Fort Walton Beach Council agenda — 04-12-11 regular — reading text

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 1 to the succeeding September 30, or such other period as may be prescribed by law. Lender" means Hancock Bank, 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 -tem of the Council, and such other person or persons as may be duly authorized to act on their behalf. 2  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. means the Note of the City delivered to the Lender in substantially the Note" 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. Project" shall have the meaning set forth in the WHEREAS clauses hereof. 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. 2011 -8, adopted by the Council on April 12, 2011. 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. 55% subject to adjustment as follows: ( i) in the event of a change from the current 35% rate in the maximum federal income tax rate applicable to corporations, the interest on the Note shall be automatically adjusted, up or down, in 3 order to maintain the same after -tax yield to the Lender; or ( ii) the interest rate shall be adjusted ( retroactively, if necessary) to provide the Lender with the same after -tax yield on the Note if (x) any amendments to existing law, other than a change in the corporate tax rate, are adopted which adversely affect the after -tax yield, ( y) 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 or ( z) the Note is determined not to be a " qualified tax -exempt obligation" within the meaning of section 265( b)( 3)( B) of the Code. 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 $ 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. The loan shall be evidenced by the Note. The Note shall be dated as of the date of initial delivery thereof, shall mature on April 1, 2021, shall be in registered form; and shall bear interest from its date until payment of the principal amount thereof, at the Stated Rate. Interest on the Note shall be payable quarterly on each January 1, April 1, July 1 and October 1, commencing July 1, 2011 and at the maturity of the Note, calculated on a basis of 360 days comprised of twelve, 30 -day months. Principal shall be paid quarterly each January 1, April 1, July 1 and October 1, commencing July 1, 2011, in the amounts set forth in the form of Note attached hereto as Exhibit A. The Note may be prepaid in whole, on any date prior to its maturity, at the option of the City, from any moneys legally available therefor, upon 10 days prior written notice to the Lender, without a prepayment premium, by paying to the Lender the outstanding principal amount of the Note, together with the unpaid interest accrued on the outstanding principal amount of the Note to the date of such prepayment. Further, the Note may be prepaid in part on a scheduled payment date, prior to its maturity, at the option of the City, from any moneys legally available therefor, upon 10 days prior written notice to the Lender, without a prepayment premium, by paying to the Lender the principal amount of the Note to be prepaid, together with unpaid interest accrued on the portion of such 12 principal prepaid. In the event of partial prepayment, the Loan shall be reamortized, utilizing the remaining principal balance over the remaining term of the Loan. Upon written notice by the City to the Lender, as provided above, the outstanding principal amount of the Note or portion thereof, as indicated in such notice, shall become due and payable on the date of prepayment stated in such notice, together with interest accrued and unpaid to the date of prepayment of the outstanding principal amount or portion thereof of the Note. If on the date of prepayment moneys for the payment of the outstanding principal amount or portion thereof on the Note, together with interest to the date of prepayment on such principal amount or portion thereof, shall have been paid to the Lender as provided above, then from and after the date of prepayment, interest on the Note for the outstanding principal amount prepaid in whole or such portion of principal prepaid shall cease to accrue. If said money shall not have been so paid on the date of prepayment, the Note shall continue to bear interest until payment thereof at the Stated Rate. SECTION 5. EXECUTION OF NOTE. The Note shall be executed in the name of the City by the Mayor, and attested and countersigned by the Clerk, and its official seal or a facsimile thereof shall be affixed thereto or reproduced thereon. The Note may be signed and sealed on behalf of the City by any person who at the actual time of the execution of such Note shall hold such office in the City, although at the date of such Note such person may not have been so authorized. The Note may be executed by the facsimile signatures of the Mayor or Clerk. SECTION 6. REGISTRATION AND TRANSFER OF NOTE. The Note shall be and shall have all the qualities and incidents of negotiable instruments under the Uniform Commercial Code -Investment Securities Laws of the State of Florida, and each registered owner, in accepting the Note, shall be conclusively deemed to have agreed that such Note shall be and have all of the qualities and incidents of negotiable instruments thereunder. There shall be a Registrar who shall be responsible for maintaining the Register. The person in whose name ownership of the Note is shown on the Register shall be deemed the owner thereof by the City and the Registrar, and any notice to the contrary shall not be binding upon the City or the Registrar. The City and the Registrar may treat the registered owner as the absolute owner of the Note for all purposes, whether or not such Note shall be overdue, and shall not be bound by any notice to the contrary. Ownership of the Note may be transferred only upon the Register. Upon surrender to the Registrar for transfer or exchange of any Note accompanied by an assignment or written authorization for exchange, whichever is applicable, duly executed by the registered owner. or its attorney duly authorized in writing, the Registrar shall deliver in the name of the registered owner or the transferee or transferees, as the case may be, a 67 new fully registered Note of authorized denominations and of the same maturity and interest rate and for the aggregate principal amount as the Note surrendered. The Note presented for transfer, exchange, redemption or payment ( if so required by the City or the Registrar) shall be accompanied by a written instrument or instruments of transfer or authorization for exchange, in form and with guaranty of signature satisfactory to the City or the Registrar, duly executed by the registered owner or by his duly authorized attorney. The Registrar or the City may require payment from the registered owner or his transferee, as the case may be, of a sum sufficient to cover any tax, fee or other governmental charge that may be imposed in relation thereto by any governmental body other than the City. Such charges and expenses shall be paid before any such new Note shall be delivered. The new Note delivered upon any transfer or exchange shall be a valid obligation of the City, evidencing the same debt as the Note surrendered, shall be secured under this Agreement, and shall be entitled to all of the security and benefits hereof to the same extent as the Note surrendered. Whenever any Note shall be delivered to the Registrar for cancellation, upon payment of the principal amount thereof, or for replacement, transfer or exchange, such Note shall be canceled and destroyed by the Registrar, and counterparts of a certificate of destruction evidencing such destruction shall be furnished to the City. SECTION 7. NOTE MUTILATED, DESTROYED, STOLEN OR LOST. In case any Note shall be mutilated, or be destroyed, stolen or lost, upon the registered owner furnishing the Registrar proof of its ownership thereof and satisfactory indemnity and complying with such other reasonable regulations and conditions as the City may prescribe and paying such expenses as the City may incur, the Registrar shall issue and deliver a new Note of like tenor as the Note so mutilated, destroyed, stolen or lost, in lieu of or substitution for the Note, if any, destroyed, stolen or lost, or in exchange and substitution for such mutilated Note, upon surrender of such mutilated Note, if any, to the Registrar and the cancellation thereof, provided, however, if the Note shall have matured or be about to mature, instead of issuing a substitute Note, the City may pay the same, upon