license, exemption of or registration or filing with any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, has been or will be necessary for the valid execution, delivery and performance by the Agency of this Agreement, the Note and the related documents, except such as have been obtained, given or accomplished.
(f) No Lien. The Pledged Revenues are not now pledged or encumbered in any manner.
. The Agency covenants as follows:
The Agency will furnish to the Bank (i) within 270 days or if earlier when available following the end of each Fiscal Year, the audited financial statements of the Agency and (ii) by November 15 of each year the current annual budget of the Agency.
. The Bank represents and warrants to the Agency as follows:
(a) Existence. The Bank is a national banking association, authorized to do business in the State of Florida, with full power to enter into this Agreement, to perform its obligations hereunder and to make the Loan. The performance of this Agreement on the part of the Bank and the making of the Loan have been duly authorized by all necessary action on the part of the Bank and will not violate or conflict with applicable law or any material agreement, indenture or other instrument by which the Bank or any of its material properties is bound.
(b) Validity. This Agreement is a valid and binding obligation of the Bank enforceable against the Bank in accordance with its terms, except to the extent that enforceability may be subject to valid bankruptcy, insolvency, financial emergency, reorganization, moratorium or similar laws relating to or from time to time affecting the enforcement of creditors' rights (and specifically creditors' rights as the same relate to banks) and except to the extent that the availability of certain remedies may be precluded by general principles of equity.
(c) Knowledge and Experience. The Bank (i) has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of making the Loan and investing in the Note, (ii) has received and reviewed such financial information concerning the Agency as it has needed in order to fairly evaluate the merits and risks of making the Loan and investing in the Note; and (iii) is purchasing the Note as an investment for its own account and not with a view toward resale to the public.
(d) Commitment Letter Superceded. The Bank’s Commitment Letter to the Agency dated _______________ is superseded by this Agreement.
. On the date of this Agreement, the Bank shall make available to the Agency the Loan in the principal amount of $____________. The proceeds available under this Agreement shall be used to finance the Project and to pay costs of issuing the Note.
. The Note shall be substantially in the form set forth as Exhibit ”A” to this Agreement. The general terms of the Note shall be as follows:
(b) Interest. The Note shall bear interest at the Note Rate. Upon the occurrence of one or more of the events specified in Section 3.03 of this Agreement, the Note Rate shall be adjusted as therein provided. Interest on the Note shall be computed on the basis of 12, 30-day months and a 360-day year.
Prepayments. The Note shall be subject to prepayment at the option of the Agency, in whole or in part, from any legally available monies at a prepayment price of 100% of the principal amount to be redeemed, plus accrued interest to the prepayment date on the principal being prepaid. Each prepayment shall be made on such date and in such principal amount as shall be specified by the Agency in a written notice delivered to the Noteholder not more than fifteen (15) and not less than five (5) days prior to the specified prepayment date.
Any prepayments shall be applied first to accrued interest, then to other amounts owed the Bank and finally to principal last maturing under the Note.
(c) Principal Payments. The principal of the Note shall be paid as provided in the Note.
. The Note Rate shall be subject to adjustment by the Holder as hereinafter described.
Should subsequent but currently unforeseen events cause the Note to be determined to be a “non-qualified” obligation pursuant to Section 265(b)(3)(B) Internal Revenue Code of 1986, as amended, the Note Rate shall be adjusted to ________.
If (i) a “Determination of Taxability” shall occur or (ii) state or federal tax laws or regulations are amended to cause the interest on the Note to otherwise decrease the after tax yield on the Note to the Bank (directly or indirectly, in whole or in part), then the interest on the Note shall be adjusted to cause the yield on the Note after payment of any increase in tax, to equal what the yield on the Note would have been in the absence of such Determination of Taxability or change or amendment in tax laws or regulations.
The above adjustments shall be cumulative, but in no event shall the interest on the Note exceed the maximum permitted by law. The above adjustments to the interest rate on the Note shall be effective for all periods during which tax treatment of the interest on the Note by the Bank is then affected (the “Taxable Period”). Proper partial adjustment shall be made if the tax law change is effective after the first day of the Bank’s tax year or if the interest on the Note does not accrue for the entire tax year of the Bank. Adjustments which create a circular calculation because the interest on the Note is affected by the calculation shall be carried out sequentially, increasing the interest on the Note accordingly in each successive calculation using as the new value the increase in the Interest Rate on the Note, until the change on the interest rate on the Note causes by the next successive calculation of the adjustment is de minimus.
. Prior to or simultaneously with the issuance of the Note, there shall be filed with the Bank the following, each in form and substance reasonably acceptable to the Bank:
(a) an opinion of counsel to the Agency substantially to the effect that (i) the Resolution has been duly adopted and this Agreement and the Note has been duly authorized, executed and delivered by the Agency and each constitutes a valid, binding and enforceable agreement of the Agency in accordance with their respective terms, except to the extent that the enforceability of the rights and remedies set forth herein may be limited by bankruptcy, insolvency, financial emergency or other laws affecting creditors' rights generally or by usual equity principles; (ii) the Agency’s execution, delivery and performance of this Agreement and execution and issuance of the Note are not subject to any authorization, consent, approval or review of any governmental body, public officer or regulatory authority not heretofore obtained or effected; (iii) the execution, issuance and delivery of the Note has been duly and validly authorized by the Agency and the City, and the Note constitutes a valid and binding special obligation of the Agency enforceable in accordance with its terms; (iv) the Agency (A) is a community redevelopment agency duly organized and validly existing under the laws of the State of Florida, and (B) has power and authority to adopt the Resolution, to execute and deliver this Agreement, to execute and deliver the Note, and to consummate the transactions contemplated by such instruments; (v) the execution, delivery and performance of the Note and this Agreement, and compliance with the terms thereof and hereof, under the circumstances contemplated hereby, do not and will not in any material respect conflict with, or constitute on the part of the Agency a breach or default under, any indenture, mortgage, deed of trust, agreement or other instrument to which the Agency or to which its properties are subject or conflict with, violate or result in a breach of any existing law, administrative rule or regulation, judgment, court order or consent decree to which the Agency or its properties are subject; (vi) to the best of such counsel's knowledge, there is no claim, action, suit, proceeding, inquiry, investigation, litigation or other proceeding, at law or in equity, pending or threatened in any court or other tribunal, state or federal (W) restraining or enjoining, or seeking to restrain or enjoin, the issuance, sale, execution or delivery of the Note, (X) in any way questioning or affecting the validity or enforceability of any provision of this Agreement, the Note, or the Resolution, (Y) in any way questioning or affecting the validity of any of the proceedings or authority for the authorization, sale, execution or delivery of the Note, or of any provision made or authorized for the payment thereof, or (Z) questioning or affecting the organization or existence of the Agency or the right of any of its officers to their respective offices; (vii) the Agency has the legal power to make the capital improvements that comprise the Project and to pay associated costs of issuance, to impose and collect the Pledged Revenues and to grant a lien on the Pledged Revenues as described herein and in the Resolution; and (viii) all conditions contained in the ordinances and resolutions of the Agency and the City precedent to the issuance of the Note have been complied with.
(b) an opinion of Bond Counsel (who may rely on opinion of counsel to the Agency), substantially to such effect that such counsel is of the opinion that: (i) this Loan Agreement constitutes a valid and binding obligation of the Agency enforceable upon the Agency in accordance with its terms; (ii) the Note is a valid and binding special obligation of the Agency enforceable in accordance with its terms, payable solely from the sources provided therefor in this Loan Agreement; (iii) assuming compliance by the Agency with certain covenants relating to requirements contained in the Code interest on the Note is excluded from gross income for purposes of federal income taxation, and (iv) the Note is a “qualified tax-exempt obligation” within the meaning of Section 265(b)(3) of the Code.
(c) a copy of a completed and executed Form 8038-G to be filed with the Internal Revenue Service by the Agency;
(d) the original executed Note and Agreement; and
(e) such other documents as the Bank reasonably may request (including, without limitation, appropriate executed Florida Division of Bond Finance forms).
When the documents and items mentioned in clauses (a) through (e), inclusive, of this Section shall have been filed with the Bank, and when the Note shall have been executed as required by this Agreement, and all conditions of the Resolution have been met, the Agency shall be entitled to make Advances on the Note
. The Agency shall keep at its offices the registration of the Note and the registration of transfers of the Note as provided in this Agreement. The transfer of the Note may be registered only upon the books kept for the registration of the Note and registration of transfer thereof upon surrender thereof to the Agency together with an assignment duly executed by the Bank or its attorney or legal representative in the form of the assignment set forth on the form of the Note attached as Exhibit A to this Agreement; provided, however, that the Note may be transferred only in whole and not in part. In the case of any such registration of transfer, the Agency shall execute and deliver in exchange for the Note a new Note registered in the name of the transferee. In all cases in which the Note shall be transferred hereunder, the Agency shall execute and deliver at the earliest practicable time a new Note in accordance with the provisions of this Agreement. The Agency may make a charge for every such registration of transfer of a Note sufficient to reimburse it for any tax or other governmental charges required to be paid with respect to such registration of transfer, but no other charge shall be made for registering the transfer hereinabove granted. The Note shall be issued in fully registered form and shall be payable in any lawful coin or currency of the United States.
The registration of transfer of the Note on the registration books of the Agency shall be deemed to effect a transfer of the rights and obligations of the Bank under this Agreement to the transferee. Thereafter, such transferee shall be deemed to be the Bank under this Agreement and shall be bound by all provisions of this Agreement that are binding upon the Bank. The Agency and the transferor shall execute and record such instruments and take such other actions as the Agency and such transferee may reasonably request in order to confirm that such transferee has succeeded to the capacity of Bank under this Agreement and the Note.
The registered owner of the Note is hereby granted power to transfer absolute title thereof by assignment thereof to a bona fide purchaser for value (present or antecedent) without notice of prior defenses or equities or claims of ownership enforceable against such owner's assignor or any person in the chain of title and before the maturity of the Note; provided, however, that the Note may be transferred only in whole and not in part and provided further, that no transfer shall be permitted absent the Agency’s (and the Bank's) receipt of a certificate in form and substance similar to the one included as part of Exhibit A hereto from such proposed transferee. Every prior registered owner of the Note shall be deemed to have waived and renounced all of such owner's equities or rights therein in favor of every such bona fide purchaser, and every such bona fide purchaser shall acquire absolute title thereto and to all rights represented thereby.
In the event any Note is mutilated, lost, stolen, or destroyed, the Agency shall execute a new Note of like date and denomination as that mutilated, lost, stolen or destroyed, provided that, in the case of any mutilated Note, such mutilated Note shall first be surrendered to the Agency, and in the case of any lost, stolen, or destroyed Note, there first shall be furnished to the Agency evidence of such loss, theft or destruction together with an indemnity satisfactory to it.
. The person in whose name the Note is registered shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of or on account of the Note shall be made only to the registered owner thereof or such owner's legal representative. All such payments shall be valid and effectual to satisfy and discharge the liability upon the Note, and interest thereon, to the extent of the sum or sums so paid.
. The Agency represents, warrants and covenants that the proceeds of the Note will be used solely for the Project and costs of issuance of the Note, and that such use is permitted by applicable law.
. Until the Note shall have endorsed thereon a certificate of authentication substantially in the form set forth in Exhibit A, duly executed by the manual signature of the registrar as authenticating agent, it shall not be entitled to any benefit or security under this Agreement. The Note shall not be valid or obligatory for any purpose unless and until such certificate of authentication shall have been duly adopted by the registrar, and such certificate of the registrar upon the Note shall be conclusive evidence that such Note has been duly authenticated and delivered under this Loan Agreement.
COVENANTS OF THE AGENCY
. The Agency covenants that it will perform faithfully at all times its covenants, undertakings and agreements contained in this Agreement and the Note or in any proceedings of the Agency relating to the Loan, that it will take all necessary steps to receive the Pledged Revenues, and that it will do nothing to jeopardize its ability to receive the Pledged Revenues.
(a) The Agency covenants that it will promptly pay the principal of and interest on the Note and other costs and expenses due and payable to the Bank under this Agreement at the place, on the dates and in the manner provided herein and in the Note, in accordance with the terms thereof. The Agency does hereby irrevocably pledge (until repayment) the Pledged Revenues as security for the repayment of the Note.
(b) The Note will be a special obligation of the Agency secured solely by the Pledged Revenues. The Note will not constitute a general debt, liability or obligation of the Agency or the State of Florida or any political subdivision thereof within the meaning of any constitutional or statutory provision. The Note shall not constitute a lien upon any property of the Agency except upon the Pledged Revenues.
. The Agency covenants to the purchasers of the Note provided for in this Agreement that the Agency will not make any use of the proceeds of the Note at any time during the respective terms of such Note which, if such use had been reasonably expected on the date the Note was issued, would have caused such Note to be an “arbitrage bond” within the meaning of the Code. The Agency will comply with the requirements of the Code and any valid and applicable rules and regulations promulgated thereunder necessary to insure the exclusion of interest on the Note from the gross income of the holders thereof for purposes of federal income taxation.
. The Agency will not while the Note is Outstanding, without the prior approval of the Bank, issue any debt payable from the Pledged Revenues which debt would have a lien on the Pledged Revenues senior to the lien thereon of the Note.
. The Agency shall maintain compliance with all federal, state and local laws and regulations regarding the acquisition, construction and maintenance of the Project.
. There is hereby established the Community Redevelopment Agency for the Carver Heights/Montclair Area Reserve Account (the “Reserve Account”). The amount required to be on deposit in the Reserve Account shall be $_________ (the “Reserve Account Requirement”). After providing for all due principal and interest on the Note the Agency shall deposit into or credit to the Reserve Account from such sum, if any, as will be necessary to immediately restore the funds on deposit therein to an amount equal to the Reserve Account Requirement. Any excess amount on deposit in the Reserve Account shall be used for any lawful purpose of the Agency.
The Agency hereby covenants that on or before February 1 of each year, the Secretary or the designee thereof and the City Finance Director shall determine if Pledged Revenues are sufficient to make all payments of principal and interest on the Note due to the Holder during such Fiscal Year. If such officer of the Agency and the City’s Finance Director determine that the Agency has insufficient moneys in the Redevelopment Trust Fund to make such payments, it shall notify the City of the amount of such shortfall and request the City to, in accordance with the provisions of the City Resolution, pay to the Agency for deposit to the Reserve Account the amount of such insufficiency.
EVENTS OF DEFAULT AND REMEDIES
. Each of the following is hereby declared an “Event of Default:”
(a) payment of the principal of the Note shall not be made when the same shall become due and payable;
(b) payment of any installment of interest on the Note shall not be made when the same shall become due and payable; or
(c) the Agency shall default in the due and punctual performance of any other of the covenants, conditions, agreements and provisions contained in the Note or in this Agreement and such default shall continue for 30 days after written notice shall have been given to the Agency by the Noteholder specifying such default and requiring the same to be remedied; provided, however, that if, in the reasonable judgment of the Noteholder, the Agency shall proceed to take such curative action which, if begun and prosecuted with due diligence, cannot be completed within a period of 30 days, then such period shall be increased to such extent as shall be necessary to enable the Agency to diligently complete such curative action; or
(d) any representation or warranty of the Agency contained in this Agreement or in any certificate or other closing document executed and delivered by the Agency in connection with the closing of the Loan shall prove to have been untrue in any material respect when executed and delivered, thereby adversely impairing the security for the Note; or
(e) any proceedings are instituted with the consent or acquiescence of the Agency, for the purpose of effecting a compromise between the Agency and its creditors or for the purpose of adjusting the claims of such creditors, pursuant to any federal or state statute now or hereinafter enacted; or
(f) the Agency admits in writing its inability to pay its debts generally as they become due, or files a petition in bankruptcy or makes an assignment for the benefit of its creditors, declares a financial emergency or consents to the appointment of a receiver or trustee for itself or shall file a petition or answer seeking reorganization or any arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any state thereof; or
(g) the Agency is adjudged insolvent by a court of competent jurisdiction or is adjudged bankrupt on a petition of bankruptcy filed against the Agency, or an order, judgment or decree is entered by any court of competent jurisdiction appointing, without the consent of the Agency, a receiver or trustee of the Agency or of the whole or any part of its property and any of the aforesaid adjudications, orders, judgments or decrees shall not be vacated or set aside or stayed within 60 days from the date of entry thereof; or
(h) if, under the provisions of any law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the Agency or of the whole or any substantial part of its property and such custody or control shall not be terminated within 90 days from the date of assumption of such custody or control; or
(i) the Agency defaults in the due and punctual payment of any other obligation or evidence of indebtedness which is secured in whole or in part by a pledge of or payable from the Pledged Revenues or that is a general obligation of the Agency.
. Upon the occurrence and during the continuance of an Event of Default, the Note shall bear interest at the Default Rate and all payments made on the Note during any such period shall be applied first to interest and then to principal. Upon the occurrence and during the continuance of an Event of Default, a Noteholder may proceed to protect and enforce its rights under the laws of the State of Florida or under this Agreement by such suits, actions or special proceedings in equity or at law, or by proceedings in the office of any board or officer having jurisdiction, either for the specific performance of any covenant or agreement contained herein or in aid or execution of any power herein granted or for the enforcement of any proper legal or equitable remedy, as a Noteholder shall deem most effective to protect and enforce such rights. Without limiting the generality of the foregoing, the Noteholder shall have the right to bring a mandamus action to require the Agency to perform its obligations under this Agreement.
In the enforcement of any remedy under this Agreement, to the extent permitted by law, a Noteholder shall be entitled to sue for, enforce payment of and receive any and all amounts then or during any default becoming, and at any time remaining, due from the Agency for principal, interest or otherwise under any of the provisions of this Agreement or of the Note then unpaid, within interest on overdue payments of principal and interest (to the extent permitted by law) at the Default Rate, together with any and all costs and expenses of collection and of all proceedings hereunder and under the Note (including, without limitation, reasonable legal fees in all proceedings, including administrative, appellate and bankruptcy proceedings), but payable from the Pledged Revenues, without prejudice to any other right or remedy of the Noteholder, and to recover and enforce any judgment or decree against the Agency, but solely as provided herein and in a Note, for any portion of such amounts remaining unpaid and interest, costs, and expenses as above provided, and to collect (but only from the Pledged Revenues) in any manner provided by law, the moneys adjudged or decreed to be payable.
. No remedy herein conferred upon or reserved to a Noteholder is intended to be exclusive of any other remedy or remedies herein provided, and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder.
. No delay or omission of a Noteholder to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of any such default or any acquiescence therein; and every power and remedy given by this Agreement to a Noteholder may be exercised from time to time and as often as may be deemed expedient.
A Noteholder may waive any default which in its opinion shall have been remedied before the entry of final judgment or decree in any suit, action or proceeding instituted by it under the provisions of this Agreement or before the completion of the enforcement of any other remedy under this Agreement, but no such waiver shall be effective unless in writing and no such waiver shall extend to or affect any other existing or any subsequent default or defaults or impair any rights or remedies consequent thereon.
. All of the covenants, stipulations, obligations and agreements contained in this Agreement shall be deemed to be covenants, stipulations, obligations and agreements of the Agency to the full extent authorized or permitted by law, and all such covenants, stipulations, obligations and agreements shall be binding upon the successor or successors thereof from time to time, and upon any officer, board, commission, authority, agency or instrumentality to whom or to which any power or duty affecting such covenants, stipulations, obligations and agreements shall be transferred by or in accordance with law.
. This Agreement shall be in full force and effect from the date hereof until the Note and all other sums payable to the Bank hereunder have been paid in full.
. This Agreement may be amended or supplemented from time to time only by a writing duly executed by each of the Agency and the Noteholders.
. Any notice, demand, direction, request or other instrument authorized or required by this Agreement to be given to or filed with the Agency or the Bank, shall be deemed to have been sufficiently given or filed for all purposes of this Agreement if and when sent by certified mail, return receipt requested:
(a) As to the Agency:
Community Redevelopment Agency for
the Carver Heights/Montclair Area
501 Meadow Street
Leesburg, FL 34748
(b) As to the Bank:
1950 Hillsboro Boulevard
Deerfield Beach, FL 33442
or at such other address as shall be furnished in writing by any such party to the other, and shall be deemed to have been given as of the date so delivered or deposited in the United States mail.
Either party may, by notice sent to the other, designate a different or additional address to which notices under this Agreement are to be sent.
. Except as herein otherwise provided, nothing in this Agreement, expressed or implied, is intended or shall be construed to confer upon any person, firm or corporation, other than the Agency and the Noteholder, any right, remedy or claim, legal or equitable, under or by reason of this Agreement or any provision hereof, this Agreement and all its provisions being intended to be and being for the sole and exclusive benefit of the Agency and the Noteholder.
. In case any one or more of the provisions of this Agreement, any amendment or supplement hereto or of the Note shall for any reason be held to be illegal or invalid, such illegality or invalidity shall not affect any other provision of this Agreement, any amendment or supplement hereto or the Note, but this Agreement, any amendment or supplement hereto and the Note shall be construed and enforced at the time as if such illegal or invalid provisions had not been contained therein, nor shall such illegality or invalidity or any application thereof affect any legal and valid application thereof from time to time. In case any covenant, stipulation, obligation or agreement contained in the Note or in this Agreement shall for any reason be held to be in violation of law, then such covenant, stipulation, obligation, or agreement shall be deemed to be the covenant, stipulation, obligation or agreement of the Agency to the full extent from time to time permitted by law.
. In any case where the date of maturity of interest on or principal of the Note or the date fixed for prepayment of the Note shall not be a Business Day, then payment of such interest or principal shall be made on the next succeeding Business Day with the same force and effect as if paid on the date of maturity or the date fixed for prepayment, and no interest on any such principal amount shall accrue for the period after such date of maturity or such date fixed for prepayment.
. 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, and, in making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart.
. This Agreement shall be governed exclusively by and construed in accordance with the applicable laws of the State of Florida.
. Notwithstanding anything to the contrary contained herein or in the Note, or in any other instrument or document executed by or on behalf of the Agency in connection herewith, no present or future Commissioner of the Agency or any officer, employee or agent of the City shall be liable in his or her individual capacity, shall be liable personally for any breach or non-observance of or for any failure to perform, fulfill or comply with any such stipulations, covenants, agreements or obligations, nor shall any recourse be had for the payment of the principal of or interest on the Note or for any claim based thereon or on any such stipulation, covenant, agreement or obligation, against any such person, in his or her individual capacity, either directly or through the Agency or any successor to the Agency, under any rule or law or equity, statute or constitution or by the enforcement of any assessment or penalty or otherwise and all such liability of any such person, in his or her individual capacity, is hereby expressly waived and released.
. THE BANK AND THE AGENCY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THE RESOLUTION, THIS AGREEMENT, THE NOTE OR ANY OTHER AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF EITHER PARTY.
. All of the terms and obligations of the Resolution and the Exhibits hereto are hereby incorporated herein by reference as if all of the foregoing were fully set forth in this Agreement. All recitals appearing at the beginning of this Agreement are hereby incorporated herein by reference.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first set forth herein.
Approved as to form and correctness:
WACHOVIA BANK, N.A.
Title: Authorized Officer
FORM OF NOTE
ANY HOLDER SHALL, PRIOR TO BECOMING A HOLDER, EXECUTE A PURCHASER’S CERTIFICATE IN THE FORM ATTACHED HERETO CERTIFYING, AMONG OTHER THINGS, THAT SUCH HOLDER IS AN “ACCREDITED INVESTOR” AS SUCH TERM IS DEFINED IN THE SECURITIES ACT OF 1933, AS AMENDED, AND REGULATION D THEREUNDER.
REDEVELOPMENT AGENCY FOR THE
CARVER HEIGHTS/MONTCLAIR AREA
REDEVELOPMENT REVENUE NOTE
December ___, 2008
The COMMUNITY REDEVELOPMENT AGENCY FOR THE CARVER HEIGHTS/MONTCLAIR AREA (the “Agency”), for value received, hereby promises to pay, solely from the Pledged Revenues described in the within mentioned Agreement, to the order of Wachovia Bank, N.A., a national banking association, or its successors or assigns (the “Holder”), or at such place as the Holder may from time to time designate in writing the Principal Sum stated above on the Maturity Date stated above, except to the extent principal has been paid prior to the Maturity Date by redemption or otherwise, together with any accrued and unpaid interest, and to pay (but only out of the sources hereinafter mentioned) interest on the outstanding principal amount hereof from the most recent date to which interest has been paid or provided for, or if no interest has been paid, from the Dated Date shown above on ________ and ________ of each year (each, an “Interest Payment Date”), commencing on ________ 1, 2009, until payment of said principal sum has been made or provided for, at the Note Rate. Payments due hereunder shall be 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, which payments shall be made to the Holder hereof by check mailed to the Holder at the address designated in writing by the Holder for purposes of payment or by bank wire or bank transfer as such Holder may specify in writing to the Agency or otherwise as the Agency and the Holder may agree.
The Note Rate may be adjusted in accordance with Sections 3.03 of that certain Loan Agreement by and between the Holder and the Agency, dated as of December ___, 2008 (the “Agreement”). Such adjustments may be retroactive.
All capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Agreement.
Following the occurrence and during the continuance of any Event of Default, as defined in the Agreement, this Note shall bear interest at the Default Rate, as defined in the Agreement. Interest on this Note shall be computed on the basis of a 360 day year of 12, 30-day months.
The Note may be prepaid by the Agency in whole or in part at any time in such manner as shall be determined by the Agency from any legally available monies and as otherwise provided in Section 3.02(c) of the Agreement. Any prepayments shall be applied as provided in the Agreement.
Notice having been given as aforesaid, the principal amount stated in such notice or the whole thereof, as the case may be, shall become due and payable on the prepayment date stated in such notice, together with interest accrued and unpaid to the prepayment date on the principal amount then being paid and the amount of principal and interest then due and payable shall be paid. If, on the prepayment date, funds for the payment of the principal amount to be prepaid, together with interest to the prepayment date on such principal amount, shall have been given to the Holder, as above provided, then from and after the prepayment date interest on such principal amount of this Note shall cease to accrue. If said funds shall not have been so paid on the prepayment date, the principal amount of this Note shall continue to bear interest until payment thereof at the applicable Note Rate provided for herein and in the Agreement.
All payments made by the Agency hereon shall apply first to accrued interest, then to other charges due the Holder, and the balance thereof shall apply to the principal amount then due on this Note as provided in the Agreement.
This Note is authorized to be issued under the authority of and in full compliance with the Constitution and statutes of the State of Florida, including, particularly, Chapter 163, Part III, Florida Statutes, the Florida Constitution, Resolution No. ________ of the Issuer (the “Resolution”), Resolution ______ of the City of Leesburg, Florida and other applicable provisions of law, and is subject to all terms and conditions of the Agreement and the Resolution.
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 nonsurious interest allowed under the State of Florida as presently in effect and to the extent an increase is allowable by such laws, but in no event shall any amount ever be paid or payable by the Issuer greater than the amount contracted for herein. In the event the maturity of this Note is accelerated or prepaid in accordance with the provisions hereof, then such amounts that constitute payments of interest, together with any costs or considerations which constitute interest under the laws of the State of Florida, may never exceed an amount which would result in payment of interest at a rate in excess of that permitted by Section 215.84(3), Florida Statutes, as presently in effect and to the extent an increase is allowable by such laws; and excess interest, if any, shall be cancelled automatically as of the date of such acceleration, or, if theretofore paid, shall be credited on the principal amount of this Note unpaid, but such crediting shall not cure or waive any default under the Agreement or Resolution.
THIS NOTE, WHEN DELIVERED BY THE AGENCY PURSUANT TO THE TERMS OF THE AGREEMENT AND THE RESOLUTION, SHALL NOT BE OR CONSTITUTE AN INDEBTEDNESS OF THE ISSUER OR THE STATE OF FLORIDA (THE “STATE”), WITHIN THE MEANING OF ANY CONSTITUTIONAL, STATUTORY OR CHARTER LIMITATIONS OF INDEBTEDNESS, BUT SHALL BE PAYABLE SOLELY FROM THE PLEDGED REVENUES AND PROVIDED IN THE AGREEMENT AND THE RESOLUTION. THE HOLDER SHALL NEVER HAVE THE RIGHT TO COMPEL THE EXERCISE OF THE AD VALOREM TAXING POWER, OR TAXATION IN ANY FORM OF ANY PROPERTY THEREIN TO PAY THIS NOTE OR THE INTEREST THEREON.
Upon the occurrence of an Event of Default the principal of this Note may become or be declared immediately due and payable before the Maturity Date in the manner, with the effect and subject to the conditions set forth in the Agreement and Resolution. The Holder shall also have such other remedies as described in the Agreement.
The Issuer hereby waives presentment, demand, protest and notice of dishonor. This Note is governed and controlled by the Agreement and reference is hereby made thereto regarding interest rate adjustments, acceleration, and other matters.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Agency has caused this Note to be signed by its Chairman, either manually or with facsimile signature, and the seal of the Agency to be affixed hereto or imprinted or reproduced hereon, and attested by the Secretary, either manually or with facsimile signature, and this Note to be dated the Dated Date set forth above.
Approved as to form and correctness:
FORM OF CERTIFICATE OF AUTHENTICATION
Date of Authentication:
This Note is being delivered pursuant to the within mentioned Agreement.
FOR VALUE RECEIVED the undersigned sells, assigns and transfers unto ___________________________________________ (please print or typewrite name, address and tax identification number of assignee) _________________________________________ the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints ____________________________ Attorney to transfer the within Note on the books kept for registration thereof, with full power of substitution in the premises.
Name of Noteholder:
McLin & Burnsed, P.A.
Community Redevelopment Agency for the
Carver Heights/Montclair Area (the “Agency”)
Ladies and Gentlemen:
The undersigned, as a purchaser of the $________ Community Redevelopment Agency for the Carver Heights/Montclair Area Redevelopment Revenue Note, Series 2008 (the “Note”) dated December ____, 2008, consisting of one typewritten Note, hereby certifies that we have been provided (a) a copy of Agency Resolution No. _________, adopted by the Agency on December 8, 2008, authorizing the issuance of the Note and (the “Resolution”), (b) the Loan Agreement dated as of December ___ 2008 between the Agency and Wachovia Bank, N.A. (the “Agreement”), (c) the legal opinions of Akerman Senterfitt (“Bond Counsel”) and McLin & Burnsed (“Agency Attorney”) of December ____, 2008, and (d) such financial and general information respecting the Pledged Revenues (as such term is defined in the Agreement), and the Note described above as we deem necessary to enable us to make an informed investment judgment with respect to the purchase of said Note and no inference should be drawn that we are relying on Bond Counsel or the Agency Attorney as to any such matters other than their respective legal opinions.
We hereby make the following representations, which representations may be relied upon by the Agency, the Agency Attorney, and by Bond Counsel:
A. We are aware:
(i) that investment in the Note involves various risks;
(ii) that the Note is not a general obligation of the Agency; and
(iii) that the principal or premium, if any, and interest on the Note is payable solely from the sources specified in the Resolution and in the Agreement.
B. We understand that no official statement, offering memorandum or other form of offering document has been prepared or is being used in connection with the offering or sale of the Note (collectively, “Disclosure Documents”), but we have been afforded access to all information we have requested in making our decision to purchase the Note and have had sufficient opportunity to discuss the business of the Agency with its members, employees and others. We have not requested any Disclosure Documents in connection with the sale of the Note. We do not require any further information or data incident to our purchase of the Note.
C. In purchasing the Note, we have relied solely upon our own investigation, examination, and evaluation of the Agency, the Pledged Revenues and other relevant matters.
D. We have knowledge and experience in financial and business matters and are capable of evaluating the merits and risks of our investment in the Note and have determined that we can bear the economic risk of our investment in the Note.
E. We acknowledge the understanding that the Note is not being registered under the Securities Act of 1933, as amended or Chapter 517, Florida Statutes, and that the Resolution and Agreement are not being qualified under the Trust Indenture Act of 1939, as amended, and that the Agency shall have no obligation to effect any such registration or qualification. We also acknowledge that we are an “accredited investor” within the meaning of Chapter 517, Florida Statutes and Regulation D of the 1933 Act.
F. We are not acting as a bond house, broker or other intermediary, and are purchasing the Note as an investment for our own account and not with a present view to a resale or other distribution to the public. Although we retain the right to transfer the Note in the future, we understand that the Note may not be readily tradable.
G. The terms of the Note, as forth in the Note and the Agreement accurately reflect the terms of the Note we have agreed to purchase.
H. We acknowledge that Bond Counsel and the Agency Attorney have not represented us on this transaction and that we are relying on them solely for the matters stated in their respective legal opinions of even date.
I. We have received all documents requested by us incident to our purchase of the Note.
Signed as of the _____ day of __________, _____.