2. Resolution 5662 - Board of Investments LoanCity of Kalispell
Post Office Box 1997 - Kalispell, Montana 59903-1997
Telephone (406) 758-7000 Fax - (406) 758-7758
REPORT TO: Doug Russell, City Manager
FROM: Rick Wills, Finance Director
SUBJECT: Resolution No. 5662 — Authorizing Loan with Montana Board of
Investments for Annual Purchases of Budgeted Equipment
MEETING DATE: February 18, 2014 — Regular Council Meeting
BACKGROUND: During those times when the borrowing rates have been
advantageous to the City, it has utilized the Montana Board of Investments (BOI) Intercap Loan
Program to assist it in making purchases of needed equipment. This helps the City in managing
the consistency of its cash flows. The use of this program was again anticipated and calculated
into the fiscal year 2014 budget that was presented and approved by the Council.
The maximum amount of the loan is $400,000 and is for a term of five years. The initial rate is
1.00% and may be adjusted annually by the BOI based upon the market. The City may elect, at
any time, to prepay the loan upon giving 30 days notice. The interest obligation on the loan
begins upon making a draw and only to the extent of the draws that are made. As of this date the
Street Maintenance Department has purchased one (1) used dump truck for $46,500. It is the
intent to make a draw on the loan for this amount so that payments may be made over the term of
up to five years thereby assisting the Street Maintenance Fund with its cash flows. The Street
Maintenance Department has budgeted to purchase another used dump truck using these loan
proceeds. The Solid Waste Department also anticipates making a budgeted purchase of a 25 yard
rear loader solid waste truck during this fiscal year, taking advantage of the loan proceeds and the
favorable rates.
RECOMMENDATION: It is recommended that the City Council, by means of Resolution
No. 5662, authorize the City Manager to execute the necessary agreements included in this
packet to finalize this loan with the Montana Board of Investments Intercap Loan Program.
FISCAL IMPACT: The debt service on the loan proceeds is currently 1.00% and may
be adjusted annually. The City may elect to prepay the loan at any time if it becomes apparent
that the advantage of the cash flow control is outweighed by the cost of loan. If the entire
amount of the loan was drawn by the City immediately, the initial annual debt service would be
approximately $3,800.
Report compiled: February 10, 2014
RESOLUTION NO.5662
RESOLUTION AUTHORIZING PARTICIPATION IN THE BOARD OF INVESTMENTS OF THE
STATE OF MONTANA ANNUAL ADJUSTABLE RATE TENDER OPTION MUNICIPAL FINANCE
CONSOLIDATION ACT BONDS (INTERCAP REVOLVING PROGRAM), APPROVING THE FORM
AND TERMS OF THE LOAN AGREEMENT AND AUTHORIZING THE EXECUTION AND
DELIVERY OF DOCUMENTS RELATED THERETO
BE IT RESOLVED BY THE CITY COUNCIL (the Governing Body) OF THE CITY OF
KALISPELL (the Borrower) AS FOLLOWS:
ARTICLE I
DETERMINATIONS AND DEFINITIONS
Section 1.01. Definitions. The following terms will have the meanings indicated below for all
purposes of this Resolution unless the context clearly requires otherwise. Capitalized terms used in this Resolution
and not defined herein shall have the meanings set forth in the Loan Agreement.
Adjusted Interest Rate means the rate of interest on the Bonds determined in accordance with the
provisions of Section 3.03 of the Indenture.
Authorized Representative shall mean the officers of the Borrower designated and duly empowered
by the Governing Body and set forth in the application.
Board shall mean the Board of Investments of the State of Montana, a public body corporate
organized and existing under the laws of the State and its successors and assigns.
Board Act shall mean Section 2-15-1808, Title 17, Chapter 5, Part 16, MCA, as amended.
Bonds shall mean the Bonds issued by the Board pursuant to the Indenture to finance the Program.
Borrower shall mean the Borrower above named.
Indenture shall mean that certain Indenture of Trust dated March 1, 1991 by and between the Board
and the Trustee pursuant to which the Bonds are to be issued and all supplemental indentures thereto.
Loan means the loan of money by the Board to the Borrower under the terms of the Loan
Agreement pursuant to the Act and the Borrower Act and evidenced by the Note.
Loan Agreement means the Loan Agreement between the Borrower and the Board, including any
amendment thereof or supplement thereto entered into in accordance with the provisions thereof and hereof.
Loan Agreement Resolution means this Resolution or such other form of resolution that the Board
may approve and all amendments and supplements thereto.
Loan Date means the date of closing a Loan.
Loan Rate means the rate of interest on the Loan which is initially 1.00% per annum through
February 15, 2014 and thereafter a rate equal to the Adjusted Interest Rate on the Bonds and up to 1.5% per annum
as necessary to pay Program Expenses.
RESOLUTION - 2
Note means the promissory note to be executed by the Borrower pursuant to the Loan Agreement,
in accordance with the provisions hereof and thereof, in substantially the form set forth in the Promissory Note, or
in such form that may be approved by the Board.
Pr_ og_ram shall mean the INTERCAP Program of the Board pursuant to which the Board will issue
and sell Bonds and use the proceeds to make loans to participating Eligible Government Units.
Project shall mean those items of equipment, personal or real property improvements to be
acquired, installed, financed or refinanced under the Program as set forth in the Description of the Project/Summary
of Draws.
Security Instrument means a security agreement in substantially the form set forth, and, a Uniform
Commercial Code financing statement, in a form acceptable to the Board and the Trustee granting a security
interest in, or a lien on, the property constituting the Project or other real or personal properties added to or
substituted therefor.
Trustee shall mean U. S. Bank National Association (formerly known as First Trust Company of
Montana National Association) and its successors.
Section 1.02. Authority. The Borrower is authorized to undertake the Project and is further
authorized by the Borrower Act to enter into the Loan Agreement for the purpose of obtaining a loan to finance or
refinance the acquisition and installation costs of the Project.
Section 1.03. Execution of Agreement and Delivery of Note. Pursuant to the Indenture and the
Board Act, the Board has issued and sold the Bonds and deposited a part of proceeds thereof in the Loan Fund held
by the Trustee. The Board has, pursuant to the Term Sheet, agreed to make a Loan to the Borrower in the principal
amount of $400,000.00 and upon the further terms and conditions set forth herein, and as set forth in the Term
Sheet and the Loan Agreement.
ARTICLE II
THE LOAN AGREEMENT
Section 2.01. Terms. (a) The Loan Agreement shall be dated as of the Loan Date, in the principal
amount of $400,000.00 and shall constitute a valid and legally binding obligation of the Borrower. The obligation
to repay the Loan shall be evidenced by a Promissory Note. The Loan shall bear interest at the initial rate of 1.00%
per annum through February 15, 2014 and thereafter at the Adjusted Interest Rate, plus up to 1.5% per annum as
necessary to pay the cost of administering the Program (the Program Expenses). All payments may be made by
check or wire transfer to the Trustee at its principal corporate trust office.
(b) The Loan Repayment Dates shall be February 15 and August 15 of each year.
(c) The principal amount of the Loan may be prepaid in whole or in part provided that the
Borrower has given written notice of its intention to prepay the Loan in whole or in part to the Board no later than
30 days prior to the designated prepayment date.
(d) The Prepayment Amount shall be equal to the principal amount of the Loan outstanding,
plus accrued interest thereon to the date of prepayment.
(e) Within fifteen days following an Adjustment Date, the Trustee shall calculate the
respective amounts of principal and interest payable by each Borrower on and with respect to its Loan Agreement
and Note for the subsequent August 15 and February 15 payments, and prepare and mail by first class mail a
statement therefor to the Borrower.
RESOLUTION - 3
Section 2.02. Use and Disbursement of the Proceeds. The proceeds of the Loan will be expended
solely for the purposes set forth in the Description of the Project/Summary of Draws. The proceeds from the sale of
the Note to the Board shall remain in the Borrower's Account pending disbursement at the request of the Borrower
to pay the budgeted expenditures in anticipation of which the Note was issued. Requests for disbursement of the
Loan shall be made to the Board. Prior to the closing of the Loan and the first disbursement, the Borrower shall
have delivered to the Trustee a certified copy of this Resolution, the executed Loan Agreement and Note in a form
satisfactory to the Borrower's Counsel and the Board's Bond Counsel and such other certificates, documents and
opinions as set forth in the Loan Agreement or as the Board or Trustee may require. The Borrower will pay the
loan proceeds to a third party within five business days after the date they are advanced (except for proceeds to
reimburse the Borrower for previously paid expenditures, which are deemed allocated on the date advanced).
Section 2.03. Payment and Security for the Note. In consideration of the making of the Loan to
the Borrower by the Board, the provisions of this Resolution shall be a part of the Agreement of the Borrower with
the Board. The provisions, covenants and Agreements herein set forth to be performed by or on behalf of the
Borrower shall be for the benefit of the Board. The Loan Agreement and Note shall constitute a valid and legally
binding obligation of the Borrower and the principal of and interest on the Loan shall be payable from the general
fund of the Borrower, and any other money and funds of the Borrower otherwise legally available therefor. [The
repayment of the Loan shall be secured by a security interest in the Project being financed.] The Borrower shall
enforce its rights to receive and collect all such taxes and revenues to insure the prompt payment of the Borrower
obligations hereunder.
Section 2.04. Representation Regarding the Property Tax Limitation Act. The Borrower
recognizes and acknowledges that the amount of taxes it may levy is limited by the state pursuant to Section 15-10-
402, et. seq. (the Property Tax Limitation Act). The Borrower is familiar with the Property Tax Limitation Act and
acknowledges that the obligation to repay the Loan under the Agreement and Note are not exceptions to the
provisions of the Property Tax Limitation Act. The Borrower represents and covenants that the payment of
principal of and interest on the Loan can and will be made from revenues available to the Borrower in the years as
they become due, notwithstanding the provisions of the Property Tax Limitation Act.
Section 2.05. Levy and Appropriate Funds to Repay Loan. The Borrower agrees that in order to
meet its obligation to repay the Loan and all other payments hereunder that it will budget, levy taxes for and
appropriate in each fiscal year during the term of the Loan an amount sufficient to pay the principal of and interest
hereon within the limitations of the Property Tax Limitation Act, as may be amended, and will reduce other
expenditures if necessary to make the payments hereunder when due.
ARTICLE III
CERTIFICATIONS, EXECUTION AND DELIVERY
Section 3.01. Authentication of Transcript. The Authorized Representatives are authorized and
directed to prepare and furnish to the Board and to attorneys approving the validity of the Bonds, certified copies of
this Resolution and all other resolutions and actions of the Borrower and of said officers relating to the Loan
Agreement, the Note, the Security Agreement and certificates as to all other proceedings and records of the
Borrower which are reasonably required to evidence the validity and marketability of the Note. All such certified
copies and certificates shall be deemed the representations and recitals of the Borrower as to the correctness of the
statements contained therein.
Section 3.02. Legal Opinion. The attorney to the Borrower is hereby authorized and directed to
deliver to the Board at the time of Closing of the Loan his or her opinion regarding the Loan, the Loan Agreement,
the Note and this Resolution in substantially the form of the opinion set forth in the Attorney's Opinion.
Section 3.03. Execution. The Loan Agreement, Note, Security Agreement and any other
document required to close the Loan shall be executed in the name of the Borrower and shall be executed on behalf
of the Borrower by the signatures of the Authorized Representatives of the Borrower.
RESOLUTION - 4
PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF THE CITY OF
KALISEPLL THIS 18TH DAY OF FEBRUARY, 2014.
Mark Johnson
Mayor
ATTEST:
Theresa White
City Clerk
RESOLUTION - 5
INTERCAP PROGRAM
(An annual adjusting interest rate program for
Montana Local Governments)
TERM SHEET
of
STATE OF MONTANA BOARD OF INVESTMENTS
(herein referred to as the Board)
to
CITY OF KALISPELL
(hereinafter referred to as the Borrower)
BORROWER'S ADDRESS:
PRINCIPAL CONTACT PERSON
PHONE NUMBER:
FACSIMILE NUMBER:
E-MAIL:
LOAN AMOUNT:
TERM OF LOAN:
P.O. Box 1997
Kalispell, MT 59903-1997
Rick Wills, Finance Director
(406) 758-7950
(406) 758-7758
rwills@kalispell.com
FOUR HUNDRED THOUSAND AND 00/100 DOLLARS ($400,000.00)
TERM SHEET ISSUANCE DATE:
TERM SHEET VALID THROUGH:
BORROWER ACT
Rev. 6/10
5 years
December 5, 2013
December 5, 2014
7-7-4101, 7-5-4306, 7-7-4201, M.C.A.
TABLE OF CONTENTS
Section 1. Definitions .................
Section 2. Variable rate program
Section 3. Authorization to borrow.........................................................................................
Section 4. Authorization to undertake project.........................................................................
Section5. Legal debt limits.....................................................................................................
Section 6. Bidding requirements and prevailing wage............................................................
Section 7. Accuracy and timeliness of information on application .........................................
Section 8. Borrower action before loan closing......................................................................
Section 9. Project conformance and cost.................................................................................
Section 10. Modification of term sheet...................................................................................
Section 11. Loan closing submission......................................................................................
Section 12. The loan agreement..............................................................................................
Section 13. Project/project costs.............................................................................................
Section 14. Total project/total project costs............................................................................
Section 15. Specific conditions...............................................................................................
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INTERCAP LOAN PROGRAM
Term Sheet
Section 1. Definitions.
Capitalized terms herein shall have the respective meanings assigned them in this Section 1, unless the context
clearly otherwise requires:
"Act" shall mean Title 17, Chapter 5, Part 16, M.C.A., as amended.
"Adjusted interest rate" shall mean the interest rate on the Loan determined and established pursuant to the
Loan Agreement or Bond Resolution.
"Application" shall mean the completed application form executed by the Borrower and submitted to the Board.
"Board" shall mean the State of Montana Board of Investments, a public body corporate organized and existing
under the laws of the state of Montana and any successor of its functions hereunder.
"Bond" shall mean the bond or Note issued by the Borrower evidencing a Loan from the Board.
"Borrower" shall mean the Eligible Government Unit set forth on the cover hereof.
"Borrower Act" shall mean Section 7-7-4101, 7-5-4306, 7-7-4201, Montana Code Annotated.
"Borrower Resolution" shall mean the resolution, in form and substance satisfactory to the Board, duly enacted
by the Governing Body of the Borrower, authorizing the Loan and prescribing the terms thereof and establishing
the security thereof, and authorizing the execution and delivery of the Loan Agreement and the Note.
"Eligible Government Unit" shall mean a city, town, school district, county or consolidated city -county, county
water and sewer district, a rural fire district, a hospital district, a state agency, organized and existing under the laws
of the state or any other governmental entity authorized by the issuer to participate in the INTERCAP Program.
"Governing Body" shall mean (i) with respect to a county, the Board of County Commissioners, (ii) with
respect to a city, the City Council or Commission, (iii) with respect to a school district, county water or sewer
district, hospital district, or rural fire district, the Board of Trustees, and iv) with respect to any other Eligible
Government Unit, such official body having the authority to enter into contracts and to make binding decisions on
behalf of such unit.
"Initial Interest Rate" shall mean the rate on the Loan from the date of the Loan to the first Interest Adjustment
Date. The current loan rate through February 15, 2014 is 1.00 percent.
"INTERCAP Program or INTERCAP" shall mean the INTERCAP Program of the Board pursuant to which the
Board will issue and sell INTERCAP Bonds and use the proceeds thereof to make loans to Eligible Government
Units pursuant to the Borrower Act.
"INTERCAP Bonds" shall mean the State of Montana Board of Investments Annual Adjustable Rate Tender
Option Municipal Finance Consolidation Act Bonds (INTERCAP Program).
"Interest Adjustment Date" shall mean February 16.
"Loan" shall mean the INTERCAP loan by the Board to the Borrower under the terms of the Loan Agreement
or Bond Resolution.
2
"Loan Agreement" shall mean the agreement entered into between the Board and the Borrower; this agreement
may also be a bond resolution or a supplemental bond resolution for the purpose of issuing bonds or additional
parity bonds with respect to the Borrower's original revenue bond issue.
"Loan Date" shall mean the anticipated date of closing the Loan.
"Maximum Interest Rate" means the maximum rate of interest on the Bonds which shall not exceed fifteen
percent (15%) per annum.
"Note" shall mean the promissory note or Bond issued by the Borrower evidencing a Loan from the Board.
"Pledged Revenues" shall mean the taxes, fees, revenues, assessments or other fiends of the Borrower identified
as to the source for the repayment of the Loan.
"Project" shall mean the portion of the Total Project to be financed by the INTERCAP Loan.
"Project Costs" shall mean the portion of the costs of the Total Project to be financed by the INTERCAP Loan.
"Total Project" shall mean the project as described in Section 14 of which some or all is to be financed by the
INTERCAP Loan.
"Total Proiect Costs" shall mean the entire cost of acquiring, completing or constructing the project as further
described in Section 14.
"System" shall mean, if applicable, the utility operated by the Borrower and from which the revenues pledged
to the repayment of the Loan are pledged.
Section 2. Variable Rate Program.
The INTERCAP Program is a variable rate program with the interest rate adjusting each February 16.
Section 3. Authorization to Borrow.
The Borrower is a duly organized and existing Eligible Government Unit in the state of Montana and has
the power under the Borrower Act to enter into a Loan.
Section 4. Authorization to Undertake Project.
The Governing Body will or has duly authorized the undertaking of the Project. Prior to the actual closing
of the loan, the Borrower will have obtained or will have made all permits, findings and approvals required to the
date hereof by any governmental agency or authority, including, but not limited to the Department of
Environmental Quality (DEQ), the Environmental Protection Agency (EPA), and the Montana Environmental
Protection Agency (MEPA) for the Project. With respect to the Project, the Borrower will comply with all federal
and state regulations.
Section 5. Legal Debt Limits.
The issuance of the Bond or Note in a principal amount equal to the Loan Amount will not (i) cause the
indebtedness of the Borrower to exceed any constitutional or statutory limitation or (ii) violate any term, condition
or provision of or constitute a default under any resolution, contract or agreement to which the Borrower is a party
or by which the Borrower is bound.
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Section 6. Biddine Requirements and Prevailing Wage.
The Governing Body will follow where required by law the bidding statutes concerning public contracts
including Section 18-2-403 M.C.A., preference for Montana labor and prevailing wage.
Section 7. Accuracy and Timeliness of Information on Application.
The information contained in the Application is true, accurate, complete, and not misleading on the date of
its original delivery to the Board and as of the date hereof. Any financial information furnished as part of the
Application is true and complete as of the dates and for the periods indicated, and there has been no material
adverse change in the financial condition of the Borrower. The Borrower covenants that it will notify the Board of
any material adverse change in the financial condition or the Borrower's ability to repay the Loan that may occur
between the date hereof and the Loan Date.
Section 8. Borrower Action Before Loan Closing.
The Borrower recognizes that the closing of the Loan is dependent upon the Borrower's satisfaction of the
terms and conditions and that any action taken by the Borrower with respect to entering into a contract for the
acquisition or construction of the Project prior to the closing of the Loan is at its own risk and agrees to hold the
Board harmless from any loss, damage or claim arising as a result from doing so.
Section 9. Proiect Conformance and Cost.
The Borrower acknowledges and agrees that the Project financed with INTERCAP money conforms with
the Total Project description as presented in Section 14 and that all money necessary to pay for Total Project Costs
will or has been procured prior to the disbursement of INTERCAP funds.
Section 10. Modification of Term Sheet.
The Borrower may request that the Project to be financed with the INTERCAP Loan be modified by either
increasing or decreasing the loan amount requested. The Board will have the sole discretion whether or not to
consent to an increase in the Loan Amount and such consent shall be in writing. The modification may not
substantially change the scope of the Total Project without the Board's approval.
Section 11. Loan Closing Submission.
After all the Terms and Conditions have been met and the Borrower is ready to receive financing, the
Borrower shall submit to the Board the following loan closing documents (Board prepares items 1-3 loan
documents):
1. The Borrower Resolution and Loan Agreement;
2. The Note or Bond duly and validly authorized, issued, and executed by the Borrower;
3. An Opinion of Borrower's Counsel in a form acceptable to the Board; and
4. Such other certificates, documents, opinions and information as are required under the Loan Agreement to
be delivered to the Board as of the date of issuance of the Note and such other opinions and certificates as
the Board may reasonably request to demonstrate compliance with its representations, covenants and
agreements contained in the Loan Agreement.
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Section 12. The Loan Agreement.
The covenants and collateral, if any, securing the Loan shall be contained in the Loan Agreement and such
other security instruments, if any, as the Board shall require. Forms of all INTERCAP Program documents
required to be delivered by the Borrower to the Board will be provided by the Board.
Section 13. Proiect/Proiect Costs.
Finance two tandem dump trucks & a rear loader garbage truck $400,000.00
Section 14. Total Proiect/Total Proiect Costs.
Same as Section 13.
Section 15. Specific Conditions.
These conditions are specific to this Loan. If the general language seems to conflict with the specific
conditions, the specific conditions supersede the general language.
1. The Board will have first lien on the project vehicles.
STATE OF MONTANA BOARD OF INVESTMENTS
Loan Closing Instructions
Attached are two sets of the INTERCAP loan closing documents which should be properly executed (signed) by the
Authorized Representatives of the Borrower. The original set of documents should be returned to the Board of
Investments (the "Board"); please keep the set stamped "Copy" for your files. Please send to:
Board of Investments
Bond Program Office
P.O. Box 200126
Helena, Montana 59620-0126
(444-0001)
LOAN CLOSING DOCUMENTS:
1. Resolution Authorizing Participation in the INTERCAP Pro ram - The Borrower's governing board will
have to authorize the INTERCAP loan. A Resolution is enclosed for your use. An Authorized
Representative should sign and certify the Resolution.
2. Loan Agreement - Check all numbers on the face of the Loan Agreement to be sure that you are in
agreement. Have an Authorized Representative enter into this loan agreement and sign it where indicated.
3. Description of the Project/Summary of Disbursements - Examine the information and numbers on this
document. This is an informational record that will keep a running total of how much has been expended on
the Project.
4. Borrower's Draw Certificate - This document shows the specific funding amounts for the cash advancement
and funding instructions. The certificate has been completed by the BOI; however, it should be carefully
reviewed for accuracy and signed by an Authorized Representative.
Promissory Note - Be sure that this document is signed by an Authorized Representative. Examine the
schedule which shows the principal payments for the life of the loan and interest payments to the next
interest adjustment date.
Opinion of Counsel - Your governing body's general counsel must review the entire transaction and provide
the BOI with an opinion substantially in this format on its letterhead and dated as of the day of the
closing. The opinion calls for several representations and also that the Borrower has perfected a security
interest for the benefit of the BOI for equipment and vehicles, if applicable.
7. Security greement - Applicable only for vehicles and equipment, not real property improvements. The
last page of this agreement shows the list of the security, such as vehicles or equipment that the loan is
financing. Evidence of insurance coverage for the benefit of U. S. Bank National Association, as Trustee,
as discussed in Section 3(b), should be attached to the Security Agreement. In order to perfect the Trustee's
security interest in the Project it will be necessary for your government to file financing statements with the
Secretary of State's office or local county clerk and record's office as may be required by law. In the case
of motor vehicles it will be necessary to perfect a security interest in accordance with 61-3-103 M.C.A. If
your loan covers equipment, you will find one UCC1 form enclosed with BOI as the secured party.
Please send the UCCI form and $7.00 (no cash please) filing fee to the Secretary of State. If the
equipment is considered to be a fixture of real property (ex. a telephone system) there are two UCCI
forms that need to be filed. Please file one with the Secretary of State and the other with your county
government. All other security interests are also to show U. S. Bank National Association, Trustee, as the
secured party. The Security Agreement must be signed.
Certificate of Appropriations (if applicable) - This certificate must be executed and returned to our office.
A new Certificate of Appropriations must be executed and returned to our office by August 15 of each year
the loan is outstanding. The Trustee will remind you in July of its submission requirement.
9. Disbursement Request Form When requesting additional funds, a Disbursement Request Form must be
completed and signed by an Authorized Representative with invoice(s) attached. If your request is
received by Tuesday, the disbursement will be made that Friday. Otherwise, the disbursement will be
made the following Friday. There may be instances when additional documents may be necessary in
addition to a Disbursement Request Form. For example, if your INTERCAP application included two
different projects (e.g. real property and equipment) and your initial draw was for real property (which
didn't require a Security Agreement), when additional funds are requested for the equipment, a Security
Agreement and an Opinion of Counsel reflecting a first lien on the equipment will be needed. More time
may be needed if additional documents are required and we will contact you with specific requirements.
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DATE OF AGREEMENT:
LOAN AMOUNT:
Loan #2539
LOAN AGREEMENT
between
BOARD OF INVESTMENTS
OF THE STATE OF MONTANA
as Lender
and
CITY OF KALISPELL
as Borrower
February 28, 2014
FOUR HUNDRED THOUSAND AND 00/100 DOLLARS ($400,000.00)
City of Kalispell
P.O. BOX 1997
Kalisepll, MT 59903-1997
CONTACT PERSON OF BORROWER:
NAME
TITLE
TELEPHONE
FACSIMILE
E-MAIL
ALTERNATE CONTACT PERSON
NAME
TITLE
TELEPHONE
FACSIMILE
E-MAIL
STATUTORY AUTHORITY FOR BORROWING:
Tammi Fisher
Mayor
(406) 758-7701
(406) 758-7758
tfisher@kalispell.com
Rick Wills
Finance Director
(406) 758-7950
(406) 758-7758
rwills@kalispell.com
7-5-4101, and 7-7-4201, 7-5-4306, M.C.A.
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS AND RULES OF INTERPRETATION.....................................................................2
SECTION 1.01. DEFINITIONS................................................................................................................................................... 2
SECTION 1.02. RULES OF INTERPRETATION............................................................................................................................ 5
SECTION1.03. ATTACHMENTS................................................................................................................................................ 5
ARTICLE II. REPRESENTATIONS, COVENANTS AND WARRANTIES OF BORROWER ...........................5
SECTION 2.01. REPRESENTATIONS AND WARRANTIES............................................................................................................ 5
SECTION 2.02. PARTICULAR COVENANTS OF BORROWER....................................................................................................... 7
ARTICLE III. LOAN TO BORROWER..................................................................................................................7
ARTICLE IV. LOAN PROVISIONS.......................................................................................................................7
SECTION 4.01. COMMENCEMENT OF LOAN AGREEMENT........................................................................................................
7
SECTION 4.02. TERMINATION OF AGREEMENT.......................................................................................................................
8
SECTION 4.03. TERM OF LOAN AGREEMENT...........................................................................................................................
8
SECTION 4.04. LOAN CLOSING SUBMISSIONS.........................................................................................................................
8
SECTION 4.05. INITIAL AND SUBSEQUENT DRAWS OF LOAN...................................................................................................
8
ARTICLE V. LOAN REPAYMENTS AND NOTE................................................................................................9
SECTION 5.01. PAYMENT OF LOAN REPAYMENTS...................................................................................................................
9
SECTION 5.02. DELINQUENT LOAN PAYMENTS......................................................................................................................
9
SECTION5.03. THE NOTE.......................................................................................................................................................
9
ARTICLEVI. TERM..............................................................................................................................................10
ARTICLE VII. OBLIGATIONS OF BORROWER UNCONDITIONAL.............................................................10
SECTION 7.01. OBLIGATIONS OF BORROWER........................................................................................................................
10
ARTICLE VIII. FINANCIAL COVENANTS (GENERAL FUND)....................................................................10
SECTION 8.01. REPRESENTATION REGARDING THE PROPERTY TAX LIMITATION ACT ..........................................................
10
SECTION 8.02. LEVY AND APPROPRIATE FUNDS TO REPAY LOAN........................................................................................
10
SECTION 8.03. REPORTS AND OPINION; INSPECTIONS...........................................................................................................
10
ARTICLE IX. DISCLAIMER OF WARRANTIES...............................................................................................10
ARTICLE X. OPTION TO PREPAY LOAN.........................................................................................................
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ARTICLEXI. ASSIGNMENT...............................................................................................................................
I I
SECTION 11.01. ASSIGNMENT BY BOARD OR TRUSTEE......................................................................................................... 11
SECTION 11.02. ASSIGNMENT BY BORROWER...................................................................................................................... I 1
ARTICLE XII. EVENTS OF DEFAULT AND REMEDIES................................................................................ I I
SECTION 12.01. EVENTS OF DEFAULT DEFINED................................................................................................................... 11
SECTION12.02. NOTICE OF DEFAULT................................................................................................................................... 12
SECTION 12.03. REMEDIES ON DEFAULT.............................................................................................................................. 12
SECTION 12.04. ATTORNEYS FEES AND OTHER EXPENSES................................................................................................... 12
SECTION 12.05. APPLICATION OF MONEYS........................................................................................................................... 13
SECTION 12.06. NO REMEDY EXCLUSIVE, WAIVER AND NOTICE......................................................................................... 13
ARTICLE XIII. MISCELLANEOUS .......................
SECTION13.01. NOTICES.........................................................................................................
SECTION 13.02. BINDING EFFECT............................................................................................
SECTION 13.03. SEVERABILITY................................................................................................
SECTION 13.04. AMENDMENTS, CHANGES AND MODIFICATIONS ............................................
SECTION 13.05. EXECUTION IN COUNTERPARTS......................................................................
SECTION 13.06. APPLICABLE ACT...........................................................................................
SECTION 13.07. CONSENTS AND APPROVALS..........................................................................
SECTION13.08. INDEMNITY.....................................................................................................
SECTION 13.09. WAIVER OF PERSONAL LIABILITY..................................................................
SECTION 13.10. CAPTIONS.......................................................................................................
It
This Loan Agreement (the "Agreement") dated as of February 28, 2014, and entered into between
the Board of Investments of the State of Montana (the 'Board"), a public body corporate and instrumentality of the
state of Montana, and City of Kalispell ("the Borrower"), a political subdivision of the State of Montana;
WITNESSETH:
WHEREAS, pursuant to Section 2-15-1808, Montana Code Annotated and Title 17, Chapter 5, Part
16, Montana Code Annotated (the "Act") and in accordance with the Indenture of Trust, dated as of March 1, 1991,
between the Board and U. S. Bank National Association (formerly known as First Trust Company of Montana
National Association) (the "Trustee"), has established its INTERCAP Revolving Program pursuant to which the
Board will issue, from time to time, its Annual Adjustable Rate Tender Option Municipal Finance Consolidation
Act Bonds (INTERCAP Revolving Program) (the 'Bonds"), for the purpose of making loans to Eligible
Government Units to finance or refinance the acquisition and installation of equipment, personal and real property
improvements, to provide temporary financing of projects or for other authorized corporate purposes of an Eligible
Government Unit (the "Projects"); and
WHEREAS, the Board has agreed to loan part of the proceeds of an issue of such Bonds to the
Borrower in the amount of $400,000.00, and the Borrower has agreed to borrow such amount from the Board,
subject to the terms and conditions of and for the purposes set forth in this Agreement; and
WHEREAS, the Borrower is authorized under the laws of the State of Montana, and has taken all
necessary action, to enter into this Agreement for the Project as identified in the Description of the
Project/Summary of Disbursements attached hereto.
NOW, THEREFORE, for and in consideration of the premises hereinafter contained, the parties
hereby agree as follows:
ARTICLE I. DEFINITIONS AND RULES OF INTERPRETATION.
Section 1.01. Definitions
The following terms will have the meanings indicated below for all purposes of this Agreement unless the
context clearly requires otherwise. Capitalized terms used in this Agreement and not defined herein shall have the
meanings set forth in the Indenture.
"Act" means Section 2-15-1808, Montana Code Annotated and Title 17, Chapter 5, Part 16,
Montana Code Annotated as now in effect and as it may from time to time hereafter be amended or supplemented.
"Adjusted Interest Rate" shall mean the interest rate on the Loan determined and established
pursuant to the Promissory Note hereto and the Loan Agreement or Bond Resolution.
"Adjustment Date" means the Initial Adjustment Date or a Subsequent Adjustment Date.
"Adjustment Period" means the period beginning on an Adjustment Date and ending on the day
before the next succeeding Adjustment Date.
"Amortization Schedule" means the schedule prepared for a loan advance to the Borrower showing
the principal amount advanced, the amortization of the principal, and the interest and principal payments due to the
Subsequent Interest Adjustment Date.
"Authorized Representative" shall mean the officers of the Borrower designated by the Governing
Body and set forth in the Application and signed on behalf of the Borrower by a duly authorized official.
"Board" means the Board of Investments of the State of Montana, a public body corporate
organized and existing under the laws of the State and its successors and assigns.
"Bonds" means the Board of Investments of the State of Montana's Annual Adjustable Rate Tender
Option Municipal Finance Consolidation Act Bonds (INTERCAP Revolving Program) authorized to be issued for
the Program.
"Borrower" means City of Kalispell, the Eligible Government Unit, which is borrowing and using
the proceeds of the Loan to finance, refinance or be reimbursed for, all or a portion of the Cost of the Total Project.
"Borrower Act" means 7-5-4101, and 7-7-4201, 7-7-4306 , the section of Montana Code
Annotated that authorizes an Eligible Government Unit to borrow money on terms consistent with the Program.
"Borrower Resolution" means a resolution, duly and validly adopted by a Borrower authorizing the
execution and delivery to the Board of an Agreement and Note, in substantially the form provided, or such other
form of Resolution that the Board may approve and all amendments and supplements thereto.
"Commencement Date" means February 28, 2014, the date of the Agreement when the term of this
Agreement begins and the obligation of the Borrower to make Loan Repayments begins to accrue.
"Counsel" means an attorney or firm of attorneys duly admitted to practice law before the highest
court of any state.
"Default" means an event or condition the occurrence of which would, with the lapse of time or the
giving of notice or both, become an Event of Default.
"Eligible Government Unit" shall mean any municipal corporation or political subdivision of the
state, including without limitation any city, town, county, school district, or other special taxing district or
assessment or service district authorized by law to borrow money or any board, agency, or department of the state,
or the board of regents of the Montana university system when authorized by law to borrow money.
"Event of Default" means any occurrence or event described in Article X hereof.
"Fiscal Year" means the fiscal year of the Borrower beginning on July 1 and ending June 30.
"Governing Body" shall mean (i) with respect to a county, the Board of County Commissioners,
(ii) with respect to a city, the City Council or Commission, and (iii) with respect to a school district, county water
or sewer district, hospital district, rural fire district, or any other special purpose district, the Board of Trustees.
"Indenture" means that certain Indenture of Trust, dated as of March 1, 1991, by and between the
Board and the Trustee, as originally executed or as it may from time to time be supplemented, modified or amended
in accordance with its terms.
"Initial Adjustment Date" means the first February 16 following the date of the Agreement.
"Initial Interest Rate" means the Loan Rate from the date of the Agreement to the Initial
Adjustment Date.
"Loan" means the loan of money by the Board to the Borrower under the terms of this Agreement
pursuant to the Act and the Borrower Act, evidenced by the Note.
"Loan Agreement" or "Agreement" means this Agreement, including, the attachments hereto, and
the Security Instrument, if any, as originally executed or as they may from time to time be supplemented, modified
or amended in accordance with the terms hereof and of the Indenture.
"Loan Date" means the date of closing a Loan.
"Loan Rate" means the rate of interest on the Loan as provided for in Section 5.01 of this
Agreement.
"Loan Repayment Date" means February 15th and August 15th or, if any such day is not a
Business Day, the next Business Day thereafter, during the term of the Loan.
Agreement.
"Loan Repayments" means the payments payable by the Borrower pursuant to Article V of this
"Loan Term" means the term provided for in Article VI of this Agreement.
"Maximum Interest Rate" means the maximum rate of interest on the Bonds which shall not exceed
fifteen percent (15%) per annum.
"Note" means the promissory note executed and delivered by the Borrower attached hereto and
made a part hereof.
"Program" means the Board's INTERCAP Program established under the Act and pursuant to
which the Board finances Projects for Eligible Government Units.
"Program Expenses" means the expenses of the Program, including (without limitation) the fees
and expenses of the Trustee and such other fees and expenses of the Program or of the Board relating thereto as
shall be approved by the Board.
"Project" means those items of equipment, personal or real property improvements to be acquired,
installed, financed or refinanced under the Program and set forth in the Description of the Project/Summary of
Disbursements attached hereto.
"Project Costs" shall mean the portion of the costs of the Total Project to be financed by the
INTERCAP Loan. The Project Costs may not exceed the Loan Amount as set forth on the cover hereof.
"Security Instrument" means a Security Agreement in substantially the form set forth hereto, and, a
Uniform Commercial Code financing statement, in a form acceptable to the Board and the Trustee granting a
security interest in, or a lien on, the property constituting the Project or other real or personal properties added to or
substituted therefor.
"Series Supplemental Indenture of Trust" means a Supplemental Indenture of Trust authorizing the
issuance of an additional series of bonds in accordance with the provisions of the Indenture.
"State" means the state of Montana.
"Subsequent Interest Adjustment Date or Subsequent Adjustment Date" means February 16 in the
years the Loan remains outstanding.
"Term Sheet" shall mean the document containing the terms and conditions issued by the Board to
the Borrower that must be satisfied prior to entering into a Loan Agreement.
"Term Sheet Issuance Date" means the date the Board executes its Term Sheet under the Board's
Program.
"Total Project" shall mean the project as described in Section 14 of the Term Sheet and/or Section
2 of the application, of which some or all is to be financed by the INTERCAP Loan.
4
"Total Project Costs" shall mean the entire cost of acquiring, completing or constructing the project
as further described in Section 14 of the Terms & Conditions Sheet and/or Section 2 of the application.
"Trustee" means the U. S. Bank National Association (formerly known as First Trust Company of
Montana National Association), a corporation organized and existing under the laws of the United States, or its
successor as trustee as provided in the Indenture.
Section 1.02. Rules of Interpretation.
For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise
requires:
(a) "This Agreement" means this instrument as originally executed and as it may from time to time
be modified or amended.
(b) All references in this instrument to designated "Articles", "Sections" and other subdivisions are
to the designated Articles, Sections and other subdivisions of this instrument as originally executed. The
words "herein", "hereof', "hereunder", and "herewith" and other words of similar import refer to this
Agreement as a whole and not to any particular Article, Section or other subdivision.
(c) The terms defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular.
(d) All accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles.
(e) The terms defined elsewhere in this Agreement shall have the meanings therein prescribed for
them.
(f) Words of the masculine gender shall be deemed and construed to include correlative words of
the feminine and neuter gender.
(g) The headings or captions used in this Agreement are for convenience of reference only and
shall not define or limit or describe any of the provisions hereof or the scope or intent hereof.
(h) This Agreement shall be construed in accordance with the laws of the State.
Section 1.03. Attachments
The following are attachments and a part of this Agreement:
Description of the Project/Summary of Disbursements.
Borrower's Draw Certificate.
Promissory Note.
Opinion of Borrower's Counsel.
Certificate of Appropriation (if applicable).
Form of Security Instrument (if applicable).
ARTICLE II. REPRESENTATIONS COVENANTS AND WARRANTIES OF BORROWER
Section 2.01. Representations and Warranties.
Borrower represents and warrants for the benefit of the Board, the Trustee and the Bondholders as follows:
(a) Organization and Authority. The Borrower:
(1) is a political subdivision of the State of Montana; and
(2) has complied with all public bidding and other State and Federal laws applicable to
this Agreement and the acquisition or installation of the Project.
(b) Full Disclosure. There is no fact that the Borrower has not disclosed to the Board or its agents
in writing that materially adversely affects or (so far as the Borrower can now foresee), except for pending
or proposed legislation or regulations that are a matter of public information affecting the ability of the
Borrower to levy property taxes, collect fees and charges for services provided by the Borrower or
otherwise receive revenues, that will materially adversely affect the properties, activities, prospects or
condition (financial or otherwise) of the Borrower or the ability of the Borrower to make all repayments
and otherwise perform its obligations under this Agreement, the Note, and the Security Instrument.
(c) Pending Litigation. There are no proceedings pending, or to the knowledge of the Borrower
threatened against or affecting the Borrower in any court or before any governmental authority or
arbitration board or tribunal that, if adversely determined, would materially adversely affect the properties,
activities, prospects or condition (financial or otherwise) of the Borrower, or the ability of the Borrower to
make all Loan Repayments and otherwise perform its obligations under this Agreement, the Note, and the
Security Instrument, and that have not been disclosed in writing to the Board.
(d) Borrowing Legal and Authorized. The transaction provided for in this Agreement, the Note,
and the Security Instrument:
(1) are within the powers of the Borrower and have been duly authorized by all necessary
action on the part of the Borrower, including the adoption of a resolution substantially in the form
provided hereto with such modification as may be provided by the Board; and
(2) will not result in any breach of any of the terms, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Borrower pursuant to any indenture, loan agreement or other
instrument (other than this Agreement, the Note, and the Security Instrument) to which the
Borrower is a party or by which the Borrower may be bound, nor will such action result in any
violation of the provisions of any state laws, or ordinances or resolutions of the Borrower; and
(3) the amount of the Loan represented hereby has been added to the amount of all other
outstanding debt of the Borrower and together therewith does not result in the Borrower exceeding
its statutory debt limitation.
(e) No Violation. No event has occurred and no condition exists that, upon execution of this
Agreement, the Note, and the Security Instrument or receipt of the Loan, would constitute a Default or an
Event of Default. The Borrower is not in violation in any material respect, and has not received notice of
any claimed violation, of any term of any agreement, statute, ordinance, resolution, bylaw or other
instrument to which it is a party or by which it or its property may be bound.
(f) Use of Proceeds. The Borrower will apply the proceeds of the Loan solely to finance the
Project Costs described in the Description of the Project/Summary of Disbursements attached hereto. In
addition, the Borrower will pay the loan proceeds to a third party within five business days after the date
they are advanced (except for proceeds to reimburse the Borrower for previously paid expenditures, which
are deemed allocated on the date advanced). Investment of proceeds by the Borrowers within the five
business day period of disbursement to a third party (except for proceeds to reimburse the Borrower for
previously paid expenditures) should be in Non-AMT Obligations as that term is defined in the Board's tax
certificates.
(g) Completion of the Total Project; Payment of Total Project Costs. The Borrower shall proceed
diligently to complete the Total Project and to obtain the necessary funds to pay the Total Project Costs
thereof. The Borrower shall pay any amount required for the acquisition, construction and equipping of the
Total Project in excess of the Loan Amount as set forth on the cover hereof.
Section 2.02. Particular Covenants of Borrower.
(a) Compliance with Statutory Requirements, Competitive Bidding Montana Labor Laws
Environmental Review, and Other Legal Requirements. The Borrower has complied with all statutory
requirements, including competitive bidding and labor requirements and environmental review, applicable
to the acquisition and construction of the Project.
(b) Maintenance and Use of Project. The Borrower shall maintain the Project in good condition,
make all necessary renewals, replacements, additions, betterments and improvements thereto and maintain
insurance with respect to the Project, its other properties and its operations in such amounts and against
such risks as are customary for governmental entities such as the Borrower.
(c) Financial Reports and Audits. The Borrower shall comply with the provisions of Title 2,
Chapter 7, Part 5 Montana Code Annotated and shall file with the Board financial reports and audits when
such reports and audits are required to be filed by the Department of Commerce.
(d) Security Interest. The Borrower shall grant the Board a first security interest in the Project
being financed by the Loan to the extent allowed by law, by executing and delivering the Security
Instrument.
(e) Liens. The Borrower shall not create, incur or suffer to exist any lien, charge or encumbrance
on the property constituting the Project prior to the security interest granted hereunder other than (i) any
security interest or lien pursuant to a loan agreement, mortgage, deed of trust, indenture or similar financing
agreement of the Borrower in force and effect as of the date of this Agreement which creates a security
interest or lien in after -acquired property of the Borrower and which is approved in writing by the Board,
(ii), any security interest, mortgage or deed of trust permitted in writing by the Trustee, or (iii) any security
interest or lien imposed or arising by statute or operation of law.
(f) Expenses. The Borrower will, at the request of the Board, pay all expenses relating to the
Loan, the Note, and the Security Instrument and this Agreement, including but not limited to:
(1) The Borrower will cause all financing statements necessary to be filed in connection
with the security interest granted in the Security Instrument, if any is required hereunder, to be
executed and filed, at Borrower's expense.
ARTICLE III. LOAN TO BORROWER.
Subject to the terms and conditions of this Agreement, the Board hereby agrees to loan and
advance to the Borrower, and the Borrower agrees to borrow and accept from the Board, the Loan in the principal
amount not to exceed $400,000.00.
ARTICLE IV. LOAN PROVISIONS.
Section 4.01. Commencement of Loan Agreement
This Agreement shall commence on the date hereof unless otherwise provided in this Agreement.
Section 4.02. Termination of Agreement.
This Agreement will terminate upon payment in frill of all amounts due under this Agreement and upon the
full and complete performance and payment of all of the Borrower's other obligations hereunder. Until such
termination, all terms, conditions, and provisions of this Agreement shall remain in full force and effect.
Section 4.03. Term of Loan Agreement.
This Agreement shall be valid for the entire loan amount approved for one year from the Term Sheet
Issuance Date. Beginning one year after the Term Sheet Issuance Date, the Board may refuse to snake a loan
advance if the Board determines that there has been a material adverse change in the circumstances of the
Borrower.
Section 4.04. Loan Closing Submissions.
Concurrently with the execution and delivery of this Agreement, the Borrower is providing to the Board
and the Trustee, the following documents (except that the Board may waive any of such documents):
(a) A certified resolution of the Borrower in form and substance substantially identical to that
provided hereto; provided, however, that the Board may permit variances in such certified resolution from
the form or substance of such resolution if, in the good faith judgment of the Board, such variance is not to
the material detriment of the interests of the Program, the Bondholders and such certified resolutions are
acceptable to the Trustee;
(b) An opinion of the Borrower's counsel in form and substance substantially identical to the
Attorney's Opinion hereto; provided, however, that the Board may permit variances in such opinion from
the form or substance of such Attorney's Opinion if, in the good faith judgment of the Board, such variance
is not to the material detriment of the interests of the Program, the Bondholders and such opinion is
acceptable to the Trustee;
(c) The executed Security Instrument, attached hereto, required by the Board, including evidence
of filing of a financing statement, if any, in every office in which it is required to be filed in order to perfect
the security interest of the Board in the personal property pledged pursuant to the Security Instrument;
(d) A bill, or bills of sale, construction contract or contracts, invoice or invoices, purchase order or
purchase orders or other evidence satisfactory to the Board that the Project has been purchased, ordered,
constructed or installed by the Borrower or that any construction has been substantially completed and that
payment therefor is due and owing or, if the Borrower is to be reimbursed, that payment has been made;
and for any debt being refinanced, the canceled note or other financing document or other evidence
satisfactory to the Board of such refinancing;
(e) Such other closing documents and certificates as the Board may reasonably request.
Section 4.05. Initial and Subsequent Draws of Loan.
For the initial draw of the Loan, the Borrower shall deliver to the Board an executed copy of the
Agreement, complete with all attachments as listed in Section 4.04 including the Note and the Agreement
Resolution and other documents the Board requires.
For subsequent draws, if applicable, the Borrower shall deliver to the Board, an executed copy of a
Disbursement Request and Security Instrument, if required, and any other documents the Board requires.
8
ARTICLE V. LOAN REPAYMENTS AND NOTE.
Section 5.01. Payment of Loan Repay
(a) The Loan Repayment Dates shall be on February 15 and August 15 of each year with the first
Loan Repayment Date determined as follows:
First Loan
Payment
Date of Draw
Repayment Date
Consisting of:
February 15 through April 17
August 15
Principal and Interest
April 18 through June 16
August 15
Interest only
June 17 through August 14
February 15
Principal and interest from
date of draw
August 15 through October 18
February 15
Principal and Interest
October 19 through December 17
February 15
Interest only
December 18 through February 14
August 15
Principal and Interest from
date of draw
(b) Borrower hereby agrees to make Loan Repayments to the Trustee on each Loan Repayment
Date to be calculated by the Trustee and consisting of the sum of the following items:
(i) Principal in an amount based upon the initial Amortization Schedule, the Amortization
Schedule being initially determined utilizing the Initial Interest Rate. Each advance of the principal
of the Loan as shown on the Amortization Schedule shall be repaid in semiannual installments on
each Loan Repayment Date commencing on the first Loan Repayment Date following the date
thereof and ending on the final maturity date set forth on the Amortization Schedule. Principal
payments will not be adjusted but the interest payment will be adjusted as provided in Section 5.01
hereof.
(ii) Interest for each Adjustment Period at the Loan Rate.
(c) The Loan Rate shall equal the interest rate on the Board's bonds, as determined pursuant to
Section 3.03 of the Indenture, plus up to 1 1/2% per annum as is necessary to pay the Borrower's share of
Program Expenses as determined by the Board. The interest rate on the Bonds shall not exceed 15% per
annum.
(d) Within thirty days of the Adjustment Date the Trustee shall calculate the new interest
component of the Loan Repayments and shall send a revised Amortization Schedule to the Borrower
showing the amount of the Borrower's semiannual Loan Repayments.
(e) Loan Repayments may be made by check, wire transfer, or Automatic Clearing House (ACH)
of funds to the Trustee.
Section 5.02. Delinquent Loan Payments.
From and after any Loan Repayment Date, until repaid, the Loan shall bear interest at a rate equal to two
percent on the yield (coupon equivalent) as of the Loan Repayment Date, on United States of America Treasury
Bills of a duration as close as possible to the term over which the Loan Repayment is delinquent.
Section 5.03. The Note.
On the date of this Agreement, the Borrower shall execute the attached Note. The obligations of the
Borrower under the Note shall be deemed to be amounts payable under Section 5.01. Each payment made to the
Trustee pursuant to the Note shall be deemed to be a credit against the corresponding obligation of the Borrower
under Section 5.01 and any such payment made to the Trustee shall fulfill the Borrower's obligation to pay such
amount hereunder and under the Note.
ARTICLE VI. TERM.
The term of the Loan will be a maximum of five (5) years and the specific term for each loan draw will be
set forth in the Borrower's Draw Certificate.
ARTICLE VII. OBLIGATIONS OF BORROWER UNCONDITIONAL
Section 7.01. Obligations of Borrower.
The obligations of the Borrower to make the payments required hereunder shall be absolute and
unconditional without any defense or right of set off, counterclaim or recoupment by reason of any default by the
Board under the Loan Agreement or under any other indebtedness or liability at any time owing to the Borrower by
the Board or for any other reason.
ARTICLE VIII. FINANCIAL COVENANTS (GENERAL FUND)
Section 8.01. Representation Regarding the Property Tax Limitation Act.
The Borrower recognizes and acknowledges that the amount of taxes it may levy is limited by the state
pursuant to Section 15-10-420, as amended (the Property Tax Limitation Act). The Borrower is familiar with the
Property Tax Limitation Act and acknowledges that the Loan Repayments to be made under the Agreement and
Note are not exceptions to the provisions of the Property Tax Limitation Act. The Borrower represents and
covenants that such Loan Repayments can and will be made from revenues available to the Borrower,
notwithstanding the provisions of the Property Tax Limitation Act.
Section 8.02. Levy and Appropriate Funds to Repay Loan.
The Borrower agrees that in order to meet its obligation to make the Loan Repayments and all other
payments hereunder that it will budget for as authorized and appropriate from taxes or any other available sources
in each fiscal year during the term of this Agreement an amount sufficient to pay the principal of and interest
hereon within the limitations of the Property Tax Limitation Act and will reduce other expenditures if necessary to
make the payments hereunder when due.
Section 8.03. Reports and Opinion; Inspections.
(a) The Borrower shall deliver to the Board by no later than August 15 of each year during the
term of this Agreement, a certificate in substantially the form attached hereto that the Governing Body of
the Borrower has budgeted and appropriated for the then current Fiscal Year an amount sufficient to make
the Loan Repayments due in that Fiscal Year, as required in Article VIII hereof.
(b) The Borrower agrees to permit the Board and the Trustee to examine, visit and inspect, at any
reasonable time, the property constituting the Project, and the Borrower's facilities, and any accounts,
books and records, including its receipts, disbursements, contracts, investments and any other matters
relating thereto and to its financial standing, and to supply such reports and information as the Board or the
Trustee may reasonably require.
ARTICLE IX. DISCLAIMER OF WARRANTIES.
THE BOARD AND ITS AGENTS MAKE NO WARRANTY OR REPRESENTATION, EITHER
EXPRESSED OR IMPLIED, AS TO THE VALUE, DESIGN, CONDITION, MERCHANTABILITY OR
H
FITNESS FOR ANY OR A PARTICULAR PURPOSE OR FITNESS FOR USE OF THE PROJECT OR ANY
PORTION THEREOF OR ANY OTHER WARRANTY WITH RESPECT THERETO. In no event shall the
Board or the Trustee or their respective agents be liable for any incidental, indirect, special or consequential
damages in connection with or arising out of this Agreement or the Project or the existence, furnishing, functioning
or Borrower's use of the Project or any item or products or services provided for in this Agreement.
ARTICLE X. OPTION TO PREPAY LOAN.
The Borrower may prepay the Loan in whole or in part upon giving 30 days prior written notice to
the Board.
If the Loan is prepaid in part, the principal amount of the Loan shall be reduced by the portion of
the prepayment representing principal and the Loan shall be reamortized by ratably reducing the principal portion
of each remaining Loan Repayment.
ARTICLE XI. ASSIGNMENT.
Section 11.01. Assignment by Board or Trustee.
(a) The Borrower expressly acknowledges that all right, title and interest of the Board in and to
this Agreement (except for the rights of the Board to indemnification pursuant to Section 13.08 hereof) the
Note, and the Security Instrument have been assigned to the Trustee, as security for the Bonds, under and
as provided in the Indenture, and that if any Event of Default shall occur, the Trustee shall be entitled to act
hereunder in the place and stead of the Board. In addition, the Borrower acknowledges that the Board has
appointed the Trustee as servicer entitled to act hereunder in the place and stead of the Board. This
Agreement, the Note, and the Security Instrument, including (without limitation) the right to receive
payments required to be made by the Borrower hereunder and to compel or otherwise enforce performance
by the Borrower of its other obligations hereunder, may be further assigned and reassigned in whole or in
part to one or more assignees or subassignees by the Trustee at any time subsequent to their execution
without the necessity of obtaining the consent of the Borrower. Forthwith upon any such assignment the
Trustee shall notify the Borrower thereof.
(b) The Borrower acknowledges that payment of the Bonds does not constitute payment of the
amounts due under this Agreement.
Section 11.02. Assignment by Borrower.
This Agreement may not be assigned or encumbered by the Borrower for any reason without the express
written consent of the Trustee and the Board.
ARTICLE XII. EVENTS OF DEFAULT AND REMED
Section 12.01. Events of Default Defined.
If any of the following events occur, it is hereby defined as and declared to be and to constitute an "Event
of Default":
(a) Failure by the Borrower to pay any Loan Repayment required to be paid hereunder at the time
specified herein and the continuation of such failure for a period of three (3) days after telephonic or e-mail
notice by the Trustee that such payment has not been received;
(b) Failure by the Borrower to observe and perform any covenant, condition or agreement on its
part to be observed or performed under this Agreement, other than as referred to in Section 12.01(a) for a
period of thirty (30) days after written notice, specifying such failure and requesting that it be remedied, is
II
given to the Borrower by the Trustee, unless the Trustee shall agree in writing to an extension of such time
prior to its expiration; provided, however, if the failure stated in the notice cannot be corrected within the
applicable period, the Trustee will not unreasonably withhold their consent to an extension of such time if
corrective action is instituted by the Borrower within the applicable period and diligently pursued until the
Default is corrected;
(c) Any warranty, representation or other statement by or on behalf of the Borrower contained in
this Agreement or in any instrument furnished in compliance with or in reference to this Agreement or in
connection with the Loan, is false or misleading in any material respect;
(d) The Borrower files a petition in voluntary bankruptcy under the United States Bankruptcy
Code or seeks relief under any provision of any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect,
or consents to the filing of any petition against it under such law;
(e) The Borrower is generally not paying its debts as such debts become due, or becomes insolvent
or bankrupt or makes an assignment for the benefit of creditors, or a custodian (including without limitation
a receiver, liquidator or trustee) of the Borrower or any of its property is appointed by court order or takes
possession thereof and such order remains in effect or such possession continues for more than 30 days;
(f) A default occurs under the Security Instrument, if any.
Section 12.02. Notice of Default.
The Borrower agrees to give the Trustee and the Board prompt written notice if any petition referred to in
Section 12.01(d) is filed by the Borrower or of the occurrence of any other event or condition which constitutes a
Default or an Event of Default immediately upon becoming aware of the existence thereof.
Section 12.03. Remedies on Default.
If an Event of Default referred to in Section 12.01(d) shall have occurred, the Trustee shall declare the
Loan and all other amounts due hereunder to be immediately due and payable, and upon notice to the Borrower the
same shall become due and payable without further notice or demand. Whenever any Event of Default referred to
in Section 12.01 hereof shall have happened and be continuing, the Trustee or the Board shall have the right to take
any action permitted or required pursuant to the Indenture and shall take one or any combination of the following
remedial steps:
(a) Declare the Loan and all other amounts due hereunder to be immediately due and payable, and
upon notice to the Borrower the same shall become immediately due and payable by Borrower without
further notice or demand; and
(b) Take whatever other action at law or in equity may appear necessary or desirable to collect the
amounts then due and thereafter to become due hereunder or to enforce any other of its or the Board's rights
hereunder, including without limitation, the appointment of a receiver as provided in the Act.
Section 12.04. Attorneys Fees and Other Expenses.
The Borrower shall on demand pay to the Board or the Trustee the reasonable fees and expenses of
attorneys and other reasonable expenses incurred by either of them, or by any agency of the State selected by the
Board to act on its behalf or by the Attorney General, in the collection of Loan Repayments or any other sum due or
the enforcement of performance of any other obligations of Borrower upon an Event of Default.
12
Section 12.05. Application of Moneys.
Any moneys collected by the Board or the Trustee pursuant to Section 12.03 hereof shall be applied (a)
first, to pay any attorney's fees or other fees and expenses owed by Borrower pursuant to Section 12.04 hereof; (b)
second, to pay interest due on the Loan; (c) third, to pay principal due on the Loan; (d) fourth, to pay any other
amounts due hereunder; and (e) fifth, to pay interest and principal on the Loan and other amounts payable
hereunder but which are not due, as they become due (in the same order, as to amounts which come due
simultaneously, as in (a) through (d) in this Section 12.05).
Section 12.06. No Remedy Exclusive, Waiver and Notice.
No remedy herein conferred upon or reserved to the Board or the Trustee is intended to be exclusive and
every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement
or now or hereafter existing at law or in equity. No delay or omission to exercise any right, remedy or power
accruing upon any Default or Event of Default shall impair any such right, remedy or power or shall be construed to
be a waiver thereof, but any such right, remedy or power may be exercised from time to time and as often as may
be deemed expedient. In order to entitle the Board or the Trustee to exercise any remedy reserved to it in this
Article XII, it shall not be necessary to give any notice, other than such notice as may be required in this Article
XII.
ARTICLE XIII. MISCELLANEOUS.
Section 13.01. Notices.
All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed
given when hand delivered or five days after mailed by registered or certified mail, postage prepaid, to the
Borrower at the address specified on the cover hereof and to the other parties at the following addresses:
(1) Board: Montana Board of Investments
Attn: Bond Program Office
P.O. Box 200126
Helena, Montana 59620-0126
(2) Trustee: U. S. Bank National Association
Corporate Trust Services PD-WA-T7CT
1420 Fifth Avenue, 7t" Floor
Seattle, WA 98101
Any of the parties may, by notice in writing given to the others, designate any further or different addresses to
which subsequent notices, certifies or other communications shall be sent.
Section 13.02. Binding Effect.
This Agreement shall inure to the benefit of and shall be binding upon the Board, the Borrower and their
respective successors and assigns.
Section 13.03. Severability.
In the event any provision of this Agreement shall be held invalid or unenforceable by any court of
competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof.
13
Section 13.04. Amendments, Changes and Modifications.
This Agreement may not be amended by the Board and the Borrower unless such amendment shall have
been consented to in writing by the Trustee.
Section 13.05. Execution in Counterparts.
This Agreement may be simultaneously executed in several counterparts, each of which shall be an original
and all of which shall constitute but one and the same instrument.
Section 13.06. Applicable Act.
This Agreement shall be governed by and construed in accordance with the laws of the State.
Section 13.07. Consents and Approvals.
Whenever the written consent or approval of the Board shall be required under the provisions of this
Agreement, such consent or approval may be given by the Executive Director of the Board, unless otherwise
provided by law or by rules, regulations or resolutions of the Board or unless delegated to the Trustee.
Section 13.08. Indemnity.
The Borrower agrees to indemnify and hold harmless the Board and the Trustee, their respective officers,
employees and agents, from and against any and all losses, claims, damages, liability or expenses, of every
conceivable kind, character and nature whatsoever, including, but not limited to, losses, claims, damages, liabilities
or expenses (including reasonable fees for attorneys, accountants, consultants and other experts) (collectively
referred to hereinafter in this Section 13.08 as "Damages") as follows:
(a) For all Damages arising out of, resulting from or in any way connected with the Loan or this
Agreement, without limitation; and
(b) For all Damages arising out of, resulting from or in any way connected with the acquisition,
construction, installation and operation of the Project.
Notwithstanding the foregoing, the Borrower shall have no liability for damages solely arising out of, resulting
from or connected to the Loan or Agreement of any other Borrower.
Section 13.09. Waiver of Personal Liability.
No member, officer, agent or employee of the Board shall be individually or personally liable for the
making of the Loan or be subject to any personal liability or accountability by reason hereof, but nothing herein
contained shall relieve any such member, officer, agent or employee from the performance of any official duty
provided by law or by this Agreement.
Section 13.10. Captions.
The captions or headings in this Agreement are for convenience only and in no way define, limit or
describe the scope or intent of any provisions or sections of this Agreement.
14
IN WITNESS WHEREOF, the Board has executed this Agreement by its duly authorized officers
and the Borrower has caused this Agreement to be executed in its name by its duly authorized officers. All of the
above occurred as of the date first above written.
WITNESS OR ATTEST:
By Theresa White
Its City Clerk
BOARD OF INVESTMENTS OF THE
STATE OF MONTANA
By J ie Flynn
Its ITond Program Officer
CITY OF KALISPELL
By Mark Johnson
Its Mayor
15
DESCRIPTION OF THE PROJECT/SUMMARY OF DISBURSEMENTS
FOR
CITY OF KALISPELL
Allocated
Amount
of Loan
Description of Project
Purchase two used dump trucks/one garbage truck $400,000.00
Amount
Amount
Amount
Remaining
Draw
Description
Allocated
Date
of
Remaining
Reserved
#
of Item
for Item
of Draw
Draw
for Item
Amount
Reserved Amount
$400,000.00
2539-01
# 1 above
$400,000.00
2/28/2014
46,500.00
353,500.00
353,500.00
DESCRIPTION OF PROJECT/SUMMARY OF DISBURSEMENTS - 1
BORROWER'S DRAW CERTIFICATE NO. 1
FOR DISBURSEMENT OF FUNDS
UNDER THE LOAN AGREEMENT
The undersigned, Authorized Representative of the City of Kalispell (the "Borrower") under
the Loan Agreement, dated as of February 28, 2014 (the "Loan Agreement"), by and between the Board of
Investments of the state of Montana (the "Board"), certify pursuant to Section 4.04, as follows:
l . We have read Section 4.05 of the Loan Agreement and the subsections of Section 4.04
referred to therein and have reviewed appropriate records and documents of the Borrower relating to matters
covered by this Certificate. All capitalized terms used in this Certificate shall have the meanings given them in
the Loan Agreement unless otherwise defined herein;
2. All terms and conditions of the Loan Agreement to be complied with by the Borrower
as of the date hereof have been complied with and satisfied, and all documents described in Section 4 have been
delivered;
3. The item number, amount, and nature of each item of Project Costs, as shown on the
attached Borrower's Cash Advance Certificate, hereby requested to be reimbursed or paid to the Borrower (a)
has been paid or incurred, (b) is an eligible Project Cost, and (c) has not been previously reimbursed or paid by
the Program under the Loan Agreement;
4. To our knowledge after reasonable investigation, there has been no default by the
Borrower under the Loan Agreement, which has not been cured; and
5. All representations and warranties made by the Borrower in the Loan Agreement are
true and correct on and as of the date of this Borrower's Certificate with the same effect as if made on such
date.
You are hereby requested to advance pursuant to Section 4.05 of the Loan Agreement the
amount shown on the Borrower's Cash Advance Certificate and make payment to the entitled entity to receipt
thereof as shown on said Certificate.
WITNESS my hand this 28th day of February, 2014.
CITY OF KALISPELL
By Mark Johnson
Its Mayor
ATTEST:
By Theresa White
Its City Clerk
BORROWER'S DRAW CERTIFICATE - I
BORROWER'S CASH ADVANCE CERTIFICATE NO. 1
1. Closing Date for Loan: February 28, 2014
2. Cash Amount to be Advanced (wire): $46,500.00
3. The Term Over Which the Loan Advance is to be Amortized:
February 28, 2014 through February 15, 2019 (5 years)
4. Items to be Financed (serial number, model):
Serial and
Item Model Number Amount
2006 International 7400 dump truck 1HTWGAAT26J288954 $ 46,500.00
SPECIAL INSTRUCTIONS:
- wire fiends to: Glacier Bank
ABA # 292970825
For Cr To City of Kalispell
Acct. #10163583
BORROWER'S DRAW CERTIFICATE - 2
m
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Ind hem n. prml« i or, the rev,,'l _e sidu m,izt;iT.
lll^.mFlEF`
PURCHASE PIRICE AND OTHER SUMS DUE
..... . ....
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3. PORTION7RESATE APPUED TO PURCHASE
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TRIADE-W ANWOR OTHER CREDIT S
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any vitmcio ir,ad&ii in, arm! thal, u it is i+at romct and Ir lharl kha
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NOTICE ONLY TO BUYERS OF USED VEHICLES
Informatiorl You Sep pq thevonLiow form. [60jfet5 Giridoll "n" ?,-Jiscnflvdq
Ir,fcrff,a;m, wi ',fill vmd;w Ion v.,"wri "Jes arw varr.re,v 1W contract Ozal..
1 HAVE RECEIVED A COPY OF T HE FTC CARBUYFFISI G-LAOR
y
FINANCING DISCLOSURE
]ON: OPO` tliu 'Aof 'U". Mum: be a&mmelpd, iiutcl�i�sv M
.0 i- wzwzdole for Anai driq or 091imflod."ri, ihpinlager inti.Ml
s;p d4dosweW.If segs, agr:�3 to araq_� tilenDoh Sell,-r awl Pwmhasi �igil dWo��,we
9V SIGHING. N)RCHASP:R AFFPV."' 7 HAT WISN7 READ 'r HM D;3CLOSURE AND AGREES THERETI-)
rF al MING DISCLOSURE 'B", DO NOT, SIGH UNTIL ALL SLAVE HAVE SEEN FILLED IN. PURCHASER
ACKNW&EDGM rRATTHE TEWAS S171' FORTH RELOW I"Al AND !=E") ARE STATE CODE VANDATED
AND ARE NOT TO iE CONSTRUED AS CONIMACT UAL TERMS FEI WEENTHE. 8FLLER AND PURCEASER,
PURCHASER AGREFS TO ARRANGE FWANCING
"(A)" THE PURCHASER OF THE klOTOR, vEH!c._I_ DESCRIBED INt 'His CONFRACI-f
ACKNIOVVILM)GES THAT THE KILLER OF ;HE M.OTOFIVEK lCI _'E HAS MIADE NO PROMNSES.
,11ARRAW SELLER'S ABILITY TO OSTAUN FINANCINC
`HAT IF FINANCING IS WCESSARY IN ORDER FOR THE PURCHASER TO Of-IMPLEPETE -NE
PAY.PkIENT TENMs OF THIs CONTRACT All THE HNANPWIG ARHA,.NGEN4Dffi ARE I HE
WSPONSIMLI fY OF THE PURC: iASER,
SELLER AGREES TO SEEK AANGEMENTS FOR FINANCING
THE PUROHASER 'OF _HE MO-
R?rl VEL:, -,j - f�f_-�,(l . - T' A ;T HAS
,F�f3 IN T�IR C, N Hi ED 1,
EXECU i F.T) I H!_ COIN'[ R".c i IN RME,UIANCE UPON rHE 5ELLEJVS REPRESENTAPON F
3 F J. I E R ' is t N P ROV 1 u E f N A,`:C P " (7, Alt li W., � -, I,.! E N, TS f: 0 R -`HIE P U Q �;l 1 A S, E 0 r ri E P I Vr<
VE" THE PPWIARY I've. r.0 0�' THE PNANDMIS ARE AS FOLLCA',,S:
ilifTEEPES"i' Prz &ETt�41" H % A�i IE _E PER ANNIJIM, 7 i il'0 E 7,101 a, E Pq
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W"'K,"SER A "MUM7 f .t LO'tNAIC� liE Pi..-! t',,,,:. -Ftct' Gl�, N �"ic FOR
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ROP14 L.1i T s ir ADHERUj TC - 1. E q! 4 S A it C 'n ,
I-,! il P -1 `Hv TFIV� A�zi,-XtilAl:r"N's, v": -Hrl FF.-Rt"S -.Nl; C's,
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LLOWS
OTHER TERMS AGREED TONoNi7i . I
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A,ck.N,OwLFDGES TrAT HLr Stit". TILrj�l TERMS, G F -1 C F
10 PAY FHE '[,,LANCEL Dj;ll "I` T ")HTV P1010"rIZ "IN OR HE, V10 OA:,F- Is BALAI)G_ (il-L -S OF iHL ij.,u fl., E;6itt ZW "
HIS IS NO I A CIP PAN't'Al-_ IT,
PUPCHAS GRE S -MATNORETURNS, REFUNDS, OR EXOHANCIESARE PERMISSIBLE EXCEPT AS NOTE D,,e0vC.
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ruc aper.Com
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213`aka To End OfFrame (Can Add Frame)
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Please call ibr additional information Cr Maisurements
Loan #2539
PROMISSORY NOTE
FOR VALUE RECEIVED, the City of Kalispell, a political subdivision organized under the laws
of the state of Montana (the "Borrower"), hereby promises to pay to the order of the Board of Investments of the
State of Montana (the 'Board") the principal amount of FOUR HUNDRED THOUSAND AND 00/100 DOLLARS
($400,000.00) or such lesser amount as shall actually be advanced to the Borrower under the Loan Agreement
(hereinafter defined) as evidenced by the Amortization Schedule attached hereto and as annually revised by March
15 for every year the loan advance is outstanding, together with interest thereon in the amount calculated as
provided in the Loan Agreement, payable semiannually on February 15 and August 15 in the amounts and as
provided in the Loan Agreement and as set forth hereto.
The maturity date of this loan as evidenced by this Promissory Note is February 15, 2019 or sooner
at the option of the Borrower pursuant to the Loan Agreement.
This Promissory Note is issued pursuant to the Loan Agreement dated as of February 28, 2014,
between the Board and the Borrower (the "Loan Agreement"), and issued in consideration of the loan made
thereunder (the "Loan") and in evidence of the obligations of the Borrower set forth in Section 5 thereof. This
Promissory Note has been assigned to the Trustee under the Indentures of the Program. Payments hereunder shall
be made directly to the Trustee for the account of the Board pursuant to such assignment. Such assignment has
been made as security for the payment of the Board of Investments' INTERCAP bonds. All of the terms,
conditions and provisions of the Loan Agreement are, by this reference hereto, incorporated herein as a part of this
Promissory Note.
Interest on this Note is computed on a 365/365 simple interest basis; that is, by applying the ratio of
the interest rate over the number of days in a year, multiplied by the outstanding principal balance, multiplied by
the actual number of days the principal balance is outstanding. All interest payable under this Note is computed
using this method.
Pursuant to the Loan Agreement, advances shall be made to the Borrower under the Loan
Agreement from time to time upon the terms and conditions set forth in the Loan Agreement.
This Promissory Note is entitled to the benefits and is subject to the conditions of the Loan
Agreement. The obligations of the Borrower to make the payments required hereunder shall be absolute and
unconditional without any defense or right of setoff, counterclaim or recoupment by reason of any default by the
Board under the Loan Agreement or under any other indebtedness or liability at any time owing to the Borrower by
the Board or for any other reason.
This Promissory Note is subject to optional prepayment under the terms and conditions provided in
Article X of the Loan Agreement upon giving 30 days prior written notice to the Board.
If an "Event of Default" occurs under Section 12.01 of the Loan Agreement, the principal of this
Promissory Note may be declared due and payable in the manner and to the extent provided in Article XII of the
Loan Agreement.
IT IS HEREBY CERTIFIED, RECITED, COVENANTED AND AGREED that all acts,
conditions and things required by the Constitution and laws of the State of Montana to be done, to exist, to happen
and to be performed precedent to and in the issuance of this Note, in order to make it a valid and binding obligation
of the Borrower according to its terms, have been done, do exist, have happened and have been performed in
regular and due form, time and manner as so required; that the Borrower will, as authorized by and according to
applicable provisions and limitations of law annually levy sufficient tax receipts or collect sufficient revenues, as
PROMISSORY NOTE - I
the case may be, with other funds available therefor, to pay the principal and interest hereon when due; and that this
Note, together with all other indebtedness of the Borrower outstanding on the date of original issue hereof and on
the date of its actual issuance and delivery, does not exceed any constitutional or statutory limitation of
indebtedness of the Borrower.
IN WITNESS WHEREOF, the City of Kalispell has caused this Promissory Note to be duly
executed, attested and delivered, as of this 28th day of February, 2014.
CITY OF KALISPELL
By Mark Johnson
Its Mayor
(SEAL)
ATTEST:
By Theresa White
Its City Clerk
Board of Investments of the State of Montana hereby assigns the foregoing Loan Agreement and
Promissory Note to U. S. Bank National Association (formerly known as First Trust Company of Montana), as
Trustee.
BOARD OF INVESTMENTS OF THE
STATE OF MONTANA
By J i Flynn
Its B d Program Officer
PROMISSORY NOTE - 2
MONTANA BOARD OF INVESTMENTS
ANNUAL ADJUSTABLE RATE TENDER OPTION
MUNICIPAL
FINANCE CONSOLIDATION ACT
BONDS
(INTERCAP REVOLVING PROGRAM)
Municipality:
City of Kalispell Final Payment:
February 15, 2019
Total Commitment:
$400,000.00 Total # of Payments:
10
Total Draws to Date:
$0.00 Draw Number:
2539 1
This Draw Down:
$46,500.00 Date of this Draw:
February 28, 2014
Remaining Commitment:
$353,500.00 Date of Loan Agreement:
February 28, 2014
Project: Purchase two dump trucks/one garbage truck Series:
2000
Payment Interest
# Days
Interest Principal
O/S Loan
Total Amount
Due Rate
Due
Payment Payment
Balance
of Payment
**Beginning Balance**
46,500.00
*please see comments
08/15/14
168
4,564.80
41,935.20
02/15/15
184
4,567.43
37,367.76
08/15/15
181
4,593.53
32,774.23
02/15/16
184
4,613.61
28,160.62
08/15/16
182
4,638.80
23,521.82
02/15/17
184
4,660.58
18,861.24
08/15/17
181
4,685.30
14,175.94
02/15/18
184
4,707.37
9,468.57
08/15/18
181
4,731.88
4,736.70
02/15/19
184
4,736.70
0.00
46,500.00
COMMENTS:
Interest payments are not shown on this statement as the interest rate will change February 16.
After the interest rate changes, a new amortization schedule will be sent to reflect the actual payments.
Principal payments have been calculated based on an assumed interest rate of 1.00%. These will remain constant.
IMPORTANT: If payment is made by check, please send the enclosed amortization schedule(s) with
check for proper credit. Please make sure that SpA Lockbox CM9695 is on both the check and envelope.
Please mail a copy of the amortization
schedule with a check made payable to:
U.S. Bank Trust-SpA Lockbox CM9695
ATTN: Operations Center
1200 Energy Park Drive
St. Paul, MN 55108
OR Please wire funds to:
U.S. Bank N.A. (Minneapolis)
ABA 091000022
FFC: U.S. Bank Trust N.A.
Account # 180121167365
Wire Clearing Account # 47300023
ATTN: 503 6425 6/996103 DKO
INTERCAP: City of Kalispell
City ®f Kalispell
Post Office Box 1997 - Kalispell, Montana 59903
Telephone: (406) 758-7701 Fax: (406) 758-7758
February 28, 2014
Board of Investments
of the State of Montana
2401 Colonial Drive, 3`d Floor
P. O. Box 200126
Helena, MT 59620-0126
U.S. Bank Trust National Association MT
Corporate Trust Department WWH1022
1420 Fifth Avenue, 7`" Floor
Seattle, WA 98101
Ladies and Gentlemen:
I have served as counsel to the City of Kalispell (the "Borrower") in connection with its
participation in the INTERCAP Program (the "Program") of the Board of Investments of the State of Montana (the
"Board"). Terms used herein which are defined in the Loan Agreement, dated as of February 28, 2014 (the "Loan
Agreement") between the Borrower and the Board shall have the meanings specified therein. The resolution of the
Borrower authorizing its participation in the Program and the issuance of its Loan Agreement relating thereto is
herein referred to as the Loan Agreement Resolution.
I have examined, among other things:
i) the Borrower Act;
ii) the Loan Agreement dated as of February 28, 2014 and executed by the Borrower;
iii) the Promissory Note (the "Note") dated as of February 28, 2014 and executed by
the Borrower;
iv) Resolution No. 5662 of the Borrower, dated February 18, 2014 (the "Loan
Agreement Resolution");
v) the Security Agreement (the "Security Agreement") from the Borrower to the
Board, dated as of February 28, 2014;
vi) upon receipt of Title, the Notice of Lien with Title from the Borrower, as debtor, to
the Board, as secured party, will be mailed for filing to the office of the Flathead County Treasurer
Motor Vehicle Office;
vii) the proceedings of the Borrower with respect to the due execution and delivery by
the Borrower of the Loan Agreement, Note and Security Agreement (the Program Documents), and
such certificates and other documents relating to the Borrower, the Program Documents and the
Loan Agreement Resolution of the Borrower, and have made such other examination of applicable
Montana law and a review of the Borrower's actions with respect to applicable ordinances and
Board of Investments of the State of Montana
U.S. Bank Trust National Association MT
February 28, 2014
Page 2
resolutions as we have deemed necessary in giving this opinion.
Based upon the foregoing, we are of the opinion that:
(a) The Borrower is a political subdivision duly organized and validly existing
under the laws and Constitution of the State of Montana with full legal right, power and
authority to enter into, execute and perform its obligations under the Program Documents
and to carry out and effectuate the transactions contemplated thereunder.
(b) The execution of the Loan Agreement and Promissory Note have been
duly authorized and are valid, binding and enforceable against the Borrower in accordance
with its terms.
(c) The Loan Agreement Resolution of the Borrower has been duly adopted
and is valid, binding and enforceable against the Borrower in accordance with its terms.
(d) The Borrower has taken all action required to be taken by it to authorize
the execution and delivery of and the performance of the obligations contained in the
Program Documents; and such authorization is in full force and effect on the date hereof.
(e) The Borrower has complied with all applicable competitive bidding
requirements for the purchase, acquisition, and construction of the Project.
(f) No consent, approval, authorization, order, filing, registration,
qualification, election or referendum, of or by any person, organization, court or
governmental agency or public body whatsoever is required to be obtained by the
Borrower in connection with the execution, delivery and performance of the Program
Documents or the consummation of the other transactions effected or contemplated
thereby.
(g) The execution, delivery and performance of the Program Documents, and
compliance with the provisions thereof will not conflict with or constitute a breach of, a
violation of, or default under, the Constitution of the State of Montana, or any existing law,
charter, judgment, ordinance, administrative regulation, decree, order or resolution of or
relating to the Borrower and do not conflict with or result in a violation or breach of, or
constitute a default under, any agreement, indenture, mortgage, lease or other instrument,
to which the Borrower is a party or by which it is bound or to which it is subject.
(h) The Program Documents executed by the Borrower, when delivered to the
Board, will have been duly authorized and executed and will constitute validly issued and
legally binding obligations of the Borrower according to their terms.
W No other lien has been filed on this vehicle.
0) The Board has a direct and valid first security interest in the Project. The
Notice of Lien has been (or will be) duly filed for record in such manner at such places as
required by law, in order to give constructive notice of and to establish, preserve and
protect the lien and security interest of the Board on all properties of every kind described
in the Security Agreement. No other recording, filing, rerecording or refiling is required.
Board of Investments of the State of Montana
U.S. Bank Trust National Association MT
February 28, 2014
Page 3
It is understood that the enforceability of the Program Documents may be limited by applicable
bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting the enforcement or creditors'
rights.
Sincerely,
r
Charled A. H "
City Atey
City of Kalispell
SECURITY AGREEMENT
This SECURITY AGREEMENT (the "Security Agreement" or "Agreement") is made as of
February 28, 2014 by and between the City of Kalispell (the "Borrower"), an Eligible Government Unit, duly
organized and validly existing under the laws and Constitution of the state of Montana, and the Board of
Investments of the State of Montana (the "Board"). The Borrower enters this agreement in consideration of the
loan to it by the Board and for the purpose of securing the Borrower's performance of each and every covenant
contained in this agreement and in that certain Loan Agreement dated as of February 28, 2014 by and between the
Board and the Borrower (the "Loan Agreement"). All right, title and interest of the Board in this Agreement and
the Collateral subject hereto shall be assigned to U. S. Bank National Association (formerly known as First Trust
Company of Montana National Association and as the First Trust Company of Montana) (the "Trustee"), as
Trustee, under the Indenture of Trust dated March 1, 1991, a First Supplemental Indenture of Trust dated as of
March 1, 1992, and a Second Supplemental Indenture of Trust dated as of June 1, 1994 (together the "Indenture")
between the Board and the Trustee.
Section 1. Grant.
The Borrower hereby grants the Board a security interest in all goods, equipment, machinery,
inventory, furniture, furnishings, fixtures, and all other tangible personal property of the Borrower described in this
Security Agreement, whether currently owned or hereafter acquired, together with all accessories, attachments, and
additions thereto and replacements therefor and all rents, income and proceeds therefrom (all such property being
herein referred to collectively as the "Collateral").
Section 2. Representations.
Borrower represents and warrants that the Collateral, or any part thereof, is not subject to, and shall
be kept free from, any security interest, lien or encumbrance other than permitted encumbrances as hereinafter
defined in Section 8 hereof ("Permitted Encumbrances").
Section 3. Covenants of the Borrower.
For the purpose of protecting and preserving the security of this Security Agreement, the Borrower
promises:
(a) (i) to care for and keep all of the Collateral in good condition and repair; (ii) not to remove,
demolish or substantially alter (except such alterations as may be required by laws, ordinances or
regulations) the Collateral; provided, however, that the Borrower may make such proper replacements,
repairs, removals and alterations as it shall in good faith determine to be necessary or advisable to maintain
or enhance the efficiency and value of the security created hereby; (iii) to comply with all laws, ordinances,
regulations, conditions and restrictions now or hereafter affecting the Collateral or any part thereof; (iv) not
to commit or permit any waste and not to permit any deterioration of the Collateral; and (v) not to commit,
suffer or permit any act to be done in, upon, or with the Collateral in violation of any law or ordinance if
such act might have consequences that would materially and adversely affect the financial condition, assets,
properties or operation of the Borrower;
(b) to provide and maintain hazard insurance on the Collateral for its full replacement value; to
obtain such insurance from a company of the Borrower's choice, subject to the Trustee's and the Board's
approval; to name the Trustee and the Board as additional insured parties in such policies; to deliver
duplicate originals or certified copies of the policies of said insurance to the Trustee upon its request;
SECURITY AGREEMENT - I
(c) to appear in and defend any action or proceeding affecting or purporting to affect the
security of this Security Agreement, and additional or other security for any of the obligations secured hereby, or
the interest, rights, powers, or duties of the Trustee of the Board hereunder, it being agreed, however, that in the
case of an action or proceeding against the Trustee or the Board said Trustee or Board, at their option, may appear
in and defend any such action or proceeding and, in addition, it being agreed that the Trustee may commence any
action or proceeding deemed necessary by it to perfect, maintain or protect such interest, rights, powers or duties,
all in such manner and to such extent as it may see fit, and the Trustee is authorized to pay, purchase or
compromise on behalf of the Borrower any encumbrance or claim which in its judgment appears or purports to
affect the security hereof or to be superior hereto; to pay all costs and expenses, including costs of evidence of title
and attorney's fees in a reasonable sum, in any above described action or proceeding in which the Board or the
Trustee may appear;
(d) to pay immediately and without demand all reasonable and necessary sums that the Trustee
or the Board expend to enforce the terms of this agreement, including attorneys' fees, with interest from
date of expenditure at the rate of twelve percent (12%) per annum; and
(e) (i) to inform the Trustee and the Board in writing of the location of such Collateral and of
any changes in the Collateral's location, to execute and deliver to the Trustee and the Board such financing
statements and other documents in a form satisfactory to the Trustee and the Board, (ii) to do all acts that
may be reasonably requested in order to establish and maintain a perfected interest in the Collateral, and
(iii) to pay the costs of filing any notices or statements in any public office in which the Trustee deems
filing or recording to be necessary or desirable.
Section 4. Acceatance Not Waiver.
By accepting payment of any sum secured hereby after its due date, neither the Trustee nor the
Board shall be deemed to have waived its right either to require prompt payment when due of all other sums so
secured or to declare default as herein provided for failure so to pay.
Section 5. Amendment, Additional Security.
Without affecting the liability of any other person liable for the payment of any obligation herein
mentioned, and without affecting the lien or charge of this Security Agreement upon any property not then or
theretofore released as security for the Rill amount of all unpaid obligations, the Trustee may, upon written request
by the Board, and without notice to the Borrower, release any person other than the Borrower so liable, extend the
maturity or alter any of the terms of any such obligation, or grant other indulgences or releases or cause to be
released any portion or all of the Collateral, release any other or additional security for any obligation herein
mentioned, to make compositions or other arrangements with debtors in relation thereto; and if the Trustee at any
time holds any additional security for any obligations secured hereby, it may enforce the sale thereof or otherwise
realize upon the same at its option, either before or concurrently herewith or after a sale is made hereunder.
Section 6. Right of Entry for Inspection.
The Trustee and the Board and their employees and agents may inspect the Collateral at any
reasonable time or times, regardless of where such Collateral is located.
Section 7. Entry, Possession, Operation of Equipment and Other Remedies.
If the Borrower fails or refuses to make any payment or to do any act which this agreement
obligates it to make or do at the time and in the manner herein provided, then the Trustee and the Board, in their
sole discretion, without notice to or demand upon the Borrower and without releasing the Borrower from any
obligation hereof, are each authorized to do any of the following:
SECURITY AGREEMENT - 2
(a) make any such payment or do any such act in such manner and to such extent as they may
deem necessary to protect the security hereof; or
(b) pay, contest or compromise any claim, debt, lien, charge or encumbrance which in the
judgment of the Trustee or Board may affect or appear to affect the security of this Security Agreement, the
interest of the Board or the rights, powers or duties of the Trustee or the Board hereunder.
In addition to any right or remedies it may have hereunder or otherwise, the Trustee or the Board
shall have all the rights and remedies of a secured party under the Uniform Commercial Code of Montana,
including without limitation, the right to dispose of such Collateral at public or private sale.
The Trustee and the Board are not obligated to make any of the payments or to do any of the acts
mentioned above, but, upon election so to do, employment of an attorney is authorized and payment of such
attorney's fees and of all other necessary expenditures is hereby secured under this Security Agreement.
Section 8. Permitted Encumbrances.
There are no Permitted Encumbrances allowed under this Agreement.
Section 9. Duration of Securitv Interest.
The security interest herein granted shall continue in full force and effect until all indebtedness
hereby secured shall have been fully paid and satisfied and all commitments of the Board to extend credit to or for
the account of the Borrower have expired.
Section 10. Additional Security.
The Trustee shall be entitled to enforce payment and performance of any indebtedness or
obligations secured hereby and to exercise all rights and powers under this Security Agreement or under any other
agreement or any laws now or hereafter in force, notwithstanding that some or all of the indebtedness and
obligations secured hereby are now or shall hereafter be otherwise secured, whether by mortgage, deed of trust,
security agreement, lien, or otherwise. The obligation to repay the indebtedness secured hereby remains without
reference to condition, disposition or location of the Collateral. Neither the Trustee's acceptance of this Security
Agreement nor its enforcement, whether by court action or pursuant to the power of sale or other powers herein
contained, shall prejudice or in any manner affect the Trustee's right to realize upon or enforce any other security
now or hereafter held by the Trustee or the Board.
Section 11. Successors and Assigns.
This Security Agreement applies to, inures to the benefit of, and binds all parties hereto, the Board
and the successors and assigns of any of them.
Section 12. Severability.
If any provision hereof should be held unenforceable or void, in whole or in part, then such
unenforceable or void provision or part shall be deemed separable from the remaining provisions and shall in no
way affect the validity of the remainder of this Security Agreement.
Section 13. Notice of Actions.
The Trustee shall be under no obligation to notify any party hereto of any action or proceeding of
any kind in which the Borrower, the Board or the Trustee shall be a party, unless brought by the Trustee, or of any
pending sale under any other deed of trust or security agreement.
SECURITY AGREEMENT - 3
Section 14. Charge for Provision of Statement.
For any statement regarding the obligations secured hereby, a charge, which the Borrower agrees to
pay, may be made in an amount not exceeding the maximum allowed by law at the time any such statement is
requested.
Section 15. Waiver of Statute of Limitations.
The right to plead any and all statutes of limitations as a defense to any demand secured by this
Security Agreement is hereby waived.
Section 16. Substitution of Trustee.
The Board may substitute a successor Trustee from time to time by recording at the places required
by law an instrument stating the election by the Board to make such substitution and identifying this Security
Agreement.
Section 17. Choice of Law.
The laws of the state of Montana shall govern the construction and interpretation of this agreement.
Section 18. Notice.
Notices to the Borrower may be mailed to it at: ,
Attention: , or at such other address as the Borrower may
file in writing with the Trustee. Notices to the Trustee hereunder may be mailed to it at: U. S. Bank National
Association, Corporate Trust Services PD-WA-T7CT, 1420 Fifth Avenue, 7"' Floor, Seattle, WA 98101, or at such
other address as the Trustee may file in writing with the Borrower. Notices to the Board may be mailed to the
Board of Investments of the State of Montana, P.O. Box 200126, Helena, Montana 59620-0126
IN WITNESS WHEREOF, the Borrower has caused this Security Agreement to be duly executed
as of this 28th day of February, 2014.
CITY OF KALISPELL
By Mark Johnson
Its Mayor
(SEAL)
ATTEST:
By Theresa White
Its City Clerk
SECURITY AGREEMENT - 4
For value received, the undersigned hereby grants, assigns and transfers to U. S. Bank National
Association (formerly known as First Trust Company of Montana National Association and as First Trust Company
of Montana), as trustee under the Indenture of Trust dated March 1, 1991, between the undersigned and said trustee
for the holders of the Board of Investments of the state of Montana Annual Adjustable Rate Tender Option
Municipal Finance Consolidation Act Bonds (INTERCAP Revolving Program), Series 1991, all of its right, title
and interest in this Security Agreement and the Collateral subject hereto.
Dated: February 28, 2014
BOARD OF INVESTMENTS OF THE
STATE OF MONTANA
By Jule 1 nn
Its Bond Program Officer
SECURITY AGREEMENT - 5
DESCRIPTION OF COLLATERAL
Serial and
Item Model Number Amount
2006 International 7400 dump truck 1 HTWGAAT26J288954 $46,500.00
SECURITY AGREEMENT - 6
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CERTIFICATE OF APPROPRIATION
The undersigned Treasurer hereby certifies with respect to the Loan Agreement (the "Loan Agreement"), dated as
of February 28, 2014, by and between the City of Kalispell (the 'Borrower") and the Board of Investments (the
"Board") that:
1. The governing body of the Borrower will prepare its budget for the fiscal year 2015 and will include in
the budget an amount designated and sufficient to make the Loan Repayments (as defined in the "Loan
Agreement") due in fiscal year 2015.
Dated this 28th day of February, 2014.
By Deb Deist
Its Treasurer