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HomeMy Public PortalAboutTAB 4.pdfNo. R-1 $7,130,000 UNITED STATES OF AMERICA STATE OF FLORIDA VILLAGE OF KEY BISCAYNE CAPITAL IMPROVEMENT REVENUE REFUNDING BONDS SERIES 2011B Registered Owner:. SunTrust Bank Principal. Amount: Seven Million One Hundred Thirty Thousand Dollars ($7,130,000) KNOW ALL MEN BY THESE PRESENTS, that the Village of Key Biscayne, Florida (the "Village"), for value received, hereby promises to pay to the Registered Ownershown above, or registered assigns (the "Bank"), from the sources hereinafter mentioned, the Principal Amount specified. above. Subject to the rights of prior prepayment and redemption described in this Bond, the Bonds shall mature'on November 1, 2022. Payments due hereunder shall be made no later than 2:00 p.m., Eastern time, on the date due, free and clear #of any defenses, set -offs, counterclaims, or withholding or deductions for taxes. Except as provided in Section 14(e) of the Resolution (defined below); if any payment required to be made hereunder is not paid within ten (10) days of when due, the Village shall pay to the Owners a late charge equal to two percent (2% o) of the late payment. Except as provided in Section 14(e) of the Resolution (defined below), if any payment required to be made hereunder is not paid within thirty (30) days of when due, the interest rate on this Bond shall be increased to a Default Rate equal to the then applicable interest rate on this Bond plus four percent (4%) per annum until paid. This Bond is issued under authority of and in full compliance with the Constitution and laws of the State of Florida, including particularly Part II of Chapter 166, Florida Statutes, as amended, the Charter of the Village, Ordinance No. 2011-8 duly adopted by the Village Council (the "Council") of the Village on June 28, 2011 (the "Ordinance"), and Resolution No: 2011-15 adopted on June 28, 2011 (the "Resolution," and collectively with the Ordinance, the "Bond Ordinance"), and is subject to the terms of said Bond Ordinance. This Bond is issued for the purpose of refunding the Village's $9,987,551 Capital Improvement Revenue Bonds, Series 2002, and paying certain costs of f issuance of the Bonds. This Bond shall be payable only from the sources identified herein. Subject to adjustment as provided, below, this Bond shall bear interest on the outstanding principal balance from its date of issuance payable quarterly on the first day of each February, May, August and November (the "Interest Payment Dates"), commencing. November 1, 2011, at an interest rate equal to 2.41% per annum. Interest on this Bond shall be computed on the basis of a 360 -day year consisting of twelve 30 -day months. [It is acknowledged that the foregoing basis of computation of interest differs from that contained in the Resolution, and that the terms contained in this Bond shall control.] 32N731303.DOC The principal of and interest on this Bond are payable in lawful money of the United States of America by wire transfer or by certified check delivered on or prior to the date due to the registered Owner or his legal representative at the address of the Owner as it appearson the registration books of the Village. Adjustment of Interest. Rate For Full Taxability. Upon a Determination of Taxability, the rate of interest 011 the Bonds shall be adjusted upward to 3.597% per annum (the "Taxable Rate"), retroactive as of the date of the Determination of Taxability event. In addition to the payments of principal and interest on the Bonds required to be paid pursuant to the terms of the Resolution and the Bonds, the Village hereby agrees to pay to the Owners an amount equal to any interest, penalties on overdue interest and additions to tax (as referred to in Subchapter A of Chapter 68 of the of the Internal Revenue Code of 1986, as amended (the "Code")) owed by the Owners as a result of the occurrence of a Determination of Taxability. All such interest, penalties on overdue interest, and additions to tax shall be paid by the Village on the next succeeding Interest Payment Date following the Determination of Taxability. A "Determination of Taxability" shall mean a final decree or judgment of any Federal court or a final action of the Internal Revenue Service determining that interest paid or payable on any Bond is or was includable in the gross income of ati Owner of the Bonds for, Federal income tax purposes; provided, that no such decree, judgment, or action will be considered final for this purpose, however, unless the Village has been given written notice and, if it is so desired and is legally allowed, has been afforded the opportunity to contest the same, either directly or in the name of any Owner of a Bond, and until the conclusion of any appellate review, if sought. Adjustment of Interest Rate for Change in Maximum Corporate Tax Rate. In the event that the maximum effective federal corporate tax rate (the "Maximum Corporate Tax Rate") during any period with respect to which interest shall be accruing on the Bonds on a tax-exempt basis, shall be decreased below thirty-five percent (35%), the interest rate on the Bonds that are bearing interest on a tax-exempt basis shall be adjusted upward to the product obtained by multiplying the interest rate then in effect on the Bonds by a fraction equal to (1-A divided by 1- B), where A equals the Maximum Corporate Tax Rate in effect as, of the date of adjustment and B equals the Maximum Corporate Tax Rate in effect immediately prior to the date of adjustment. The interest rate otherwise borne by the Bonds shall be adjusted automatically as of the effective date of each decrease in the Maximum Federal Corporate Tax Rate. Adjustment of Interest Rate for Other Changes Affecting After -Tax Yield. (A) If any Change in Law shall, in the Bank's reasonable determination, either (a) change the basis of taxation of payments to the Bank of any amounts payable by the Village hereunder (other than taxes imposed on the overall net income of the Bank), (b) impose, modify or deem applicable any reserve, special deposit or similar requirement against the Bonds owned by the Bank or (c) impose on the Bank any other condition relating, directly or indirectly, to the Resolution or the Bonds, and the result of any event referred to in the preceding clause (a), .(b) or (c) shall be to increase the cost to the Bank of owning the Bonds, then, upon written demand by. the Bank, the Village hereby agrees to pay promptlyto the Bank, from time to time as specified 32N731303.DoC 2 by the Bank, such additional amounts as shall be sufficient to compensate the Bank for such increased cost. A . certificate of the Bank claiming compensation under this subsection and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive absent manifest error. In determining any such amount, the Bank may use any reasonable averaging and attribution methods. (B) If, afterthe date of the Resolution, the Bank shall have reasonably determined that a Change in Law regarding capital adequacy, has or would have the effect of reducing the rate of return on the Bank's capital, on the Bonds or otherwise, as a consequence of its ownership of the Bonds to a level below that which the Bank could have achieved but for such adoption, change or compliance (taking into consideration the Bank's policies with respect to capital adequacy) by an amount deemed by the Bank to be material, then from time to time, promptly upon demand by the Bank, the Village hereby agrees to pay the Bank such additional amount or amounts as will compensate the Bank for such reduction. A certificate of the Bank claiming compensation under this subsection and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive absent manifest error. In determining any such amount, the Bank may use any reasonable averaging and attribution methods, . (C) A "Change in Law" shall means the occurrence, after the date of the Resolution, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof ;by any governmental authority charged with the interpretation or administration thereof ("Governmental Authority") or (c) the making or issuance of any rule, guideline or directive (whether or not having the force of law) by any Governmental Authority. For purposes of this subheading, the term "Bank" shall mean SunTrust Bank and its successors and assigns. Mandatory . Prepayment. The principal of this Bond shall be subject to mandatory prepayment in quarterly installments on each Interest Payment Date, commencing November 1, 2011 in the amounts set forth below: Interest Payment Date November 1, 201.1 February 1, 2012 May 1, 2012 August 1, 2012 November 1, 2012. February 1, 2013 May 1,2013 August 1, 2013 November 1, 2013 February 1, 2014 May 1, 2014 August 1, 2014 November 1, 2014 February 1, 201.5 32N731303.DOC Principal Installment Due $140,000 140,000_ 140,000 140,000 140,000 140,000 140,000 140,000 155,000 150,000 145,000 145,000 150,000 155,000 3 Interest Payment Date August 1, 2017 November 1; 2,017 February 1, 2018 May 1, 2018 August 1, 201.8 November 1, 2018 February 1, 2019 May 1, 2019 August 1, 2019 November 1, 2019 February 1, 2020 May 1, 2020 August 1, 2020 November 1, 2020 Principal Installment Due $155,000 165,000 165,000 160,000 160,000 165,000 170,000 165,000 165,000 165,000 170,000 170,000 170,000 170,000 May 1, 2015 150,000 February 1, 2021 170,000 August 1, 2015 150,000 May 132021 170,000 November 1, 2015 150,000 August 1, 2021 170,000 February 1, 2016 155,000 November 1, 2021 185,000 May 1, 2016 150,000 February 1, 2022 180,000 August 1, 2016 150,000 May 1,-2022 175,000 November 1, 2016 165,000 August 1, 2022 175,000 February 1, 2017 160,000 November 1, 2022 185,000 May 1, 2017 155,000 In the event that there .:is more than one Owner of the Bonds, (i) the Village shall determine the amount of each Bond to be redeemed, and (ii) the Village shall give notice to each Owner of the Bonds at least three (3) days prior to the date of mandatory redemption of the amount of each Bond to be redeemed. • This Bond is subject to optional prepayment, upon sixty (60) days written notice to the Bank, in whole, or in part at any time, at a price of par plus accrued interest to the date of prepayment. Any partial prepayments shall be applied to installments of principal in inverse order of maturity and shall not postpone any due dates of, or relieve the amounts of, any scheduled installment payments due hereunder. The Village has covenanted and agreed in the Bond Ordinance to appropriate in its annual budget, by amendment, if necessary, from Non -Ad Valorem Revenues (as defined below) lawfully available in each fiscal year, amounts sufficient to pay the principal and interest due on the Bonds inaccordance with their terms during such fiscal year. "Non -Ad Valorem Revenues" means .all revenues of the Village derived from any source other than ad valorem taxation on real or personalproperty and which are legally available to make the payments required under the Bond Ordinance, but only after provision has been made by the Village for the payment of all essential or legally mandated services not otherwise provided for by ad valorem taxes. Such covenant and agreement on the part of the Village to budget and appropriate such amounts of Non -Ad Valorem Revenues shall be cumulativeto the extent not paid, and shall continue until such Non -Ad Valorem Revenues or other legally available funds in amounts sufficient to make all such required payments shall have been budgeted, appropriated and actually paid. Notwithstanding the foregoing covenant of the Village, the Village does not covenant to maintain any services or programs, now provided or maintained by the Village, which generate non -ad valorem revenues. Such covenant to, budget and appropriate" does not create any lien upon or pledge of such Non -Ad Valorem Revenues, nor, except to the extent provided in Section 14 of the Resolution, does it preclude the Village from pledging in the future its Non -Ad Valorem Revenues, nor does it require the Village to levy and collect any particular Non -Ad Valorem Revenues, nor does it give the Bondholders a prior claim on the Non -Ad Valorem Revenues as opposed to claims of owners of other bonds of the Villagesecured in the same manner as the Bonds. Such covenant to budget and appropriate Non -Ad Valorem Revenues is subject in all respects to the payment of obligations secured by a pledge of such Non -Ad Valorem Revenues heretofore or hereinafter entered into (including the payment of debt service on bonds and other debt instruments). .However, the covenant to budget and appropriate in its general annual budget for the purposes 2Ni31303.DOC 4 and in the manner stated herein shall have the effect of making available in the manner describe . herein Non -Ad Valorem Revenues and placing on the Village a positive duty to appropriate and budget, by amendment, if necessary, amounts sufficient to meet its obligations under the Bond Ordinance, subject, however, in all respects to the terms of the Bond Ordinance and the restrictions of Section 166.241(3), Florida Statutes, which provides, in part, that the governing body of each municipality make appropriations for each fiscal year which, in any one year, shall not exceed the amount to be received from taxation or other revenue sources; and subject, further, to the payment of services and programs which are for essential public purposes affecting the health, welfare and safety of theinhabitants of the Village or which are .legally mandated by applicable law. THIS BOND SHALL NOT BE DEEMED TO CONSTITUTE AN INDEBTEDNESS OF THE VILLAGE OR A PLEDGE OF THE FAITH AND CREDIT OF THE VILLAGE, BUT SHALL BE PAYABLE EXCLUSIVELY FROM LEGALLY .AVAILABLE NON -AD VALOREM REVENUES OF THE VILLAGE. THE ISSUANCE OF THIS BOND SHALL NOT DIRECTLY OR INDIRECTLY OR CONTINGENTLY OBLIGATE THE VILLAGE TO LEVY OR TO PLEDGE ANY FORM OF AD VALOREM TAXATION WHATEVER • THEREFOR NOR SHALL THIS BOND CONSTITUTE A `CHARGE, LIEN, OR ENCUMBRANCE, LEGAL OR EQUITABLE, UPON ANY PROPERTY OF THE VILLAGE, AND THE HOLDER OF THIS BOND SHALL HAVE NO RECOURSE TO THE POWER OF AD VALOREM TAXATION. The original registered Owner, and each successive registered Owner of this Bond shall be conclusively deemed to have agreed and consented to the following terms and conditions: 1. The Village shall keep books for the registration of Bonds and for the registration of transfers of Bonds as provided in the Resolution. Bonds may be transferred or exchanged upon the registration books kept by the Village, upon delivery to the Village, together with written instructions as to the details of the transfer or exchange, of such Bonds in form satisfactory to the Village and with guaranty of signatures satisfactory to the Village, along with the social security number or federal employer identification number of any transferee and, if the transferee is a trust, the name and social security or federal tax identification numbers of the settlor and beneficiaries of the trust, the date of the trust and the name of the trustee. The Bonds may be exchanged for Bonds of the same principal amount and maturity and denominations in integral multiples of $250,000 (except that an odd lot is permitted to complete the outstanding principal balance). No transfer or exchange of any Bond shall be effective until entered on the registration books maintained by the Village. 2. The Village may deem and treat the person in whose name any Bond shall be registered upon the books of the Village as the absolute Owner of such Bond, whether such Bond shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal of and interest on such Bond as they become due, and for all other purposes. All such payments so made to any such Owner or upon his order shall be valid and effectual to satisfy and discharge the liability upon such Bond to the extent of the sum or sums so paid. 32N731303.DOC 5. 3. In all cases in which the privilege of exchanging Bonds or transferring Bonds is exercised, the Village shall execute . and deliver Bonds in accordance with the provisions of the Resolution. There shall be no charge for any such exchange or transfer of Bonds, but the Village may require payment of a sum sufficient to pay any tax, fee or other governmental charge required to be paid with respect to such exchange or transfer: The Village shall not be required to transfer or exchange Bonds for a period of fifteen (15) daysnext preceding an interest payment date on such Bonds. 4. All Bonds, the principal of arid interest on which have been paid, either at or prior to maturity, shall be delivered to the Village when such full payment is made, and shall thereupon be cancelled. In case a portion but not all of an outstanding Bond shall be prepaid pursuant to mandatory prepayment provisions, such Bond : shall not be surrendered in exchange for a new Bond, but the Village shall make a notation indicating the remaining outstanding principal of the Bonds upon the registration books The Bond so redesignated shall have the remaining principal as provided on such registration books and shall be deemed to have been issued in the denomination of the outstanding principal balance, which shall be an authorized denomination.40, It is hereby certified and recited that all acts, conditions and things required to happen, to exist and to be performed precedent to and for the issuance of this Bond have happened, do exist and have been performed in due time, foEII1 and manner as required by the. Constitution and the laws of the State of Florida applicable thereto. IN WITNESS WHEREOF, the Village of Key Biscayne, Florida has caused this Bond to be executed by the manual or facsimile signature of its Mayor and of its Village Clerk, and the Seal of the Village of Key Biscayne, Florida or a facsimile thereof to be affixed hereto or imprinted orreproducedhereon, all as of the l sf day of August, 2011. OF KEY BISCAYN Village Clerk 6 ASSIGNMENT FOR VALUE RECEIVED, the undersigned (the "Transferor"), hereby sells, assigns and transfers unto (Please insert name and Social Security or Federal Employer identification number of assignee) the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints (the "Transferee") as attorney to register the transfer of the within Bond on the books kept for registration thereof, with full power of substitution in the premises. Date Social Security Number of Assignee Signature Guaranteed: NOTICE: Signature(s) must be guaranteed by a member firm of the New York Stock Exchange or a commercial bank or a trust company NOTICE: No transfer will be registered and no new Bond will be issued in the name of the Transferee, unless the signature(s) to this assignment corresponds with the name as it appears upon the face of the :within Bond in every particular, without alteration or enlargement or any change whatever and the Social Security or Federal Employer Identification Number of the Transferee is supplied: The following abbreviations, when used in the inscription on the face of the within Bond, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - as tenants in common UNIF GIF MIN ACT - (Cust.) Custodian for (Minor) TEN ENT as tenants by the entirety JT TEN - as joint tenants with right of survivorship and not as tenants in common under Uniform Gifts to Minors Act of (State) Additional abbreviations may also be used though not in the list above. 32N731303.DOC 7