Fort Walton Beach Resolution — 2013-12--Capital Improvement Revenue — reading text

FORM OF NOTE ....................................................... .............................. SECTION 9. SECURITY FOR NOTE; NOTE NOT DEBT OF THE CITY ...............7 SECTION 10. 8 COVENANTS OF THE CITY .................................. .............................. SECTION 11. APPLICATION OF NOTE PROCEEDS ................. ............................. 10 SECTION 12. 10 CONDITIONS PRECEDENT .................................. ............................. SECTION 13. 11 REPRESENTATIONS AND WARRANTIES ....... ............................... SECTION 14. 12 TAX COMPLIANCE ............................................. ............................... SECTION15. 12 NOTICES .................................................................. ............................. SECTION 16. EVENTS OF DEFAULT DEFINED ........................ ............................. 12 SECTION17. 13 REMEDIES ............................................................... ............................. SECTION 18. NO RECOURSE ....................................................... .............................14 SECTION 19. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND 14 HOLIDAYS....................................................... ............................... SECTION 20. 14 DEFAULT RATE ..................................................... ............................. SECTION 21. 14 DEFEASANCE ....................................................... ............................... SECTION 22. AMENDMENTS, CHANGES AND MODIFICATIONS ..._ ............... 14 SECTION 23. BINDING EFFECT .................................................. .............................15 SECTION 24. 15 SEVERABILITY ...................................................... ............................. SECTION 25. 15 EXECUTION IN COUNTERPARTS .................... ............................... SECTION 26. 15 APPLICABLE LAW ................................................ .............................  This LOAN AGREEMENT made and entered as of May 6, 2013, by and between the CITY OF FORT WALTON BEACH, FLORIDA ( the " City") and PINNACLE PUBLIC FINANCE, INC., (the " Lender "). WITNESSETH WHEREAS, the City has determined that it is necessary, desirable and in the best interests of the City that the City issue $ 4, 470, 610. 00 in aggregate principal amount of its Capital Improvement Revenue Note, Series 2013 ( the ' Note "), for the principal purpose of refinancing the principal portion of the outstanding City of Fort Walton Beach, Florida Capital Improvement Revenue Bonds, Series 2001 ( the ' Refunded Bonds "); and WHEREAS, the Lender has agreed to lend the City the aggregate principal amount of $4, 470,610. 00 in exchange for City issuing the Note for the benefit of the Lender; and WHEREAS, the City has determined that it is in the best interest of the health, safety, and welfare of the City and the inhabitants thereof that the City covenant to budget and appropriate from its Non -Ad Valorem Revenues ( defined herein) amounts sufficient to repay the principal of and interest on the Note when due as provided herein; and WHEREAS, the Note shall not constitute a general obligation or indebtedness of the City as a " bond" within the meaning of any provision of the Constitution of the State, but shall be and is hereby declared to be a special, limited obligation of the City, the principal of and interest on which is payable solely from the Pledged Funds ( as defined herein) in the manner and to the extent provided herein, and the principal of and interest on the Note and all other payments provided for herein will be paid solely from the Pledged Funds, and it will never be necessary or authorized to levy taxes on any real property of or in the City to pay the principal of or interest on the Note or other payments provided for herein. Furthermore, neither the Note nor the interest thereon shall be or constitute a lien upon the any property of or in the City, other than the Pledged Funds in the manner and to the extent provided herein. NOW, THEREFORE, in consideration of the premises and the mutual covenants herein set forth and other good and valuable consideration, the receipt and sufficient of which are hereby acknowledged, the parties do hereby agree as follows: SECTION 1. DEFINITIONS. The following terms shall have the following meanings herein, unless the text otherwise expressly requires: Act" means Chapter 166, Florida Statutes, the City Charter and other applicable provisions of law.  Authorized Investments" means any obligations, deposit certificates, or other evidences of indebtedness legal for investment pursuant to law, to the extent not inconsistent with the terms of the investment policy of the City and applicable law. Bond Counsel' means Nabors, Giblin & Nickerson, PA., Tampa, Florida. Business Day" means any day of the year on which banks in Fort Walton Beach, Florida are not required or authorized by law to remain closed and on which the Lender and the Paying Agent and the New York Stock Exchange, Inc. are open for business. City" means City of Fort Walton Beach, Florida, a municipal corporation duly organized and validly existing under the laws of the State of Florida. City Manager" means the City Manager or any Assistant City Manager or Acting City Manager designated by the City Manager or the Council to act on his or her behalf or such other person as may be duly authorized to act on his or her behalf. Clerk" means the City Clerk or any Deputy Clerk designated by the Clerk to act on his or her behalf or such other person or persons as may be duly authorized to act on his or her behalf. Code" means the Internal Revenue Code of 1986, as amended, and the applicable Regulations, procedures and rules thereunder in effect or proposed. Council" means the City Council of the City. Federal Securities" means direct obligations of the United States of America and obligations the principal of and interest on which are fully guaranteed by the United States of America, none of which permit redemption prior to maturity at the option of the obligor. Financial Advisor" means Public Financial Management, Inc., Orlando, Florida. Fiscal Year' means the period from October I to the succeeding September 30, or such other period as may be prescribed by law. Interest Payment Date" means January I and July 1 of each year, commencing January 1, 2014. Lender" means Pinnacle Public Finance, Inc., as initial registered owner of the Note, or its successor in interest or its assigns. Mayor" means the Mayor of the Council, acting on behalf of the Council, and in his absence or unavailability, the Mayor Pro -tern of the Council, and such other person or persons as may be duly authorized to act on their behalf.  Non -Ad Valorem Revenues" means all revenues of the City derived from any source whatsoever other than ad valorem taxation and legally available to pay principal of and interest on the Note. Note" means the Note of the City delivered to the Lender in substantially the form attached hereto as Exhibit A with such modifications thereto as may be approved by the Mayor, upon the advice of the City Attorney and Bond Counsel, such approval to be presumed by the Mayor's execution thereof. Paying Agent" means the Clerk. Person" or words importing persons, means firms, associations, partnerships including without limitation, general and limited partnerships), joint ventures, societies, estates, trusts, corporations, public or governmental bodies, other legal entities and natural persons. Pledged Funds" means, until applied in accordance with the provisions of this Loan Agreement, all moneys, including investments thereof, in the Sinking Fund established hereunder. Pledged Funds shall include all amounts transferred to the Sinking Fund as a result of the City's covenant to budget and appropriate Non -Ad Valorem Revenues contained herein. Refunded Bonds" means the City of Fort Walton Beach, Florida Capital Improvement Revenue Bonds, Series 2001. Register" means the books maintained by the Registrar in which are recorded the names, and addresses of the holder of the Note. Registrar" means the Person maintaining the Register. The Registrar shall be the Clerk. Regulations" means the Income Tax Regulations promulgated by the Internal Revenue Service under Sections 103, 141 through 150 and 265 of the Internal Revenue Code of 1986 in effect from time to time. Resolution" means Resolution No. 2013 -12, adopted by the Council on April 23, 2013. Sinking Fund" means the fund created and established pursuant to Section 10( D) hereof. State" means the State of Florida. Stated Rate" shall mean 2. 30% per annum subject to adjustment as follows: the interest rate shall be adjusted ( retroactively, if necessary) to provide the Lender with the same after -tax yield on the Note if there occurs a final determination by the Internal Revenue Service or a court that interest on the Note is not excluded from gross income for federal tax income tax purposes. A separate default rate applies upon the occurrence of an Event of Default, as set forth in Section 20 hereof. SECTION 2. INTERPRETATION. Unless the context clearly requires otherwise, words of masculine gender shall be construed to include correlative words of the feminine and neuter genders and vice versa, and words of the singular number shall be construed to include correlative words of the plural number and vice versa. This Agreement and all the terms and provisions hereof shall be construed to effectuate the purpose set forth herein and to sustain the validity hereof. SECTION 3. THE LOAN. A. Loan. The Lender hereby makes and the City hereby accepts the loan in the principal amount of $4, 470, 610. 00 upon the terms and conditions herein. B. Disbursement of Proceeds. Proceeds of the loan shall be made available to the City on the date of closing of the loan upon the written direction of the City. SECTION 4. DESCRIPTION OF NOTE. ( a) The loan shall be evidenced by the Note. The Note shall be dated as of the date of initial delivery thereof; shall mature on July 1, 2031, shall