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A RESOLUTION AUTHORIZING FINANCING DOCUMENTS BY THE CITY OF FOLEY, ALABAMA WITH RESPECT TO $2,920,000 FEDERALLY TAXABLE LEASE PURCHASE CERTIFICATES OF PARTICIPATION, SERIES 2012 (QUALIFIED ENERGY CONSERVATION BONDS - DIRECT PAY) WHICH EVIDENCE THE PROPORTIONATE INTERESTS OF THE OWNERS THEREOF IN LEASE PAYMENTS TO BE MADE BY THE CITY OF FOLEY, ALABAMA PURSUANT TO A LEASE AGREEMENT WITH RESPECT TO ENERGY CONSERVATION EQUIPMENT
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BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FOLEY, ALABAMA (the "City"), as follows:
Section 1. The City does hereby approve, adopt, authorize, direct, find, represent, ratify and confirm:
(a) the acquisition, installation, and financing of energy conservation equipment (the "Equipment") with respect to facilities of the City under Article 7 of Chapter 16, and Chapter 16A, of Title 41 of the Code of Alabama 1975;
(b) the representations of the City in, the terms and provisions of, and the transactions to be undertaken pursuant to, the following documents:
(1) the Escrow Agreement dated December 1, 2012 (the "Escrow Agreement") by Deutsche Bank National Trust Company, as escrow agent (the "Escrow Agent"), Grant Capital Management, Inc., and Schneider Electric Buildings Americas, Inc., and acknowledged by the City;
(2) the Lease Purchase Agreement dated December 1, 2012 (the "Lease Agreement") by Grant Capital Management, Inc., as lessor (the "Lessor"), and the City, as lessee, with respect to the Equipment;
(3) the Assignment dated the dated of delivery by the Lessor to the Escrow Agent with respect to the interests of the Lessor under the Lease Agreement;
(4) the $2,920,000 Federally Taxable Lease Purchase Certificates of Participation, Series 2012 (Qualified Energy Conservation Bonds - Direct Pay), which evidence the proportionate interests of the owners thereof in Lease Payments to be made by the City under the Lease Agreement, to be executed and delivered by the Escrow Agent under the Escrow Agreement;
(5) the Energy Services Contract dated the respective dates of execution, by Schneider Electric Buildings Americas, Inc., and the City, with respect to the Equipment;
(6) Continuing Disclosure Agreement to be dated the date of delivery by the City;
(7) the Preliminary Official Statement and the Official Statement with respect to the Certificates;
(8) the Purchase Agreement to be dated the date of delivery among the Escrow Agent, the City and Joe Jolly & Co., Inc., with respect to the Certificates.
Section 2. The documents described in Section 1 of this resolution (herein collectively the "Financing Documents") are approved in substantially the form and of substantially the content as the Financing Documents presented to and considered by the City Council, with such changes or additions thereto or deletions therefrom as the officer of the City executing those of the Financing Documents to which the City is a party signatory thereto (herein collectively the "City Documents") shall approve, which approval shall be conclusively evidenced by his executing the City Documents as hereinafter provided.
Section 3. The Financing Documents presented to, considered and adopted by the City Council shall be filed in the permanent records of the City.
Section 4. The Mayor of the City is hereby authorized and directed to execute, acknowledge and deliver the City Documents for and on behalf of and in the name of the City. The City Clerk of the City is hereby authorized and directed to attest and seal the same. Any prior execution of the City Documents by any of the aforesaid officers is hereby ratified and confirmed.
Section 5. The City agrees the Certificates shall be awarded and sold to Joe Jolly & Co., Inc., under and pursuant to the Purchase Agreement referenced in Section 1(b)(8).
Section 6. The Official Statement with respect to the Certificates (the "Official Statement") in substantially the form and of substantially the content as the form of Official Statement presented to and considered at this meeting is hereby approved and adopted. The City does hereby find and determine that the Official Statement is correct with respect to the City and does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein with respect to the City, in light of the circumstances under with they were made, not misleading.
Section 7. (a) The Mayor, City Administrator, and City Clerk of the City are hereby authorized and directed to execute, deliver and file such agreements, contracts, documents, instruments and notices as may be necessary or desirable to carry out the provisions of this resolution or complete the financing and transactions herein authorized; and execute and deliver to the purchaser and to the attorneys approving the legality of the Certificates and the Financing Documents such certified copies of proceedings of the City and such closing papers, proofs and statements containing such representations of fact and law as may be necessary to demonstrate the validity of the Certificates and the Financing Documents, the absence of any pending or threatened litigation with respect to the Certificates and the Financing Documents or any matter referred to therein or in this resolution, the qualification of the Certificates as "qualified energy conservation bonds", under the Internal Revenue Code of 1986, as amended, and the exemption of interest on the Certificates from State of Alabama income taxation.
(b) All actions heretofore taken, and all agreements, commitment letters, contracts, documents and instruments heretofore executed and delivered with respect to the Certificates and the Financing Documents and the transactions hereby approved, by any officer or employee of the City, are hereby approved, ratified and confirmed.
Section 8. The City does hereby approve, adopt, ratify, and confirm the seal impressed on these minutes as and for the official corporate seal of the City and said seal shall remain in the custody of the Secretary of the City, who is hereby authorized to affix the same to certificates, contracts, proceedings and other documents of the City.
Section 9. This resolution shall take effect immediately and all ordinances, resolutions, orders, or parts of any thereof which are inconsistent or in conflict with any provision of this resolution hereby are, to the extent of any inconsistency or conflict, repealed.