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HomeMy WebLinkAbout2004 08_OPWA_Note Defeasance of Series 1997 1998 Bonds_2004.12.07 OW ASSO PUBLIC WORKS AUTHORITY RESOLUTION NUMBER 2004-08 A RESOLUTION OF THE OW ASSO PUBLIC WORKS AUTHORITY AUTHORIZING THE ISSUANCE, EXECUTION AND DELIVERY OF THE OW ASSO PUBLIC WORKS AUTHORITY REVENUE ANTICIPATION NOTE IN AN AMOUNT NOT TO EXCEED THREE MILLION, EIGHT HUNDRED THOUSAND DOLLARS ($3,800,000.00), TO THE CITY OF OW ASSO, OKLAHOMA, APPROVING THE AGREEMENT, FORM REVENUE ANTICIPATION NOTE AND OTHER DOCUMENTS AND AGREEMENTS AS MAY BE NECESSARY OR REQUIRED; AUTHORIZING THE EXPENDITURE OF PROCEEDS OF THE NOTE TO DEFEASE THE AUTHORITY'S REVENUE BONDS; AND CONT AINING OTHER PROVISIONS RELATING THERETO WHEREAS, the Owasso Public Works Authority was created by a Declaration of Trust, dated as of January 10, 1973, (collectively the "Trust Indenture") for the use and benefit of the City of Owasso, Oklahoma (the "City") under authority of and pursuant to the provisions of Title 600.S. 1981, Section 176 to 180.3 inclusive as amended and supplemented and other applicable statutes of the State 0 f Oklahoma; and, WHEREAS, the Authority has determined that it would be most advantageous at this time for the Authority to provide funds for the defeasance of the Authority's Revenue Refunding Bonds, Series 1997 and the Authority's Revenue Bonds, Series1998; and Anticipation Revenue and WHEREAS, the Authority has determined that the issuance of a to be repaid by the Third Penny Sales Tax would be most advantageous Note WHEREAS, there has been presented to this meeting a form of Agreement and Revenue Anticipation Note, dated as of the 10th day of December, 2004. by and between the Authority and the City of Owasso, Oklahoma (the "Note"). THE OF NOW, THEREFORE, BE IT RESOL VED BY THE TRUSTEES OWASSO PUBLIC WORKS AUTHORITY THAT, TO-WIT: SECTION ONE. The Agreement and form of the Note presented to this meeting be, and hereby is, approved, and the Chairman or Vice-Chairman of the Trustees and the Secretary or any Assistant Secretary of Trustees of the Authority be, and hereby are, authorized, directed, and empowered to execute and deliver in the name of the Authority, the Agreement and the Note in said form and containing the terms and provisions contained in said Note, the execution thereof by such officers being conclusive evidence of such approval, and to execute and deliver .. in the name of and on behalf of the Authority all documents, closing papers, certificates and such other documents as are necessary to accomplish the issuance of the Revenue Anticipation Note. SECTION TWO. The signatures of the officers of the Authority appearing on the Agreement and the Note and other documents and agreements, closing papers and certificates executed. and delivered pursuant to this resolution shall be conclusive evidence of their approval thereof and of their authority to execute and deliver such agreements and documents on behalf of the Authority. the Trustees and the Secretary and they hereby are, authorized execute and deliver such further The Chairman or Vice-Chairman of the Trustees of the Authority be, behalf of the Authority to SECTION THREE or any Assistant Secretary of and empowered for and on agreements and documents and to take such action as such officer or officers may deem necessary or desirable in order to carry out and perform the Note and any contracts, documents, or instruments executed and delivered in connection with the issuance of the Note, and to effect the purposes thereof and to consummate the transactions contemplated thereby. expend the 1997 and the of the Authority is authorized to s Revenue Refunding Bonds, Series The Treasurer the Authority SECTION FOUR. proceeds of the Note to defease Authority's Revenue Bonds, Series1998 this 7th day of December, 2004 PASSED AND APPROVED OW ASSO PUBLIC WORKS AUTHORITY By ATTEST AS TO FORM Copy of Revenue Anticipation Note and Loan Agreement. Original documents are located in the Managerial Filing Room. Filing Cabinet marked "Agreements" under Revenue Anticipation Notes. A Exhibit REVENUE ANTICIPATION NOTE OF THE OW ASSO PUBLIC WORKS AUTHORITY $3.800,000.00 Dated as of the loth day of December, 2004 Owasso. Tulsa County, Oklahoma FOR VALUE RECEIVED, the undersigned, Owasso Public Works Authority, an Oklahoma Public Trust, having the City of Owasso, as its beneficiary, its successors and assigns (collectively, the "Borrower"), promises to pay to the order of the City of Owasso, Oklahoma, an Oklahoma Municipal Corporation, its successors and assigns (collectively, the "City") at its principal office at 111 N. Main, Owasso, Tulsa County, Oklahoma 74055, or at such other place as may be designated in writing by the City, the principal sum of THREE MILLION, EIGHT HUNDRED THOUSAND AND NO/I00 DOLLARS ($3,800,000.00) or so much thereof as shall have been advanced hereon shall be due and payable on or before the 1 st day of December, 2007. Interest on the unpaid portion of the principal balance computed from the date of each payment, until principal is paid in full, at the rate of two percent (2.0%) per annum thereupon shall be due and payable on the 1 st day of December and on the 1 st day of June until principal is paid in full. The Borrower may prepay this Note, in whole or in part, at any time prior to the due date hereof, without penalty. If any payment shall be due on a Saturday or Sunday or upon any banking holiday of the holder hereof, such payment shall be due and payable on the next succeeding banking day and interest shall accrue to such day. This Revenue Anticipation Note is the Revenue Anticipation Note referred to in that certain Loan dated as of the 10th day of December, 2004, by and between the Borrower and the City (the "City") given and entered into to secure this note, the proceeds of which the City is loaning to the Borrower to defease Borrower's Series 1997, Revenue Refunding Bonds and Series 1998, Revenue Bonds. Except as may be herein otherwise specifically provided, the rights and obligations of the Borrower and the City arising by virtue of this Revenue Anticipation Note as well as the Agreement above referred to, shall be governed by the Agreement as if same were specifically incorporated herein, such Agreement surviving the issuance, execution and delivery of this Revenue Anticipation Note. The City may, at any time prior to the due date of payment of this Revenue Anticipation Note call for an early pre-payment in whole, or in part, if it is determined by the City, in its sole discretion, that the funds heretofore advanced pursuant to this Revenue Anticipation Note are needed by the City for its operations, governmental or proprietary, and the Borrower is afforded a reasonable opportunity to obtain reasonably satisfactory refinancing hereof. All parties (makers, sureties, guarantors and all others now or hereafter liable for payment of all or any portion of the indebtedness evidenced by this Revenue Anticipation Note) severally waive demand, presentment, notice of dishonor, protest, notice of protest, and diligence in collecting this Revenue Anticipation Note and diligence in bringing and prosecuting suit against any party bound hereby, and agree that no extension, renewal or partial payment, or release or substitution " 1 the discharge release or shall notice, without maturity, with or of collateral before or after obligation of any party. Upon the failure to pay when due the principal and or interest, the holder hereof shall be entitled, at its option, to extend the term or declare the unpaid principal balance of this Revenue Anticipation Note to be immediately due and payable. A failure by such holder to exercise such option will not constitute a waiver of the right to exercise the same in the event of any subsequent default. After maturity (whether by extension, acceleration or otherwise), interest shall accrue hereon at a rate of interest often percent (10%) per annum. If this Promissory Note is placed with an attorney for collection upon any default, or to defend or enforce any rights of the holder(s) hereunder or any instrument securing payment of this Revenue Anticipation Note, or if this Revenue Anticipation Note is collected through bankruptcy or other judicial proceeding, the Borrower agrees to pay the reasonable attorney fees of the holder(s) of this Revenue Anticipation Note and aU reasonable costs and expenses incurred in connection therewith. OW ASSO PUBLIC WORKS AUTHORITY an Oklahoma Public Trust VL By ,-.,\ \C "',;i"'" ClJI!ll;fllttl~ 0..'\:):.,,,* * 0;," " ~ ~ (/) ~ ,r,",,"li"" I't. w: i;::w ~J.'-.l ~ ,~;.:~ ""w., ~" ~/., 0:>" 10 8;m ,~ ~$"fJ "',. 'i$.jlool.,~iil ~. /:;,~' ' ATTEST 2004 December day of 7 receipted this Delivery CITY OF OW ASSO, OKLAHOMA By ATTEST '" 2 LOAN AGREEMENT THIS LOAN AGREEMENT (the "Agreement") made and entered into as of the loth day of December, 2004, is by and between the Owasso Public Works Authority, an Oklahoma public trust, (the "Authority"), and the City of Owasso, Oklahoma, an Oklahoma Municipal Corporation (the "City"). WITNESSETH WHEREAS, the City has detennined to make a loan to the Authority, aggregating $3,800,000.00 to be evidenced by the Authority's Revenue Anticipation Note payable to the order of the City in the original principal amount not to exceed $3,800,000.00, (the "Note") to enable the Authority, pursuant to certain of its approvals, to defease the Authority's Revenue Bonds; and to make such wilIng IS forth, the City WHEREAS, pursuant to the tenns and conditions hereinafter set loan to be evidenced by the Note; and receipts the general revenues of the Authority, Note is to be made from forth hereinafter. WHEREAS, the payment of the and receivables, under the conditions as set and agree as good mutual agreements herein made and other which are hereby acknowledged, the parties NOW, THEREFORE, in consideration of the valuable consideration, the receipt and sufficiency of follows ARTICLE I this of and conditions terms the THE AUTHORITY NOTES 1.1 The Ci s Commitment. The City agrees, subject to Agreement, to make the loan to the Authority in the amount of $3,000,000.00 1.2 Issuance of the Authori Note. Subject to the tenns and conditions hereof and in reliance on the representations and covenants made herein, the Authority agrees to issue the Note to the City. The loan shall be repaid with interest in accordance with the tenns of the Note. The Note shall be delivered to the City at a closing (the "Closing") which will occur at such time and place as may be agreed on by the Authority and the City. Upon the issuance and delivery of the Note, and the satisfaction of all the conditions precedent of this Agreement, the City shall advance the proceeds of the loan to the Authority to defease the Revenue Bonds. set forth in Exhibit be in substantially the form The Note shall of the Note Tenns 3 1 A attached accrue, be payable and subject to adjustment, as provided for in the Note on the outstanding balance thereon from the date of first advance thereon until payment in full thereof as set hereto Interest shall and unpaid principal forth and provided therein. 1.5 Payments, etc. Payment of principal and interest on the Note and other charges under this Agreement to be made to the City shall be made in lawful money of the United States of America, and shall be made at City's principal office in Owasso, Oklahoma, not later than 11:00 o'clock a.m. on the date due. Ifany such payment falls on a Saturday, Sunday or public holiday at the place of payment thereof, then such due date shall be extended on the next succeeding full business day at such place and interest shall be payable in respect of such extension. 1 ARTICLE II CONDITIONS PRECEDENT 2.1 Conditions. The obligations of the City to make the loan pursuant to this Agreement are subject to there being no Event of Default hereunder or an event which with notice or lapse of time would become an Event of Default hereunder and the City having received in form and substance satisfactory to it: Authority authorizing execution and execution and delivery ofthe Note the Issuance, resolutions of and the certified copy of the and related instruments, A duly Agreement, (a) delivery of this counsel City as Authority, Original duly executed counterparts of this Agreement, documents and certificates respecting the (b) (c) Such certificates, shall reasonably require; reasonably require; of the Defeasance as the City may City counsel shall analysis Such opinions of counsel for the Authority, as breakdown (e) A detailed description and cost reasonably require; and (d) materials and/or information as the City may reasonably request. Such other and further (f) ARTICLE HI SATISFACTION 3.1 S ation. The Note shall constitute a limited and special obligation of the Authority. The principal Ind in : on the Note shall be payable by the Authority solely from, and shall be enforceable only out of the revenues of the Authority being hereby pledged by the Authority to such payment. The Note and all other obligations of the Authority hereunder shall not be construed or considered to be an indebtedness of the City of Owasso, Oklahoma, or any municipality, county or political subdivision of the State of Oklahoma within the meaning of any constitutional or statutory provision of the State of Oklahoma, under any circumstances. SPECIAL OBLIGATION. 2 Satisfaction of Debt. document or m aJ stipulati~" stipulation, ARTICLE IV COVENANTS OF THE AUTHORITY that, so long as the Note remains outstanding 4. Performance of Agreements The Authority shall take all action and do all things which it is authorized by law to take and do in order to perform and observe all covenants and agreements on its part to be performed and observed under this Agreement and the Note and in order to provide for and to assure payment of the principal of the Note and interest thereon when due with the City The Authority hereby agrees Left blank intentionally 4.3 Amendment. The Authority shall not alter, amend or repeal the resolutions described in Section 2.1(a) hereof, or, without the prior written consent of the City, agree to any alteration or amendment of any of the instruments described in Sections 2.1 (b) and 2.1 (c) hereof, or take any action impairing any authority, right or benefit given or conferred by such resolution or instruments. Creation of Charges on Revenues 4.2 interest on the sources referred to in The Authority shall payor cause to be paid the principal of and the due, whether by acceleration or otherwise, but solely from the Payment. same becomes 4.4 Note as the Article III hereof. the and warrants represents Authority The Representations and Warranties of Authori 4.5 City as follows to duly organized, validly existing and in good other states in which it is necessary that the (a) The Authority is an Oklahoma public trust standing under the laws of the State of Oklahoma and all Authority be qualified to do business necessary actions to authorize of the Note, and the other (b) The Authority and the Owasso City Council have taken all entering into this Agreement and to authorize the execution and delivery documents contemplated hereby. cause, constitute or is a party Agreement and, the Note, will not undertaking to which the Authority (c) The execution and delivery of this in a breach of any agreement, contract or other Secretary, of authorize this The Authority shall deliver to the City copies, certified by the Authority's and actions undertaken by the Authority or the Owasso City Council to result (d) an resolutions transaction. its existence in Oklahoma. The Authority shall deliver to the City, within one week after they are prepared, copies of quarterly financial statements 3 '" maintain shall The Authority s (e) (0 the Authority ARTICLE V constitute and "Event of Default' DEFAULT AND REMEDIES more of the following shall Anyone or Events of Default. 5.1 hereunder; and principal in accordance with the when due of interest Nonpayment (a) terms of the Note; (b) The attachment of any involuntary lien in the sum of $25,000 or more, of any kind or character, upon the Revenues, or any portion thereof, except for taxes due but not in default and liens being contested in such a manner as to prevent execution on the Property; or or of $25,000 or more on a days of such judgment (c) The entry against the Authority of any judgment in an amount claim not covered by insurance which is not discharged within thirty (30) becoming a final judgment; or (d) If the Authority shall apply for or consent to the appointment of a receiver, a trustee or liquidator of themselves or itself, or of all or a substantial part of its assets, or (ii) file a petition or answer seeking reorganization or admit (by answer, default or otherwise) the material allegations of a petition filed against them in any reorganization proceeding; or (e) If the Authority shall (i) become insolvent, generally fail to pay, or admit in writing its inability to pay its respective debts as they fall due, (ii) make a general assignment for the benefit of its creditors, (iii) be adjudicated as bankrupt or insolvent, or (iv) file a voluntary petition in bankruptcy or file a petition or answer seeking an arrangement with creditors or to take advantage of any insolvency laws or admit (by answer, default or otherwise) the material allegations of a petition filed against it in any bankruptcy, arrangement or insolvency proceeding, or take or omit to take any action for the purpose or with the result of effecting any of the foregoing; or (f) If the petition in bankruptcy is filed against the Authority and is not dismissed within thirty (30) days, or if an order, judgment or decree by any court of competent jurisdiction shall be entered, adjudicating the Authority to be bankrupt or insolvent, without the application, approval or consent of the Authority or if the Authority shan seek or consent to or fail to timely contest of any order, judgment or decree appointing a custodian of all or a substantial part of its assets, or if the Authority shall seek or consent to, or fail to timely contest any order, judgment or decree approving a petition seeking reorganization or appointing a receiver, trustee or other custodian or liquidator of all or a substantial part of its assets; or (g) The breach of, or default under, any covenant, agreement, term, condition, provision, representation or warranty contained in this Agreement, the Note, not specifically referred to in this Section, if such breach or default is not cured within thirty (30) days of the occurrence thereof; or more than the period of grace, if continue for (h) In any event of default shall occur and shall any, provided with respect thereto, under this Agreement. hereof shall to in Section 5.1 5.2 Remedies of Default. Whenever any Event of Default referred have occurred, the City may take anyone or more of the following remedial steps 4 (a) Declare all amounts payable hereunder and pursuant to the Note or any renewal thereof, to be immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor, or other notices or demands of any kind whatsoever, whereupon the same, together with the accrued interest thereon, shall become immediately due and payable; or whatever action at law or in equity may appear necessary or desirable to collect the thereafter to become due, or to enforce performance or observance of any covenants of the Authority under the Note, this Agreement, or otherwise (b) amount then duv ARTICLE VI MISCELLANEOUS 6.1 Defeasance If the Authority shall payor cause to be paid or otherwise provide for, or there shall otherwise be paid or provided for, the principal and the interest on the Note and all other amounts payable by the Authority at the times and in the manner stipulated in this Agreement or the Note, then all covenants, agreements and other obligations of the Authority hereunder shall thereupon terminate and be discharged and satisfied. 6.2 Waivers, etc No failure on the part of the City to exercise and no delay in exercising, and no course of dealing with respect to, any right under this Agreement, or any other agreement or instrument referred to in this Agreement, shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The remedies herein and therein provided are cumulative and not exclusive of any remedies provided by law. of the parties the benefit to 6.3 Successors, etc. This Agreement shall be binding upon and inure hereto and any subsequent holder ofthe Note and its successors and assigns be construed in accordance with, and governed by Agreement shall This 6.4 Governing Law. the laws of the State of Oklahoma. with may not be amended, modified, or waived except Agreement This Amendments of the parties hereto 6.5 the written consent Notices All requests and notices under the Agreement shall be hand delivered or sent by United States Mail, postage prepaid, addressed as follows, except that either party may be written notice change of address, its counselor its counsel's address for subsequent notices to be given hereunder Authority Owasso Public III N. Main Owasso, Oklahoma 74055 Attention: Susan Kimball Works Authority Chairman to Rodney J. Ray Authority Manager III N. Main Owasso, Oklahoma 74055 With a co 5 City of Owasso III N. Main Owasso, Oklahoma 74055 Attn: Susan Kimball, Mayor City to: Rodney J. Ray City Manager III N. Main Owasso, Oklahoma 74055 With a co addressee If any provision of this Agreement shall be held invalid or unenforceable by any such holding shall not invalidate or render unenforceable any other provision be deemed given upon receipt by the principal 6.8 Severability. court of competent jurisdiction, hereof. Notice given hereunder shall each of This Agreement may be executed in several counterparts constitute one and the same instrument. 6.9 Execution in Couterparts. which shall be an original and all of which shall Owasso Public Works Authority ) By: / Susan Kimball, Chairrn "Authority" City of Owasso. Oklahoma ,.. By: 6 ATTEST: By: (SEAL) ATTEST: By: