Okaloosa County BOCC — October 2, 2012 — reading text

Monthly Interest as so recalculated. Notwithstanding the definition of Estimated Monthly Rate and in accordance with 26 Packet Pg. 138  8.2.1.a the provisions of Section 3.03(b) of the Indenture, the Administrator, in its sole discretion, may recalculate the Estimated Monthly Rate if necessary to ensure Attachment: Okaloosa Loan Agreement (Airport Revenues) (1111 : Approval of Resolution to Refinance Capital Projects Loan) sufficient funds are on deposit in the applicable Interest Payment Account under the Indenture. Upon full payment and discharge of the Loan, the Commission shall cause the Trustee to pay over to the Public Agency the Monthly Investment Credits and Monthly Excess Credits accrued during the calendar month in which the Loan is paid and discharged. (b) Notwithstanding the foregoing, if the Public Agency fails to make a Loan Repayment on the due date thereof and an unreimbursed draw is made on the Letter of Credit as a result of such delinquency, interest will accrue on the unpaid portion of the Loan Repayment at the Default Rate from the original due date of such Loan Repayment to the date of payment of all due and unpaid Loan Repayments. (c) The principal component of any Loan Repayments shall be paid by the Public Agency to the Trustee at such time and in such manner as provided in the Repayment Schedules, unless (i) the Loan Amounts are prepaid in accordance with the terms hereof, (ii) the Repayment Schedules are modified in accordance with the terms hereof, including, but not limited to Section 3.04(c) hereof, (iii) any portion of the Loan becomes subject to mandatory prepayment pursuant to Section 5.06 hereof, or (iv) the due dates of the Loan Repayments are accelerated pursuant to the terms of Section 8.03 hereof. (d) In determining the Estimated Monthly Interest as described in Section 5.01(a) above, the Public Agency receives a credit against each Loan Repayment for investment earnings on moneys in the Accounts. The Public Agency shall receive a pro- rata share of such investment earnings based on the amount of money representing the interest component of Loan Repayments as described in Section 5.02(a) hereof made by each Public Agency participating in the Pooled Commercial Paper Loan Program. (e) The Public Agency acknowledges that the Commission has agreed, pursuant to Section 3.03(g) of the Indenture, that upon the occurrence and continuance of any default under Section 8.01(a) hereof, or, upon the acceleration of the Loan, all Loan Repayments are to be deposited by the Trustee in a special escrow account pursuant to such Section 3.03(g) and held as a part of the Trust Estate for the sole benefit of and as security for the Noteholders and the Bank, pending the application of such moneys to pay, or to reimburse the Bank (including interest on unreimbursed amounts at the applicable rate or rates as set forth in the Credit Agreement) for L/C Payments made by the Bank to pay, Commercial Paper Notes and the interest thereon at their maturity; provided, that (i) any net earnings (or losses) derived from the investment of any portion of such moneys held in such special escrow account shall be credited to (or, in the case of losses, payable by) the Public Agency, and (ii) the Public Agency shall remain liable for 27 Packet Pg. 139  8.2.1.a its share of the amounts specified in subsections (a), (b), (c) and (d) of Section 5.02 hereof accruing during the period moneys are held by the Trustee in such special escrow Attachment: Okaloosa Loan Agreement (Airport Revenues) (1111 : Approval of Resolution to Refinance Capital Projects Loan) account. The Public Agency agrees that it shall have no interest in or rights to such special escrow account, subject to clause (i) of the proviso in the preceding sentence. The provisions of this Section 5.01(e) shall survive the payment in full of the Loan Repayments. (f) The Public Agency shall make all Loan Repayments in lawful money of the United States of America to the Trustee as required hereby. All Loan Repayments shall be made by electronic or wire transfer or other method of immediate funds payment at or prior to 3:00 p.m. on the due date. (g) Any amount not paid when due shall bear interest at the Default Rate until paid. SECTION 5.02. CALCULATION OF LOAN RATE. Except as otherwise provided in Section 5.01 of this Loan Agreement, the Loan Rate shall equal the sum of subsections (a), (b), (c) and (d) minus (e) of this Section 5.02: (a) Interest on the Commercial Paper Notes. A rate which reflects the Actual Monthly Interest on the Loan, payable in the amount of Estimated Monthly Interest, subject to Monthly Excess Credits and Monthly Investment Credits, as provided in Section 5.01 hereof; and, provided further, however, the Public Agency recognizes that when Commercial Paper Notes become due for payment and Commercial Paper Notes cannot be sold by the Dealer to repay such maturing Commercial Paper Notes, such Commercial Paper Notes must be paid with funds provided by the Bank under the Credit Agreement, and the interest rate on Loans or portions thereof will reflect the Bank Rate in accordance with the terms of the Credit Agreement. (b) Proportionate Expenses. A rate which reflects the Public Agency's Proportionate Share of the following items, fees and expenses to the extent that such items are not paid as provided in Sections 5.05 and 6.06(e) hereof: (i) the fees and expenses of the Administrator owed to it under the Administration Agreement; (ii) the fees and expenses of the Trustee owed to it under the Indenture; (iii) the expenses of the Commission, including legal and accounting fees; (iv) the rating fees of Moody's Investors Service and/or Standard & Poor's Corporation; (v) any loss on investments of the Trust Estate; 28 Packet Pg. 140  8.2.1.a (vi) any fees or penalties related to terminating the Program or replacing the Credit Facility; and Attachment: Okaloosa Loan Agreement (Airport Revenues) (1111 : Approval of Resolution to Refinance Capital Projects Loan) (vii) such other reasonable fees and expenses in connection with the Commercial Paper Notes or this Loan Agreement as the Commission may determine. Extraordinary expenses payable pursuant to this Section 5.02(b) shall be stated separately on the bill delivered by the Administrator to the Public Agency. (c) Credit Facility Charges. A rate which reflects the Credit Facility fees or charges of the Bank owed to it under the Credit Agreement by the Public Agency, plus any commitment fees or other fees payable under Section 3.03(c) hereof. The letter of credit fees component of such Credit Facility charge or charges shall be provided in a certificate substantially in the form of Exhibit C hereto or in a resolution adopted by the Public Agency approving the Loan relating thereto, as the same may be amended from time to time. In addition, the Public Agency shall be responsible for payment of a Proportionate Share of any other amounts owing the Bank under the Credit Agreement. (d) Proportionate Dealer Fees. A rate which reflects the Public Agency's Proportionate Share of the fees and expenses of the Dealer owed to it under the Dealer Agreement. (e) Credits. The Public Agency shall receive the credits referred to in Sections 5.01(a) and 5.01(d) hereof (without duplication), applied as set forth in Section 5.02(a) above. SECTION 5.03. LOAN REPAYMENTS. The obligation of the Public Agency to make Loan Repayments or payment of any other amounts required hereunder and to perform and observe the other covenants and agreements contained herein shall be absolute and unconditional in all events. Notwithstanding any dispute between the Public Agency and the Commission, the Trustee, the Bank, the Administrator or any Noteholder, the Public Agency shall pay Loan Repayments or any other amounts when due and shall not withhold any Loan Repayments or any other amounts payable hereunder pending final resolution of such dispute nor shall the Public Agency assert any right of setoff or counterclaim against its obligation to make such payments required under this Loan Agreement. The Public Agency's obligation to make payment of Loan Repayments or any other amounts due shall not be abated through accident or unforeseen circumstances. The Commission, the Bank and the Public Agency agree that the Public Agency shall bear all risk of damage or destruction in whole or in part to the Projects or any part thereof, including without limitation any loss, complete or partial, or interruption in the use, occupancy or operation of such Projects, or any manner or thing which for any reason interferes with, prevents or renders burdensome the use or occupancy of the Projects or the compliance by the Public Agency with any of the terms of this Loan 29 Packet Pg. 141  8.2.1.a Agreement. Notwithstanding the foregoing, this Section shall not limit the rights of the Public Agency to recover amounts owing to it, except as specifically set forth herein. Attachment: Okaloosa Loan Agreement (Airport Revenues) (1111 : Approval of Resolution to Refinance Capital Projects Loan) SECTION 5.04. MAXIMUM LEGAL INTEREST RATE. Notwithstanding the calculation of interest pursuant to Section 5.02 hereunder, the Commission and the Public Agency acknowledge that it is their intent to contract hereunder in strict compliance with the usury laws of the State. In furtherance thereof, the Commission and the Public Agency stipulate and agree that none of the terms and provisions contained herein or under any instruments held as security hereunder, shall ever be construed to create a contract for the use, forbearance or detention of money requiring payment of interest at a rate in excess of the Maximum Legal Rate. The Public Agency shall never be liable for interest on any Loan Note at a rate in excess of the Maximum Legal Rate applicable thereto. The provisions of this Section shall control over all other provisions of this Loan Agreement and any other instruments executed in connection herewith which may be in apparent conflict herewith. If a court of competent jurisdiction shall make a final determination that the performance of any provision of this Loan Agreement shall result in a payment of an amount for such use, forbearance