2009-R-32
RESOLUTION NO. 2009-R-32
FIRST SUPPLEMENTAL RESOLUTION
A FIRST SUPPLEMENTAL RESOLUTION OF THE CITY
OF EDGEW A TER, FLORIDA (THE "ISSUER")
SUPPLEMENTING THAT CERTAIN MASTER
RESOLUTION NO. 2009-R-31, ADOPTED ON THE DATE
HEREOF (THE "MASTER RESOLUTION");
AUTHORIZING THE ISSUANCE OF ITS WATER AND
WASTEWATER SYSTEM REFUNDING REVENUE
BOND, SERIES 2009 IN THE AGGREGATE PRINCIPAL
AMOUNT OF NOT TO EXCEED $8,147,125, WHICH
AMOUNT, TOGETHER WITH OTHER FUNDS OF THE
ISSUER, SHALL BE USED TO REFUND ALL OF THE
OUTSTANDING PRINCIPAL AMOUNT OF THOSE
CERTAIN CITY OF EDGEWATER, FLORIDA WATER
AND SEWER REVENUE BONDS, SERIES 1991 AND
THE CITY OF EDGEWATER, FLORIDA WATER AND
SEWER REVENUE REFUNDING BONDS, SERIES 1993
AND TO PA Y CERTAIN COSTS OF ISSUING THE
BOND; PROVIDING THAT THE BOND SHALL BE A
LIMITED OBLIGATION OF THE CITY PAY ABLE FROM
PLEDGED FUNDS OF THE SYSTEM; PROVIDING FOR
THE RIGHTS, SECURITIES AND REMEDIES FOR THE
OWNER OF THE BOND; DESIGNATING THE BOND AS
A QUALIFIED TAX-EXEMPT OBLIGATION WITHIN
THE MEANING OF THE INTERNAL REVENUE TAX
CODE; MAKING CERTAIN COVENANTS AND
AGREEMENTS IN CONNECTION THEREWITH; AND
PROVIDING FOR AN EFFECTIVE DATE.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
EDGEW A TER FLORIDA:
Section 1: Authority for this Resolution. This Resolution is enacted pursuant to
the provisions of Article VIII, Section 2 of the Constitution of the State of Florida,
Chapter 166, Florida Statutes, the Charter of the City of Edgewater, Florida, and other
applicable provisions of law. This Resolution shall constitute a Supplemental Resolution,
as defined in the Master Resolution (defined herein).
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Section 2: Definitions. Capitalized terms used herein but not defined shall have
the respective meanings set forth in the Master Resolution. In addition, the following
words and phrases shall have the following meanings when used herein:
"Business Day" means any day except any Saturday or Sunday or day on which the
Principal Office of the Original Purchaser is closed.
"City Attorney" shall mean the City Attorney or assistant City Attorney of the
Issuer.
"City Manager" shall mean the City Manager or assistant, deputy, interim or acting
City Manager of the Issuer.
"Clerk" shall mean the City Clerk or assistant or deputy City Clerk of the Issuer, or
such other person as may be duly authorized by the City Council of the Issuer to act on his
or her behalf.
"Default Rate" shall mean the interest rate applicable to the Series 2010 Bond,
plus three percent (3%).
"Event of Default " shall mean any Event of Default as set forth in Section 15.0. of
the Master Resolution.
"Finance Director" shall mean the Finance Director of the Issuer, or any assistant
or deputy Finance Director of the Issuer.
"Interest Payment Date" shall mean each April I and October 1, commencmg
April 1, 2010.
"Master Resolution" means that certain Resolution No. 2009-R-31, adopted by the
Issuer on November 16, 2009, as the same may be amended and supplemented from time
to time in accordance with its terms or the terms of any applicable supplemental
resolution. The Master Resolution is hereby incorporated by reference into the body of
this Resolution as if set forth herein.
"Maturity Date" means October 1, 2016 or such other date as specified in the
Series 2010 Bond.
"Mayor" means the Mayor of the Issuer, or in his or her absence or inability to act,
the Vice Mayor of the Issuer or such other person as may be duly authorized by the City
Council to act on his or her behalf.
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"Original Purchaser" means Wachovia Bank, National Association and its
successors and assigns.
"Owner" means the Person in whose name the Series 2010 Bond shall be
registered on the books of the Issuer kept for that purpose in accordance with provisions
of this Resolution. The initial Owner is the Original Purchaser.
"Person" means natural persons, firms, trusts, estates, associations, corporations,
partnerships and public bodies.
"Pledged Funds" shall have the meaning set forth in the Master Resolution.
"Principal Office" means, with respect to the Original Purchaser, the office located
at 800 North Magnolia Avenue, 8th Floor, Orlando, Florida 32803, or such other office as
the Original Purchaser may designate to the Issuer in writing.
"Qualified Independent Consultant" shall mean one or more qualified and
recognized independent consultants, having favorable repute, skill and experience with
respect to the acts and duties of the Qualified Independent Consultant to be provided to
the Issuer, as shall from time to time be retained by the Issuer to perform the acts and
carry out the duties herein provided for such consultants.
"Refunded Bonds" means all of the Outstanding amounts of those certain City of
Edgewater, Florida Water and Sewer Revenue Bonds, Series 1991 and the City of
Edgewater, Florida Water and Sewer Revenue Refunding Bonds, Series 1993.
"Refunding" means the refunding of the Refunded Bonds and the payment of
certain costs of issuance associated with the issuance of the Series 2010 Bond.
"Resolution" means this Resolution, including any attachments, exhibits,
amendments and supplements thereto.
"Series 2010 Bond" means the Water and Wastewater System Refunding Revenue
Bond, Series 2010 of the Issuer authorized by Section 4 hereof.
"State" means the State of Florida.
"Subordinate Debt" means any notes, bonds, certificates or obligations currently
Outstanding or hereafter issued with a subordinate lien on Pledged Funds.
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Section 3: Findings.
(A) For the benefit of its inhabitants, the Issuer finds, determines and declares
that it is necessary for the continued preservation of the health, welfare, convenience and
safety of the Issuer and its inhabitants to issue the Series 20 I 0 Bond for the purpose of
refunding and refinancing the Refunded Bonds and realizing debt service savings on the
Refunded Bonds in comparison to the Series 20 I 0 Bond. Issuance of the Series 20 I 0
Bond to refund the Refunded Bonds satisfies a paramount public purpose.
(B)
Resolution
System.
The Issuer has authorized the issuance of Bonds pursuant to the Master
in order to finance and refinance the costs of certain improvements to its
(C) The Series 20 I 0 Bond shall constitute "Bonds" as such term is used in the
Master Resolution.
(D) Debt service on the Series 20 I 0 Bonds will be payable from Pledged Funds
on a parity basis to any Additional Parity Bonds issued hereafter from time to time by the
Issuer under the Master Resolution. The Pledged Funds will be sufficient to pay the
principal and interest on the Series 20 I 0 Bonds herein authorized, as the same become
due, and to make all deposits required by the Master Resolution and this Resolution.
(E) The Issuer has received an offer from the Original Purchaser to purchase
the Series 20 I 0 Bonds.
(F) In consideration of the purchase and acceptance of the Series 20 I 0 Bonds
authorized to be issued hereunder by those who shall be the Owner thereof from time to
time (including, but not limited to the Original Purchaser), this Resolution shall constitute
a contract between the Issuer and the Owner.
Section 4: Authorization of Series 2010 Bonds. Subject and pursuant to the
provisions of this Resolution, an obligation of the Issuer to be known as City of
Edgewater, Florida Water and Wastewater System Refunding Revenue Bond, Series 2010
(the "Series 20 I 0 Bond") is hereby authorized to be issued under and secured by this
Resolution, in the principal amount of $8,147,125 for the purpose of providing funds for
the Refunding. Because of the characteristics of the Series 20 I 0 Bond and prevailing
market conditions, it is in the best interest of the Issuer to accept the offer of the Original
Purchaser to purchase the Series 20 I 0 Bond at a private negotiated sale in accordance
with the Commitment of the Original Purchaser attached hereto as Exhibit "A" (the
"Commitment"). Prior to the issuance of the Series 20 10 Bond, the Issuer shall receive
from the Original Purchaser a Purchaser's Certificate, the form of which is attached
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hereto as Exhibit "B" and the Disclosure Letter containing the information required by
Section 218.385, Florida Statutes, a form of which is attached hereto as Exhibit "C".
Section 5: Description of Series 2010 Bond. The Series 2010 Bond shall be dated
the date of its execution and delivery, which shall be a date agreed upon by the Issuer and
the Original Purchaser, and shall have such other terms and provisions, principal and
interest payment terms, maturity dates, interest rate adjustments and prepayment
provisions as stated herein and/or in the form of the Series 2010 Bond attached hereto as
Exhibit "D", the terms and provisions of which are hereby incorporated by reference into
the body of this Resolution; provided, however, that the final maturity of the Series 2010
Bond shall not be in excess of the Maturity Date and the Series 2010 Bond shall bear
interest at an annual fixed interest rate as described in the Commitment. The authorized
denomination of the Series 2010 Bond is the lesser of $100,000 or the amount
outstanding.
The Series 2010 Bond shall be in substantially the form set forth in Exhibit D
attached hereto, together with such non-material changes as shall be approved by the
Mayor, such approval to be conclusively evidenced by the execution thereof by the Mayor
and the Finance Director. The Series 2010 Bond shall be executed on behalf of the Issuer
with the manual or facsimile signature of the Mayor and Finance Director and the official
seal of the Issuer, and be attested and countersigned with the manual or facsimile
signature of the City Clerk. In case anyone or more of the officers who shall have signed
or sealed the Series 2010 Bond or whose facsimile signature shall appear thereon shall
cease to be such officer of the Issuer before the Series 2010 Bond so signed and sealed
has been actually sold and delivered, such Series 2010 Bond may nevertheless be sold and
delivered as herein provided and may be issued as if the person who signed or sealed such
Series 2010 Bond had not ceased to hold such office. The Series 2010 Bond may be
signed and sealed on behalf of the Issuer by such person who at the actual time of the
execution of such Series 2010 Bond shall hold the proper office of the Issuer, although, at
the date of such Series 2010 Bond, such person may not have held such office or may not
have been so authorized. The Issuer may adopt and use for such purposes the facsimile
signatures of any such persons who shall have held such offices at any time after the date
of the enactment of this Resolution, notwithstanding that either or both shall have ceased
to hold such office at the time the Series 2010 Bond shall be actually sold and delivered.
Section 6: Registration and Exchange of Series 2010 Bond; Persons Treated as
Owner. The Series 2010 Bond is initially registered to the Original Purchaser. So long as
the Series 2010 Bond shall remain unpaid, the Clerk will keep books for the registration
and transfer of the Series 2010 Bond. The Series 2010 Bond shall be transferable only
upon such registration books.
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The Person in whose name the Series 2010 Bond shall be registered shall be
deemed and regarded as the absolute owner thereof for all purposes, and payment of
principal and interest on such Series 2010 Bond shall be made only to or upon the written
order of the Owner. All such payments shall be valid and effectual to satisfy and
discharge the liability upon such Series 2010 Bond to the extent of the sum or sums so
paid.
Section 7: Payment of Princioal and Interest: Limited Obligation. The Issuer
promises that it will promptly pay the principal of and interest on the Series 2010 Bond at
the place, on the dates and in the manner provided therein according to the true intent and
meaning hereof and thereof. The Series 2010 Bond shall not be or constitute a general
obligation or indebtedness of the Issuer as a "bond" within the meaning of Article VII,
Section 12 of the Constitution of Florida, but shall be payable solely from the Pledged
Funds on a parity basis to the payment of any Additional Parity Bonds issued under the
Master Resolution in accordance with the terms hereof. No holder of any Series 2010
Bond issued hereunder shall ever have the right to compel the exercise of any ad valorem
taxing power to pay such Series 20 I 0 Bond, or be entitled to payment of such Series 20 I 0
Bond from any funds of the Issuer except from the lien on Pledged Funds as described
herein and in the Master Resolution.
Section 8: Preoavment. Upon at least 5 Business Days' notice in writing, the
Series 20 I 0 Bond shall be subject to prepayment at the option of the Issuer:
(A) in whole or in part on October 1, 2013 or thereafter on any Interest Payment
Date at a price equal to the principal amount thereof to be prepaid, plus accrued interest to
the date fixed for prepayment, without penalty; and
(B) on any other date other than the dates specified in (A) above (an
"Unscheduled Prepayment Date") at a price equal to the principal amount thereof to be
prepaid, plus accrued interest to the date fixed for prepayment, plus any breakage fee that
may be due any owing to the Owner of the Series 2010 Bond on the Unscheduled
Prepayment Date as determined in accordance with the terms of the Commitment attached
hereto as Exhibit "A".
Section 9: Pledge of and Lien on Pledged Funds. The Issuer does hereby pledge
and grant a lien on and security interest in the Pledged Funds to and for the express
benefit of the holders from time to time of the Series 2010 Bond (including but not
limited to the Original Purchaser), in such amounts and at such times as shall be sufficient
to pay principal of and interest on and all other amounts due and owing under the Series
2010 Bond as the same shall become due and payable, all in accordance with the terms of
Section 14 of the Master Resolution.
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Section 10. Apvlication of Proceeds of Series 2010 Bond; Escrow
Account. The proceeds derived from the sale of the Series 2010 Bond shall be deposited
into an Escrow Account established under the Escrow Deposit Agreement attached hereto
as Exhibit "E" (the "Escrow Deposit Agreement") for the redemption and defeasance of
the Refunded Bonds by the Issuer. Upon the deposit of the proceeds of the Series 2010
Bonds into the Escrow Account, such proceeds shall not be available to secure the
repayment of or pay the Series 2010 Bonds, but shall be applied solely for the defeasance
and redemption of the Refunded Bonds.
Section 11: Tax Covenant. The Issuer covenants to the Owner of the Series 2010
Bond provided for in this Resolution that the Issuer will not make any use of the proceeds
of the Series 2010 Bond, at any time during the term of the Series 2010 Bond, which, if
such use had been reasonably expected on the date the Series 2010 Bond was issued,
would have caused such Series 2010 Bond to be "arbitrage bonds" within the meaning of
the Tax Code. The Issuer will comply with the requirements of the Tax Code and any
valid and applicable rules and regulations promulgated thereunder and shall take such
actions as are necessary (or refrain from such actions) to ensure: ( a) the exclusion of
interest on the Series 2010 Bond from the gross income of the holders thereof for
purposes of federal income taxation, and (b) the continued treatment of the Series 2010
Bond as a "qualified tax-exempt obligation" under Section 265(b )(30 of the Tax Code.
Section 12: Amendment. The Master Resolution and this Resolution shall not be
modified or amended in any respect subsequent to the issuance of the Series 2010 Bond
except with the written consent of the Owner of the Series 2010 Bond, which consent
shall not be unreasonably withheld.
Section 13: Limitation of Rights. With the exception of any rights herein
expressly conferred, nothing expressed or mentioned in or to be implied from this
Resolution or the Series 2010 Bond is intended or shall be construed to give to any Person
other than the Issuer and the Owner any legal or equitable right, remedy or claim under or
with respect to this Resolution or any covenants, conditions and provisions herein
contained; this Resolution and all of the covenants, conditions and provisions hereof
being intended to be and being for the sole and exclusive benefit of the Issuer and the
Owner.
Section 14: Series 2010 Bond Mutilated. Destroved. Stolen or Lost. In case the
Series 2010 Bond shall become mutilated, or be destroyed, stolen or lost, the Issuer shall
issue and deliver a new Series 2010 Bond of like tenor as the Series 2010 Bond so
mutilated, destroyed, stolen or lost, in exchange and in substitution for such mutilated
Series 2010 Bond, or in lieu of and in substitution for the Series 2010 Bond destroyed,
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stolen or lost and upon the Owner furnishing the Issuer proof of ownership thereof and
indemnity reasonably satisfactory to the Issuer and complying with such other reasonable
regulations and conditions as the Issuer may prescribe and paying such expenses as the
Issuer may incur. The Series 2010 Bond so surrendered shall be canceled.
Section 15: Imvairment of Contract. The Issuer covenants with the Owner of the
Series 2010 Bond that it will not, without the written consent of the Owner of the Series
2010 Bond, enact any Resolution or adopt any resolution which repeals, impairs or
amends in any manner adverse to the Owner the rights granted to the Owner of the Series
2010 Bond hereunder or under the Master Resolution.
Section 16: Budget and Financial Information. The Issuer shall provide the
Owners of the Series 2010 Bond with:
(A) a copy of its annual audited financial statements (together with any and all
accompanying auditors' letters or opinions) within 180 days of the end of its fiscal year;
(B) a copy of its annual budget within 60 days of the end of its fiscal year;
(C) copies of government audits and inspections related to the System, the
Pledged Funds or otherwise associated with any Bonds issued under the Master
Resolution as the Owners of the Series 2010 Bond may reasonably request from time to
time;
(D) information regarding the Issuer or the Series 2010 Bond that is provided to
any credit rating agencies also shall be provided to the Owners of the Series 2010 Bond;
(E) copies of any current or future ISDA or swap documentation with respect to
Bonds issued under the Master Indenture; and
(F) written notice to the Owners of the Series 2010 Bond of any defaults,
material litigation or material governmental proceedings or action which, if determined
adversely to the Issuer, would materially adversely affect the security for the payment of
the Series 2010 Bond.
The annual audited financial statements for each fiscal year of the Issuer referenced in
Section 16(A) above shall be: (i) prepared in accordance with applicable law and
generally accepted accounting principles and audited by an independent certified public
accountant; and (ii) accompanied by a certificate of compliance, signed by the Finance
Director or other responsible officer of the Issuer, which sets forth calculations of each of
the financial covenants set forth in Section l5.G. of the Master Resolution. All
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accounting terms not specifically defined or specified herein shall have the meanings
attributed to such terms under generally accepted accounting principles as in effect from
time to time, consistently applied.
Section 17: Remedies of Series 2010 Owner upon an Event of Default. In
addition to the provisions of the Master Resolution, upon the occurrence and during the
continuation of any Event of Default, the Owner of any Series 20 I 0 Bond may: (I)
declare the current Outstanding principal amount of the Series 20 I 0 Bond, together with
any accrued but unpaid interest on the Series 20 I 0 Bond and any unpaid costs, fees and
expenses due and owing to the Owner, to be due and payable immediately; and (2) in
addition to any other remedies set forth in the Master Resolution, this Resolution or the
Series 20 I 0 Bond, either at law or in equity, by suit, action, mandamus or other
proceeding in any court of competent jurisdiction, protect and enforce any and all rights
under the laws of the State, and may enforce and compel the performance of all duties
required by the Series 20 I 0 Bond, the Master Resolution, this Resolution, or by any
applicable statutes to be performed by the Issuer or by any officer thereof. Upon the
occurrence of an Event of Default with respect to the Series 20 I 0 Bond, the Series 20 I 0
Bond shall bear interest at the Default Rate and shall be payable upon demand by the
Owner.
Section 18: Severability. If any provision of this Resolution shall be held or
deemed to be or shall, in fact, be illegal, inoperative or unenforceable in any context, the
same shall not affect any other provision herein or render any other provision (or such
provision in any other context) invalid, inoperative or unenforceable to any extent
whatever.
Section 19: Business Davs. In any case where the due date of interest on or
principal of a Series 20 I 0 Bond is not a Business Day, then payment of such principal or
interest need not be made on such date but may be made on the next succeeding Business
Day, provided that credit for payments made shall not be given until the payment is
actually received by the Owner.
Section 20: Avvlicable Provisions of Law. This Resolution shall be governed by
and construed in accordance with the laws of the State.
Section 21: Rules of Intervretation. Unless expressly indicated otherwise,
references to sections or articles are to be construed as references to sections or articles of
this instrument as originally executed. Use of the words "herein," "hereby," "hereunder,"
"hereof," "hereinbefore," "hereinafter" and other equivalent words refer to this Resolution
and not solely to the particular portion in which any such word is used.
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Section 22: Caotions. The captions and headings in this Resolution are for
convenience only and in no way define, limit or describe the scope or intent of any
provisions or sections of this Resolution.
Section 23: Members of the City Council of the Issuer Exemot from Personal
Liability. No recourse under or upon any obligation, covenant or agreement of this
Resolution or a Series 2010 Bond or for any claim based thereon or otherwise in respect
thereof, shall be had against any member of the City Council of the Issuer, as such, of the
Issuer, past, present or future, either directly or through the Issuer it being expressly
understood (a) that no personal liability whatsoever shall attach to, or is or shall be
incurred by, the members of the City Council of the Issuer, as such, under or by reason of
the obligations, covenants or agreements contained in this Resolution or implied
therefrom, and (b) that any and all such personal liability, either at common law or in
equity or by constitution or statute, of, and any and all such rights and claims against,
every such member of the City Council of the Issuer, as such, are waived and released as
a condition of, and as a consideration for the issuance of the Series 2010 Bond, on the
part of the Issuer.
Section 24: Authorizations. The Mayor and any member of the City Council, the
City Manager, the City Attorney, the City Clerk and such other officials and employees of
the Issuer as may be designated by the Issuer are each designated as agents of the Issuer
in connection with the issuance and delivery of the Series 2010 Bond and are authorized
and empowered, collectively or individually, to take all action and steps and to execute all
instruments, documents, and contracts on behalf of the Issuer (including, but not limited
to, the Series 2010 Bond and the Escrow Deposit Agreement) that are necessary or
desirable in connection with the execution and delivery of the Series 2010 Bond, and
which are specifically authorized or are not inconsistent with the terms and provisions of
this Resolution.
Section 25: Bank Qualified. The Issuer hereby designates the Series 2010 Bond
as a "qualified tax-exempt obligation" within the meaning of Section 265(b)(3) of the Tax
Code. The Issuer and any subordinate entities of the Issuer and any issuer of "tax-
exempt" debt that issues "on behalf of' the Issuer do not reasonably expect during the
calendar year 2009 to issue more than $30,000,000 of "tax-exempt" obligations including
the Series 2010 Bond, exclusive of any private activity bonds as defined in Section 141(a)
of the Tax Code (other than qualified 501(c)(3) bonds as defined in Section 145 of the
Tax Code).
Section 26: Pavment of Certain Fees and Expenses. The Issuer agrees to pay the
following amounts to the following Persons:
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(A) to the Original Owner: (1) an amendment fee of $2,500.00 plus associated
reasonable legal expenses for each amendment of the Series 20 I 0 Bond, this Resolution
or the Master Resolution requiring the consent of the Owner; (2) all other reasonable
costs, fees (which shall be based upon the Original Owner's then current fee schedule, as
applicable) and expenses charged by the Original Owner or its counsel in connection with
the negotiation, execution, delivery, administration or enforcement of the Series 2010
Bonds or its rights under the Master Resolution or this Resolution, or for any other action
by the Original Owner regarding the Series 2010 Bond, this Resolution or the Master
Resolution; and (3) upon the occurrence or implementation of a change in any laws, rules,
guidelines, accounting principles or regulations (or their interpretation, implementation or
administration) which shall increase the cost to the Original Purchaser, or its parent
companies, of owning the Series 2010 Bond or decrease the return to the Original
Purchaser, a fee in an amount as is necessary to compensate it or its parent companies for
such increased costs or decreased return; and
(B) to the Original Owner's counsel, Akerman Senterfitt, a fee of $5,000, due
and payable on the date that the Series 2010 Bond is issued.
Any amounts paid to the Owner of the Series 2010 Bond under this Section 26, or
otherwise paid pursuant to this Resolution shall be deemed to be fully earned when paid
and shall be non-refundable and shall be made free and clear of taxes and other claims
and grossed up for any amounts that the Issuer is required by law to withhold.
Section 27: No Third Party Beneficiaries. Except such other persons as may be
expressly described in this Resolution or in the Series 2010 Bond, nothing in this
Resolution or in the Series 2010 Bond, expressed or implied, is intended or shall be
construed to confer upon any person, other than the Issuer and the Owner, any right,
remedy or claim, legal or equitable, under and by reason of this Resolution, or any
provision thereof, or of the Series 2010 Bond, all provisions thereof being intended to be
and being for the sole and exclusive benefit of the Issuer and the persons who shall from
time to time be the holders.
Section 28: Waiver of Jurv Trial; Venue. The Issuer agrees that any suit, action
or proceeding, whether claim or counterclaim, brought or instituted by the Issuer or the
Owner of the Series 2010 Bond or any successor or assign of such Persons, on or with
respect to this Resolution, the Master Resolution, the Series 2010 Bond or the dealings of
the parties with respect hereto, shall be tried only by a court and not by a jury. THE
ISSUER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR
PROCEEDING. The Issuer hereby irrevocably consents to the personal jurisdiction of
the state and federal courts located in V olusia County, Florida, in any action, or
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proceeding arising out of or in connection with this Resolution, the Master Resolution or
the Series 2010 Bond, any related documents, or the rights and obligations of the parties
hereunder.
Section 29: Governing Law. This Resolution, the Master Resolution and the
Series 2010 Bond and the rights, duties and obligations of the Issuer hereunder and
thereunder shall be governed and construed in accordance with the laws of the State.
Section 30: Competing Covenants. In the event that the Borrower shall, after the
date of issuance of the Series 2010 Bonds, directly or indirectly, enter into or otherwise
consent to or provide any Person who the Owner of any Bonds or Subordinate Debt with
more restrictive covenants and or greater rights and remedies than are provided to the
Original Owner in this Resolution, the Master Resolution or the Series 2010 Bond, the
Issuer shall provide the Original Owner with a copy of each such instrument, agreement
or resolution (or amendment thereto) and such more restrictive covenants and/or greater
rights and remedies shall automatically be deemed to be incorporated into this Resolution
and the Original Owner shall have the benefits of such more restrictive covenants and/or
such greater rights and remedies as if specifically set forth herein. The Issuer shall
promptly enter into an amendment to this Resolution to include such more restrictive
covenants and/or greater rights or remedies (provided that the Original Owner shall
maintain the benefit of such more restrictive covenants and/or greater rights and remedies
even if the Issuer fails to provide such amendment). Notwithstanding the foregoing, this
Section 31 shall not apply to any such instrument, agreement or resolution by and/or
between the Issuer and any Person if the aggregate amount represented by such
instrument, agreement or resolution, together with any other instrument, agreement or
resolution by and/or between the Borrower and such Person, is less than $500,000.00.
Section 31: Effective Date. This Resolution shall be in full force and take effect
immediately upon its enactment.
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ENACTED BY THE CITY COUNCIL OF THE CITY OF
EDGEW A TER, FLORIDA, this 16th day of November, 2009 pursuant to the following
votes: Motion to approve by Councilwoman Bennington with second by Councilman
Cooper:
AYE NAY
Mayor Mike Thomas ABSENT
Councilwoman Debra Rogers ABSENT
Councilwoman Gigi Bennington
x
Councilwoman Harriet Rhodes
x
Councilman Ted Cooper
x
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A TTESTED AND COUNTERSIGNED:
ITY OF EDGEWATER, FLORIDA
'~IQ ,\1 \)Of'l. ~ 0
City Clerk
APPROVED AS TO FORM:
~~~- -
lty Attorney
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EXHIBIT "A"
Commitment Letter
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43699/0001 JBS
EXHIBIT "B"
FORM OF PURCHASER'S CERTIFICATE
This is to certifY that Wachovia Bank, National Association (the "Purchaser") has
not required the City of Edgewater, Florida (the "Issuer") to deliver any offering
document and has conducted its own investigation, to the extent it deems satisfactory or
sufficient, into matters relating to business affairs or conditions (either financial or
otherwise) of the Issuer in connection with the issuance of the $[8,147,125] City of
Edgewater, Florida, Water and Wastewater System Refunding Revenue Series 2010 (the
"Series 2010 Bond") and no inference should be drawn that the Purchaser, in the
acceptance of said Series 2010 Bond, is relying on Broad and Cassel ("Series 2010 Bond
Counsel") or ("City Attorney") as to any such matters other than the
legal opinions rendered by Series 2010 Bond Counsel and by the City Attorney. Any
capitalized undefined terms used herein not otherwise defined shall have the meaning set
forth in Resolution No. 2009-R-31, duly adopted by the Issuer on November 16, 2009, as
amended and supplemented from time to time, and in particular, as supplemented by
Resolution No. 2009-R-32, duly adopted by the Issuer on November 16, 2009
(collectively, the "Resolution").
We acknowledge and understand that the Resolution is not being qualified under
the Trust Indenture Act of 1939, as amended (the "1939 Act"), and is not being registered
in reliance upon the exemption from registration under Section 3(a)(2) of the Securities
Act of 1933, Section 517.051(1), Florida Statutes, and/or Section 517.061(7), Florida
Statutes, and that neither the Issuer, Series 2010 Bond Counsel nor the City Attorney shall
have any obligation to effect any such registration or qualification.
We are not acting as a broker or other intermediary, and are purchasing the Series
2010 Bond as an investment for our own account and not with a present view to a resale
or other distribution to the public.
We are not purchasing the Series 2010 Bond for the direct or indirect promotion of
any scheme or enterprise with the intent of violating or evading any provision of Chapter
517, Florida Statutes.
DATED this _ day of November, 2009.
W ACHOVIA BANK, NA TIONAL
ASSOCIATION
By:
Name: Todd Morley
Title: Senior Vice President
4847-0991-3605.2
4369910001185
EXHIBIT "C"
FORM OF DISCLOSURE LETTER
The undersigned, as purchaser, proposes to negotiate with the City of Edgewater,
Florida (the "Issuer") for the private purchase of its City of Edgewater, Florida, Water and
Wastewater System Refunding Revenue Series 2010 in the principal amount of $8,147,125
(the "Series 2010 Bond"). Prior to the award of the Series 2010 Bond, the following
information is hereby furnished to the Issuer:
1. Set forth is an itemized list of the nature and estimated amounts of expenses to
be incurred for services rendered to us (the "Bank") in connection with the issuance of the
Series 2010 Bond (such fees and expenses to be paid by the Issuer):
Bank Counsel Fees: $5,000 (Akerman Senterfitt)
2. (a) No fee, bonus or other compensation is estimated to be paid by the Bank in
connection with the issuance of the Series 2010 Bond to any person not regularly employed or
retained by the Bank (including any "finder" as defined in Section 218.386(1)(a), Florida
Statutes ).
(b) No person has entered into an understanding with the Bank, or to the
knowledge of the Bank, with the Issuer, for any paid or promised compensation or valuable
consideration, directly or indirectly, expressly or implied, to act solely as an intermediary
between the Issuer and the Bank or to exercise or attempt to exercise any influence to effect
any transaction in the purchase of the Series 2010 Bond.
3. The amount of the underwriting spread expected to be realized by the Bank on
the Series 2010 Bond is $0.
4. The management fee to be charged by the Bank on the Series 2010 Bond is $0.
5. Truth-in-Bonding Statement:
The Series 2010 Bond is being issued primarily to finance the cost of acquiring,
constructing and equipping certain improvements to the Issuer's Water System and Sewer
System, and to pay related costs in connection therewith.
Unless earlier redeemed, the Series 2010 Bond is expected to be repaid by October 1,
2016. At an annual interest rate of _%, total interest paid over the life of the Series 2010
Bond is estimated to equal $
4847-0991-3605.2
43699/0001 JBS
The Series 20 10 Bond will be payable solely from Pledged Funds deposited and
applied as described in Resolution No. 2009-R-31, duly adopted by the Issuer on November
16, 2009, as amended and supplemented from time to time, and in particular, as supplemented
by Resolution No. 2009-R-32, duly adopted by the Issuer on November 16,2009 (collectively,
the "Resolution"). See the Resolution for a definition of Pledged Funds. Issuance of the
Series 2010 Bond is estimated to result in a maximum of approximately $ of
revenues of the Issuer not being available to finance the services of the Issuer in anyone year
during the life of the Series 20 I 0 Bond.
6. The name and address of the Bank is as follows:
Wachovia Bank, National Association
800 Magnolia Ave, 8th Floor
Orlando, Florida 32803
IN WITNESS WHEREOF, the undersigned has executed this Disclosure Letter on behalf of
the Bank this _ day of November 2009.
WACHOVIA BANK,
ASSOCIATION
NATIONAL
By:
Name: Todd Morley
Title: Senior Vice President
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EXHIBIT "D"
FORM OF SERIES 2010 BOND
November _, 2009
$8,147,125
CITY OF EDGEW A TER, FLORIDA
WATER AND W ASTEW A TER SYSTEM REFUNDING REVENUE BOND, SERIES 2010
Maturity Date: October 1,2016
KNOW ALL MEN BY THESE PRESENTS that the City of Edgewater, Florida (the
"Issuer"), a municipal corporation created and existing pursuant to the Constitution and the
laws of the State of Florida, for value received, promises to pay from the sources hereinafter
provided, to the order of Wachovia Bank, National Association, or registered assigns
(hereinafter, the "Owner"), the principal sum of not to exceed $8,147,125 on the dates as
hereinafter described, together with interest on the principal balance at the annual interest rate
of % (the "Interest Rate").
Principal of and interest on this Series 2010 Bond is payable in lawful money of the
United States of America at such place as the Owner may designate to the Issuer in writing.
Interest on this Series 2010 Bond shall be paid semiannually on each October 1 and
April 1, commencing on April 1, 2010 based upon actual days elapsed in a 360 day year
consisting of twelve 30 day months. Principal on this Series 2010 Bond shall be payable to
the Owner annually on October 1 and on the Maturity Date, commencing on October 1, 2010.
All principal and interest payments shall be made in accordance with the amortization
schedule attached hereto as Exhibit "A".
The entire unpaid principal balance, together with all accrued and unpaid interest
hereon, shall be due and payable in full on the Maturity Date.
Prepayment
Upon at least 5 Business Days' notice in writing, the Series 2010 Bond shall be subject
to prepayment at the option of the Issuer in whole or in part on October 1, 2013 or thereafter:
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43699/000 I 185
(A) in whole or in part on October 1, 2013 or thereafter on any Interest Payment
Date at a price equal to the principal amount thereof to be prepaid, plus accrued interest to the
date fixed for prepayment, without penalty; and
(B) on any other date other than the dates specified in (A) above (an "Unscheduled
Prepayment Date") at a price equal to the principal amount thereof to be prepaid, plus accrued
interest to the date fixed for prepayment, plus any breakage fee that may be due any owing to
the Owner of the Series 2010 Bond on the Unscheduled Prepayment Date as determined in
accordance with the tenus of the Commitment.
Other Provisions Generally Applicable
If any date for the payment of principal and interest hereon shall fall on a day which is
not a Business Day, the payment due on such date shall be due on the next succeeding day
which is a Business Day, but the Issuer shall not receive credit for the payment until it is
actually received by the Owner.
All payments by the Issuer pursuant to this Series 2010 Bond shall apply first to
accrued interest, then to other charges due the Owner, and the balance thereof shall apply to
principal. The authorized denomination of the Series 2010 Bond is the lesser of $100,000 or
the amount outstanding.
THIS SERIES 2010 BOND DOES NOT CONSTITUTE A GENERAL
INDEBTEDNESS OF THE ISSUER WITHIN THE MEANING OF ANY
CONSTITUTIONAL, STATUTORY OR CHARTER PROVISION OR LIMITATION, AND
IT IS EXPRESSLY AGREED BY THE HOLDER OF THIS SERIES 2010 BOND THAT
SUCH SERIES 2010 BONDHOLDER SHALL NEVER HAVE THE RIGHT TO REQUIRE
OR COMPEL THE EXERCISE OF THE AD VALOREM TAXING POWER OF THE
ISSUER OR TAXATION OF ANY REAL OR PERSONAL PROPERTY THEREIN FOR
THE PAYMENT OF THE PRINCIPAL OF AND INTEREST ON THIS SERIES 2010
BOND OR THE MAKING OF ANY OTHER PAYMENTS PROVIDED FOR IN THE
RESOLUTION.
This Series 2010 Bond is issued pursuant to Article VIII, Section 2 of the Constitution
of the State of Florida, Chapter 166, Florida Statutes, the Charter of the Issuer and Resolution
No. 2009-R-31, duly adopted by the. Issuer on November 16, 2009, as amended and
supplemented from time to time, and in particular, as supplemented by Resolution No. 2009-
R-32, adopted by the Issuer on November 16, 2009 (herein collectively referred to as the
"Resolution"), and is subject to all the terms and conditions of the Resolution. All terms,
conditions and provisions of the Resolution including, without limitation, remedies in the
Event of Default (as such term is defined in the Resolution) are by this reference thereto
incorporated herein as a part of this Series 2010 Bond. Payment of the Series 2010 Bond is
4847-0991-3605.2
43699/0001 JBS
secured by Pledged Funds. Terms used herein in capitalized form and not otherwise defined
herein shall have the meanings ascribed thereto in the Resolution.
This Series 2010 Bond may be exchanged or transferred by the Owner hereof but only
upon the registration books maintained by the Issuer and in the manner provided in the
Resolution.
It is hereby certified, recited and declared that all acts, conditions and prerequisites
required to exist, happen and be performed precedent to and in the execution, delivery and the
issuance of this Series 2010 Bond do exist, have happened and have been performed in due
time, form and manner as required by law, and that the issuance of this Series 2010 Bond is in
full compliance with and does not exceed or violate any constitutional or statutory limitation.
If (i) the interest on this Series 2010 Bond becomes includable in the gross income of
the Owner for Federal income tax purposes (an "Event of Taxability") because of any
amendments to existing law which would adversely affect the Holder's after-tax yield, or (ii)
the Series 2010 Bond shall not be "a qualified tax exempt obligation" as defined in Section
265(b )(3) of the Internal Revenue Service Tax Code of 1986, as amended (the "Tax Code"),
then the Owner shall have the right to adjust the interest rate with the same after-tax yield as if
the events in (i) or (ii) had not occurred. This adjustment shall survive payment of this Series
20 I 0 Bond until such time as the federal statute of limitations under which the interest on this
Series 20 I 0 Bond could be declared taxable under the Tax Code shall have expired.
For so long as this Series 20 I 0 Bond is owned by the Owner, the interest rate set forth
above assumes a maximum corporate tax rate of 35%. In the event of a change in the
maximum corporate tax rate, so long as this Series 2010 Bond is owned by the Owner, or its
successors and assigns, the Owner shall have the right to adjust such interest rate in order to
maintain the same after-tax yield.
The interest rate on the Series 20 I 0 Bond may also subject to adjustment in accordance
with the terms of the Resolution.
[Remainder of Page Intentionally Left Blank]
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EXHIBIT "E"
FORM OF ESCROW DEPOSIT AGREEMENT
[TO COME]
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