93-R-10RESOLUTION NO. 93-R-10
A RESOLUTION PROVIDING FOR THE REFUNDING OF A
PORTION OF THE OUTSTANDING WATER AND SEWER
REVENUE BONDS, SERIES 1991 OF THE CITY OF
EDGEWATER, FLORIDA; PROVIDING FOR THE ISSUANCE OF
$12,460,000 WATER AND SEWER REVENUE REFUNDING
BONDS, SERIES 1993 FOR SUCH PURPOSE; PROVIDING FOR
THE PAYMENT THEREOF; PROVIDING FOR THE RIGHTS OF
THE HOLDERS OF THE BONDS; MAKING CERTAIN OTHER
COVENANTS AND AGREEMENTS IN CONNECTION
THEREWITH: PROVIDING AN EFFECTIVE DATE.
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF EDGEWATER,
FLORIDA (the "Issuer"):
SECTION 1. AUTHORITY FOR THIS RESOLUTION. This resolution is
adopted pursuant to the provisions of Chapter 166. Part 11, Florida Statutes, Chapter
180, Florida Statutes, and other applicable provisions of law (hereinafter collectively
referred to as the "Act") and Resolution No. 91-R-42, adopted by the Council of the
City of Edgewater, Florida on July 15, 1991, as supplemented (the "Original
Resolution').
SECTION 2. DEFINITIONS. All terms defined herein shall have the
following meanings unless the text otherwise expressly requires. Words importing
singular number shall include the plural number in each case and vice versa, and
words importing persons shall include firms and corporations:
111993 Bonds" shall mean the Water and Sewer Revenue Refunding Bonds,
Series 1993, herein authorized to be issued.
"Accreted Value" shall mean, as of any date of computation with respect to any
Capital Appreciation Bond, an amount equal to the principal amount of such Capital
Appreciation Bond (the principal amount at its initial offering) plus the interest
accrued on such Capital Appreciation Bond from the date of delivery to the original
purchasers thereof to the Interest Payment Date next preceding the date of
computation or the date of computation if an Interest Payment Date, such interest to
accrue at a rate not exceeding the legal rate, compounded semi-annually, plus. with
respect to matters related to the payment upon redemption or acceleration of the
Capital Appreciation Bonds, if such date of computation shall not be an Interest
Payment Date, a portion of the difference between the Accreted Value as of the
immediately preceding Interest Payment Date and the Accreted Value as of the
immediately succeeding Interest Payment Date, calculated based on the assumption
that Accreted Value accrues during any semi-annual period in equal daily amounts on
the basis of a 360 day year.
"Act" means the laws described in Section 1 hereof.
"Additional Parity Bonds" shall mean additional bonds issued by the Issuer in
compliance with the terms, conditions and limitations contained herein and in the
Original Resolution which have an equal lien on the Pledged Funds with the 1993
Bonds and the Parity Bonds.
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"Allowable Impact Fees" shall mean, in any period and for each series of
Bonds, an amount of Impact Fees not in excess of the Impact Fee Percentage times the
aggregate Bond Service Requirements for such series of Bonds, less the amount of
Allowable Impact Fees actually used in all prior periods to pay Bond Service
Requirements on such series of Bonds and actually deposited Into the Reserve
Account and previously applied to reduce the Allowable Impact Fees for such series of
Bonds; provided, that the Allowable Impact Fees in any period for each series of Bonds
shall not exceed the Bond Service Requirements for such series maturing or redeemed
in such period and in all prior periods.
"Amortization Installment", with respect to any Term Bonds of a series, shall
mean an amount or amounts so designated which is or are established for the Term
Bonds of such series.
"Authorized Investments" shall mean any of the following if and to the extent
the same are at the time legal for investment of municipal funds:
(1) Direct obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by. the United States of America, including
obligations issued or held in book entry form on the books of the Department of the
Treasury of the United States;
(2) Bonds, debentures, notes or other evidences of indebtedness
issued, or the principal of and interest on which are unconditionally guaranteed, by
any of the following federal agencies and provided such obligations are backed by the
full faith and credit of the United States of America (stripped securities are only
permitted if they have been stripped by the agency itself:
1. U.S. Export -Import Bank; Direct obligations or fully
guaranteed certificates of beneficial ownership
2. Farmers Home Administration (FHA): Certificates of
beneficial ownership
3. Federal Financing Bank
4. Federal Housing Administration Debentures (FHA)
5. General Services Administration: Participation certificates
6. Government National Mortgage Association "GNMA'):
GNMA - guaranteed mortgage -backed bonds: GNMA - guaranteed pass -through
obligations
7. U.S. Maritime Administration: Guaranteed Title HI
financing
8. U.S. Department of Housing and Urban Development
(HUD):
Project Notes
Local Authority Bonds
New Community Debentures - U.S. government guaranteed
debentures - U.S. Public Housing Notes and Bonds - U.S. government guaranteed
public housing notes and bonds;
(3) Bonds, debentures, notes or other evidence of indebtedness issued
or guaranteed by any of the following non -full faith and credit U.S. government
agencies (stripped securities are only permitted if they have been stripped by the
agency itself):
1. Federal Home Loan Bank System; Senior debt obligation
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2. Federal Home Loan Mortgage Corporation (FHLMC or
"Freddie Mac'): Participation Certificates; Senior debt obligations
3. Federal National Mortgage Association (FNHA or "Fannie
Mae'): Mortgage -backed securities and senior debt obligations
4. Student Loan Marketing Association (SLMA or "Sallie Mae'):
Senior debt obligations
5. Resolution Funding Corp. (REFCORP) obligations
6. Farm Credit System: consolidated systemwide bonds and
notes.
(4) Money market funds registered under the Federal Investment
Company Act of 1940, whose shares are registered under the Federal Securities Act of
1933, and having a rating by S&P of AAAm-G; AAAm: or AAm:
(5) Bank time deposits evidenced by certificates of deposit, issued by
any commercial bank, savings and loan association, or mutual savings bank insured
by the Federal Deposit Insurance Corporation, or fully and continuously secured by
obligations described in paragraphs (1) or (2) of this definition, and provided the
collateral is held by a third party and the Registered Owners of the Bonds have a
perfected first security interest in the collateral;
(6) Investment agreement, including GIC's acceptable to the Insurer;
(7) Commercial paper rated, at the time of purchase, "Prime - V by
Moody's or'A-1" or better by S&P;
(8) Bonds issued by any state of municipality which are rated by
Moody's or S&P in one of the two highest rating categories assigned by such agencies;
(9) Federal Funds or bankers acceptances with a maximum term of
one year of any bank which has an unsecured and unguaranteed obligation rating of
"Prime - V or "AW or better by Moody s and "A-1" or "A" or better by S&P.
(10) Repurchase agreements which provide for the transfer of
securities from a dealer bank or securities firm (seller/borrower) to the Issuer
(buyer/lender), and the transfer of cash from the Issuer to the dealer bank or
securities firm with an agreement that the dealer bank or securities firm will repay the
cash plus a yield to the Issuer in exchange for the securities at a specified date.
Repurchase agreements must satisfy the following criteria or be approved by the
Issuer:
(a) The agreement must be between the Issuer and a dealer
bank or securities firm described below;
(i) Primary dealers on the Federal Reserve Reporting
dealer list which are rated A or better by Standard & Poor's Corporation and Moody's
Investor Services, or
(if) Banks rated "A" or above by Standard & Poor's
Corporation and Moody's Investor Services.
(b) The written contract must include the following:
(i) Securities which are acceptance for transfer are:
(1) Direct U.S. governments, or
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(2) Federal agencies backed by the full faith and
credit of the U.S. government (and FNMA & FHLMC)
(it) The term of the agreement may be up to 30 days
(W) The collateral must be delivered to the Issuer before
or simultaneously with payment (perfection by possession of certificated securities).
(iv) The securities must be valued weekly, marked -to
market at current market price plus accrued interest. The value of collateral must be
equal to 104% of the amount of cash transferred by the Issuer to the dealer bank or
security firm under the agreement plus accrued interest. If the value of securities held
as collateral drops below 104% of the value of the cash transferred by municipality,
then additional cash and/or acceptable securities must be transferred. If, however,
the securities used as collateral are FNMA or FHLMC. then the value of the collateral
must equal 105%.
(c) A legal opinion must be delivered to the Issuer to the effect
that the repurchase agreement meets guidelines under state law for legal investment
of public funds.
(11) Investments under the "Investment of Local Government Surplus
Funds Act", being Part IV, Chapter 218, Florida Statutes (1991).
'Bond Service Requirement' as of any date of calculation and with respect to
any period, as applied to the Bonds of any series, shall mean the sum of:
(1) The amount required to pay the interest becoming due on the
Bonds of such series during such period except to the extent that such interest shall
have been provided by payments into the Sinking Fund out of Bond proceeds;
(2) The amount required to pay the principal of Serial Bonds of such
series maturing in such period; and
(3) The Amortization Installment for the Term Bonds of such series for
such period. In computing the Bond Service Requirement for any period for Bonds of
any series, the Issuer shall assume that a principal amount of Term Bonds and the
Accreted Value of the Capital Appreciation Term Bonds for such period will be retired
by purchase or redemption in such period and that on that stated maturity date, only
the remaining Amortization Installment applicable to Term Bonds and Capital
Appreciation Term Bonds in such year shall be deemed to mature in such year. The
Bond Service Requirement for any Bond Year shall be adjusted to reflect any amounts
on deposit in the Sinking Fund in excess of current requirements (including
deficiencies in prior requirements) and available for the payment of the Bond Service
Requirement in such Bond Year.
"Bond Year" shall mean the annual period ending on a principal maturity date.
"Bonds" shall mean the 1993 Bonds, the outstanding Parity Bonds, if any, and
all Additional Parity Bonds hereafter issued by the Issuer.
"Capital Appreciation Bonds" shall mean Bonds the interest on which is
payable only at maturity or redemption, as determined by subsequent resolution.
"Capital Appreciation Term Bonds" shall mean Capital Appreciation Bonds of
a series all of which shall be stated to mature on one date, which shall be subject to
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retirement by operation of the Bond Amortization Account, and the interest on which
is payable only at maturity or redemption.
"Consulting Engineers" shall mean Dyer, Riddle. Mills and Precourt, Inc.,
Orlando. Florida, or such other qualified and recognized consulting engineers, having
a favorable repute for skill and experience as consulting engineers with respect to
facilities similar to the System, at the time retained by the Issuer to perform the acts
and carry out the duties as herein provided for such Consulting Engineers. The
functions of the Consulting Engineers hereunder may be divided between or among
consulting engineers.
"Cost of Operation and Maintenance" of the System shall mean the current
expenses, paid or accrued, of operation, maintenance and repair of the System,
calculated in accordance with generally accepted accounting principles, but shall not
include any (i) reserves or renewals and replacements, (ii) extraordinary repairs, (III)
any allowance for depreciation or amortization, (iv) reimbursement to the City's
general or other funds for the cost of services provided for the benefit of the System, (v)
interest on any debt payable from Net Revenues, or (vi) expenses actually funded from
sources other than Gross Revenues.
"Escrow Deposit Agreement" shall mean that certain Escrow Deposit
Agreement for the Refunded Bonds to be entered into by and between the Issuer and
the Escrow Agent, designated herein, in substantially the form attached hereto as
Exhibit "A".
"Federal Securities" shall mean:
(1) U.S. Treasury Certificates and Bonds (including State and Local
Government Series -- 'SLGS").
(2) Direct obligations of the Treasury which have been stripped by the
Treasury itself, CATS, TIGRS and similar securities.
(3) Resolution Funding Corp. (REFCORP: Only the interest
component of REFCORP strips which have been stripped by request to the Federal
Reserve Bank of New York in book entry form are acceptable.
(4) Pre -refunded municipal bonds rated "Aaa" by Moody's or "AAA" by
S&P. If however, the issue is only rated by S&P (i.e., there is no Moody's rating), then
the pre -refunded bonds must have been pre -refunded with cash, direct U.S. or U.S.
guaranteed obligations, or AAA rated pre -refunded municipals to satisfy this condition.
(5) Obligations issued by the following agencies which are backed by
the full faith and credit of the U.S.:
A- U.S. Export -Import Bank (Eximbank)
Direct obligations or fully guaranteed certificates of
beneficial ownership.
B. Farmers Home Administration (FHA)
Certificates of beneficial ownership
C. Federal Financing Bank
D. Federal Housing Administration Debentures (FEW
E. General Services Administration
Participation certificates
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F. U.S. Maritime Administration
Guaranteed Title M financing
G. U.S. Department of Housing and Urban Development (HUD)
Project Notes
Local Authority Bonds
New Communities Debentures - U.S. government
guaranteed debentures - U.S. Public Housing Notes and Bonds - U.S. government
guaranteed public housing notes and bonds
"Gross Revenues" shall mean all income or earnings derived by the Issuer from
the operation of the System, determined in accordance with generally accepted
accounting principles, excluding (i) Impact Fees, (ii) interest earnings on the
Construction Fund and the Improvement Fund and (ill) transfers from the Revenue
Fund into the Rate Stabilization Fund, and including (x) connection fees and charges,
(y) transfers from the Rate Stabilization Fund to the Revenue Fund and (z) investment
earnings on all funds and accounts established hereunder except the Construction
Fund and the Improvement Fund.
"Impact Fee Percentage" shall mean, for each series of Bonds that percentage
obtained by dividing the New User Facilities Portion for such series of Bonds by the
original principal amount of such series of Bonds.
"Impact Fees" shall mean the charges levied upon and collected from new
users of the System by the Issuer to the extent that such fees are legally available
solely for the construction and acquisition of New User Facilities or the financing
thereof and administrative fees.
"Improvement Fund" shall mean the Water and Sewer Fund created by the
Issuer for deposit of impact Fees.
"Interest Payment Date" shall mean, as to the Capital Appreciation Bonds, the
semi-annual dates fixed by subsequent resolution, on which accreted interest is
computed to compound, and, as to the other Bonds, on which interest is payable.
"Insurer" shall mean Municipal Bond Investors Assurance Corporation, its
successors and assigns.
"Issuer" shall mean the City of Edgewater, Florida.
"Maturity Amount" means the amount payable upon the stated maturity of a
Capital Appreciation Bond equal to the principal amount thereof plus all accrued
interest thereon from the date of issue to the date of maturity.
"Masimum Bond Service Requirement" for all Bonds or any series of Bonds
shall mean, as of any particular date of calculation and with respect to any period, the
Bond Service Requirement as contemplated for the then current or any future period
in which such sum is the greatest.
'Net Revenues" of the System shall mean the Gross Revenues after deduction
of the Cost of Operation and Maintenance.
"New User Facilities" shall mean improvements, extensions and additions to
the System, together with all lands or interests therein, including plants, buildings,
machinery, franchises, pipes, mains, fixtures, equipment and all property, real or
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personal, tangible or intangible, heretofore or hereafter constructed or acquired in
order to meet the increased demand upon the System, whether actual or anticipated,
created by new users connecting to the System.
"New User Facilities Portion" shall mean, for each series of Bonds, that
portion of such Bonds issued hereunder, the proceeds of which are used to finance or
to hereafter refinance New User Facilities.
"Original Resolution" shall mean Resolution No. 91-R-42 adopted by the
Council of the Issuer on July 15, 1991, as supplemented.
"Outstanding" or "outstanding" shall mean Bonds issued hereunder except (i)
those which have been paid, or for which provision for payment has been made (under
Section 18). and (ll) those in exchange for which new Bonds have been issued under
Section 9, 10 or 11 hereof.
"Owners" shall mean the owners of the Bonds as shown on the registration
books of the Registrar.
"Parity Bonds" shall mean that portion of the Issuer's outstanding Water and
Sewer Revenue Bonds, Series 1991, not designated to be Refunded Bonds.
"Paying Agent" shall mean the Clerk of the Issuer or such other paying agent
as is appointed by the Issuer from time to time to serve as paying agent hereunder.
"Pledged Funds" shall mean the Net Revenues, the Allowable Impact Fees, the
income on investment of any funds held in the Construction Fund under the Original
Resolution and, until applied or deposited in escrow as herein provided, the proceeds
of the Bonds.
"Policy" shall mean the municipal bond insurance policy issued by the Insurer,
insuring timely payment of the principal of and interest on the 1993 Bonds.
"Rate Consultant" shall mean an engineer or other consultant having
recognized expertise in public utility finance, including projections of utility revenues
and development of utility rate studies.
"Refunded Bonds" shall mean that portion of the Issuer's outstanding Water
and Sewer Revenue Bonds, Series 1991. authorized pursuant to the Original
Resolution as shall be designated to be Refunded Bonds at the time of sale of the 1993
Bonds.
"Registrar" shall mean the Clerk of the Issuer or such other registrar as shall
be appointed from time to time by resolution of the Issuer.
"Reserve Requirement" shall mean the Maximum Bond Service Requirement
coming due in any future Bond Year.
"Resolution" shall mean this resolution of the Issuer, as hereafter amended
and supplemented from time to time in accordance with the provisions hereof.
"Serial Bonds" shall mean the Bonds of a series which shall be stated to
mature in annual installments.
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"System" shall mean the Issuer's presently existing water and sewer system,
together with all additions, extensions and improvements thereto heretofore or
hereafter constructed or acquired.
"Tax Code" shall mean Section 103 and Part IV of Subchapter B of Chapter I of
the Internal Revenue Code of 1986. as amended, or any successor law, and any valid
and applicable rules and regulations promulgated thereunder.
"Perm Bonds" shall mean the Bonds of a series all of which shall be stated to
mature on one date and which shall be subject to retirement by operation of the Bond
Amortization Account.
SECTION 3, FINDINGS. It is hereby ascertained, determined and
declared that:
A. The Issuer now owns, operates and maintains the System and
derives Gross Revenues from fees, rates, rentals and other charges made and collected
for the products, services and facilities of the System.
B. The Net Revenues are not now pledged or encumbered in any
manner, except for the payment of (1) the Refunded Bonds now outstanding, which
hen and pledge will be defeased upon issuance of the 1993 Bonds pursuant to this
Resolution and the refunding of the Refunded Bonds; (2) of the Parity Bonds; and (3)
the pledge of and lien on Gross Revenues securing the Issuer's obligations under State
Revolving Fund Loan Agreements with the State of Florida, which liens and pledges
are junior and subordinate to the liens and pledges securing payment of the Bonds
and the Parity Bonds.
C. It is necessary and desirable to refund the Refunded Bonds in
order to achieve a reduction in the Bond Service Requirements to repay such
obligations. The amount of 1993 Bonds issued will not exceed the estimated amount
needed to refund the Refunded Bonds, which amount shall be obtained from the
proceeds derived from the sale of the 1993 Bonds and, if necessary, from certain other
funds available to the Issuer, An amount sufficient to effect the refunding of the
Refunded Bonds will be deposited in an irrevocable escrow account established for the
holders of the Refunded Bonds, and invested in Federal Securities pursuant to the
Escrow Deposit Agreement. The principal amounts of and interest earnings from such
Federal Securities will be sufficient to make timely payments of all presently
outstanding principal, interest, and redemption premiums with respect to the
Refunded Bonds.
D. The principal of and interest on the 1993 Bonds and all required
sinking fund, reserve and other payments shall be payable solely from the Pledged
Funds as provided herein. The Issuer shall never be required to levy ad valorem taxes
on any property therein to pay the principal of and interest on the 1993 Bonds or to
make any of the required sinking fund, reserve or other payments and such Bonds
shall not constitute a lien upon any property of, or in, the Issuer. The 1993 Bonds
shall not constitute a general indebtedness of the Issuer within the meaning of any
constitutional or statutory provision.
E. It is estimated that the Pledged Funds will be sufficient in each
year to pay all maturing principal of and interest on the 1993 Bonds and the Parity
Bonds, if any. In the event that any Parity Bonds remain outstanding, it Is estimated
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that the requirements of Section 15S(3), (4) and (5) of the Original Resolution will be
met, as to the 1993 Bonds.
SECTION 4. AUTHORIZATION OF PROJECT AND
REFUNDING. There is hereby authorized the refunding of the Refunded Bonds.
SECTION 5. RESOLUTION TO CONSTITUTE CONTRACT. In
consideration of the acceptance of the Bonds authorized to be issued hereunder by
those who shall own the same from time to time, this Resolution shall be deemed to be
and shall constitute a contract between the Issuer and such Owners. The covenants
and agreements herein and therein set forth to be performed by the Issuer shall be for
the equal benefit, protection and security of the legal Owners of any and all of the
Bonds all of which shall be of equal rank and without preference, priority or
distinction of any of the Bonds over any other thereof, except as expressly provided
therein and herein.
SECTION 6. AUTHORIZATION OF 1993 BONDS. Subject and
pursuant to the provisions hereof, bonds of the Issuer to be known as "Water and
Sewer Revenue Refunding Bonds, Series 1993", herein sometimes referred to as "1993
Bonds", are authorized to be issued in the aggregate principal amount of Twelve
N iWon Four Hundred Sixty Thousand Dollars ($12,460,000).
SECTION 7. DESCRIPTION OF 1993 BONDS. The 1993 Bonds shall
be in such denominations, and shall be dated, shall bear interest, payable on such
dates, at such rate or rates not exceeding the maximum rate taxed by the Act or other
applicable law, and shall mature on such date and in such years and amounts all as
shall be determined by resolution of the Issuer adopted prior to the delivery thereof.
The 1993 Bonds shall be issued in fully registered form, without coupons: shall
be payable with respect to both principal and interest upon presentation and
surrender thereof on the date fixed for maturity or redemption thereof at the office of
the Bond Registrar in lawful money of the United States of America: and shall bear
interest from such date, but not earlier than the date of the 1993 Bonds, payable at
such times, all as is fixed by subsequent resolution of the Issuer.
Interest on the 1993 Bonds which is payable prior to maturity or redemption
shall be paid by check or draft mailed to the Owners, at their addresses as they appear
on the Bond Register, at the close of business on the 15th day of the month (whether
or not a business day) next preceding the Interest Payment Date for the 1993 Bonds
(the 'Record Date"). irrespective of any transfer of the 1993 Bonds subsequent to such
Record Date and prior to such Interest Payment Date, unless the Issuer shall be in
default in the payment of interest due on such Interest Payment Date. In the event of
any such default, such defaulted interest shall be payable to the Owners at the close
of business on a special record date for the payment of defaulted interest as
established by notice mailed to the Owners in whose names such 1993 Bonds are
registered at the close of business on the fifth (5th) day preceding the date of mailing.
If the date for payment of the principal of, premium, if any, or interest on the
1993 Bonds shall be a Saturday, Sunday, legal holiday or a day on which the banking
institutions in the city where the principal office of the Paying Agent is located are
authorized by law or executive order to close, then the date for such payment shall be
the next succeeding day which is not a Saturday, Sunday or legal holiday or a day on
which such banking institutions are authorized to close, and payment on such date
shall have the same force and effect as if made on the nominal date of payment.
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The 1993 Bonds (except Capital Appreciation Bonds) may be issued or
exchanged for 1993 Bonds in coupon form, payable to bearer, in such form and with
such attributes as the Issuer may provide by supplemental resolutions, upon receipt
of an opinion from a nationally recognized bond counsel that such issuance or
exchange will not cause interest on the 1993 Bonds to be includable in gross income
of the Owner for federal income tax purposes.
SECTION S. EXECUTION OF BONDS. The Bonds shall be executed in
the name of the Issuer by the Mayor and attested and countersigned by the City Clerk
of the Issuer, and the corporate seal of the Issuer or a facsimile thereof shall be affixed
thereto or reproduced thereon. The facsimile signatures of such officers shall be
imprinted or reproduced on the Bonds. The Certificate of Authentication of the Bond
Registrar, hereinafter described, shall appear on the Bonds, and no Bonds shall be
valid or obligatory for any purpose or be entitled to any security or benefit under this
Resolution unless such certificate shall have been duly executed on such Bond. The
authorized signature for the Bond Registrar shall at all times be a manual signature.
In case any officer whose signature shall appear on any Bonds shall cease to be such
officer before the delivery of such Bonds, such signature or facsimile shall nevertheless
be valid and sufficient for all purposes the same as If he had remained in office until
such delivery. Any Bond may be signed and sealed on behalf of the Issuer by such
person who at the actual time of the execution of such Bonds shall hold the proper
office with the Issuer, although at the date of delivery of such Bonds such person may
not have held such office or may not have been so authorized.
If any series of the Bonds are validated, the validation certificate on Bonds shall
be executed with the manual or facsimile signature of the Mayor. The Issuer may
adopt and use for such purposes the facsimile signature of any person who shall have
held such office at any time on or after the date of adoption of this Resolution.
notwithstanding that he may have ceased to be such officer at the time the Bonds are
actually delivered.
SECTION 9. NEGOTIABILITY AND
A. NEGOTIABILITY. The Bonds shall be and shall have all of the
qualities and incidents of negotiable instruments under the Uniform Commercial
Code -Investment Securities of the State of Florida, and each successive Owner, in
accepting any of the Bonds shall be conclusively deemed to have agreed that such
Bonds shall be and have all of the qualities and incidents of negotiable instruments
under the Uniform Commercial Code -Investment Securities of the State of Florida.
B. REGISTRATION AND TRANSFER. There shall be a Registrar for
the Bonds which shall be the City Clerk or a bank or trust company located within or
without the State of Florida. The Registrar shall maintain the registration books of the
Issuer (the 'Bond Register") and be responsible for the transfer and exchange of the
Bonds. The Issuer shall, prior to the proposed date of delivery of any Bonds, by
resolution designate the Registrar and Paying Agent. The Registrar shall maintain the
Bond Register for the registration of the transfer and exchange of the Bonds in
compliance with an agreement to be executed between the Issuer and such Registrar.
The Bonds may be transferred upon the Bond Register, upon delivery to the
Registrar, accompanied by a written instrument or instruments of transfer or
authorization for exchange, in form and with guaranty of signature satisfactory to the
Issuer and the Registrar duly executed by the Owner or by his duly authorized
LK-06/02/93-3368-Authaes -10-
attorney, together with written instructions as to the details for the transfer of such
Bonds, along with the social security or federal employer identification number of such
transferee and, if such transferee ds a trust, the name and social security or federal
employer identification numbers of the settlor and beneficiaries of the trust, the date of
the trust and the name of the trustee. No transfer of any Bond shall be effective
against the Issuer, Registrar or Paying Agent until entered on the Bond Register
maintained by the Registrar.
In all cases of the transfer of the Bonds, the Registrar shall enter the transfer of
ownership on the Bond Register and shall authenticate and deliver in the name of the
transferee or transferees a new fully registered Bond or Bonds of authorized
denominations of the same maturity and interest rate for the aggregate principal
amount which the Owner is entitled to receive at the earliest practicable time in
accordance with the provisions of this Resolution. Any Bond or Bonds shall be
exchangeable for a Bond or Bonds of the same maturity and interest rate, in any
authorized denomination, but in a principal amount equal to the unpaid principal
amount of the Bond or Bonds presented for exchange. Bonds to be exchanged shall be
surrendered at the principal office of the Registrar, and the Registrar shall deliver in
exchange therefor the Bond or Bonds which the Owner making the exchange shall be
entitled to receive. The Issuer or the Registrar may charge the Owner of such Bond for
every such transfer or exchange, an amount sufficient to reimburse them for any tax,
fee, or other governmental charge required to be paid with respect to such transfer or
exchange, and may require that such charge be paid before any such new Bond shall
be delivered.
All 1993 Bonds presented for transfer, exchange, redemption or payment (if so
required by the Bond 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 Bond Registrar, duly executed by the registered owner or
by his duly authorized attorney in fact or legal representative.
All 1993 Bonds delivered upon transfer or exchange shall be dated and shall
bear interest from such date that neither gain nor loss in interest shall result from the
transfer or exchange. New 1993 Bonds delivered upon any transfer or exchange shall
be valid obligations of the Issuer, evidencing the same debt as the 1993 Bond
surrendered, shall be secured by this resolution and shall be entitled to all of the
security and the benefits hereof to the same extent as the 1993 Bonds surrendered.
The Issuer and the Bond Registrar may treat the registered owner of any 1993
Bond as the absolute owner thereof for all purposes, whether or not such 1993 Bonds
shall be overdue, and shall not be bound by any notice to the contrary.
Notwithstanding the foregoing provisions of this section, the Issuer reserves the
right, on or prior to the delivery of the 1993 Bonds to amend or modify the foregoing
provisions relating to the registration of the 1993 Bonds by resolution or ordinance in
order to comply with all applicable laws, rules, and regulations of the United States
and/or the State of Florida relating thereto.
Whenever any 1993 Bonds shall be delivered to the Bond Registrar for
cancellation, upon payment of the principal amount thereof, or for replacement,
transfer or exchange, such 1993 Bonds shall be cancelled and, upon request of the
Issuer, destroyed by the Bond Registrar. Counterparts of the certificate of destruction
evidencing any such destruction shall be furnished to the Issuer.
LK-06/02/93-3368-AuthRes .11-
SECTION 10. BONDS MUTILATED, DESTROYED, STOLEN OR
LOST. In case any Bond shall become mutilated, or be destroyed, stolen or lost, the
Issuer shall issue and deliver a new Bond of like tenor as the Bond so mutilated,
destroyed, stolen or lost, in exchange and substitution for such mutilated Bond, upon
surrender and cancellation of such mutilated Bond or in lieu of and substitution for
the Bond destroyed, stolen or lost, and upon the Owner furnishing the Issuer proof of
his ownership thereof and satisfactory indemnity and complying with such other
reasonable regulations and conditions as the Issuer may prescribe and paying such
expenses as the Issuer may incur. All Bonds so surrendered shall be cancelled by the
Registrar. If any such Bonds shall have matured or be about to mature, instead of
issuing a substitute Bond. the Issuer may pay the same, upon being indemnified as
aforesaid, and if such Bond be lost, stolen or destroyed, without surrender thereof.
Any such duplicate Bonds issued pursuant to this section shall constitute
original, additional contractual obligations whether or not the lost, stolen or destroyed
Bonds be at any time found by anyone, and such duplicate Bonds shall be entitled to
equal and proportionate benefits and rights as to lien on and source and security for
payment from the funds, as hereinafter pledged, to the extent as all other Bonds
issued hereunder.
SECTION 11. PROVISIONS FOR REDEMPTION.
A. The Bonds of each series shall be subject to mandatory
redemption by operation of the Bond Amortization Account, or at the option of the
Issuer, or upon such other terms, as provided by subsequent resolution of the Issuer
adopted at or prior to the sale of the such series of Bonds.
B. Bonds in denominations greater than a minimum authorized
denomination (or a minimum authorized Maturity Amount in th@ case of Capital
Appreciation Bonds) shall be deemed to be an equivalent number of Bonds in the
denomination of a minimum authorized denomination or Maturity Amount. If a Bond
is of a denomination or Maturity Amount larger than a minimum authorized
denomination or Maturity Amount, a portion of such Bond may be redeemed, in the
amount of such minimum authorized denomination or Maturity Amount or integral
multiples thereof.
C. Notice of such redemption, identifying the Bonds or portions
thereof called for redemption (i) shall be filed with the Paying Agent and Registrar; and
(it) shall be mailed by the Paying Agent, first-class mall, postage prepaid, to all Owners
of the Bonds to be redeemed not more than forty-five (45) days and not less than thirty
(30) days prior to the date fixed for redemption at their addresses as they appear on
the Bond Register and, If any Bonds are not fully registered, by publication at least
once not more than forty-five (45) days nor less than thirty (30) days prior to the
redemption date in a financial newspaper or journal of general circulation in the City
of New York, New York. Failure to give such notice by mailing to any Owner of Bonds,
or any defect therein, shall not affect the validity of any proceeding for the redemption
of other Bonds.
D. Notice having been mailed and flied in the manner and under the
conditions hereinabove provided, the Bonds or portions of Bonds so called for
redemption shall, on the redemption date designated in such notice, become and be
due and payable at the redemption price provided for redemption of such Bonds or
portions of Bonds on such date. On the date so designated for redemption, notice
having been mailed and flied and moneys for payment of the redemption price being
LK-06/02/93-3368-Autha -12-
held in separate accounts in trust for the Owners of the Bonds or portions thereof to
be redeemed, all as provided in this Resolution, interest on the Bonds or portions of
Bonds so called for redemption shall cease to accrue, such Bonds and portions of
Bonds shall cease to be entitled to any hen, benefit or security under this Resolution,
and the Owners of such Bonds or portions of Bonds, shall have no rights in respect
thereof, except the right to receive payment of the redemption price thereof.
E. Upon surrender of any Bond for redemption in part only, the
Issuer shall issue and deliver to the Owner thereof, the costs of which shall be paid by
the Owner, a new Bond or Bonds of authorized denominations or Maturity Amounts in
aggregate principal amount equal to the unredeemed portion surrendered.
F. In addition to the foregoing notice requirements, the Issuer shall
give notice and make redemptions in accordance with Securities and Exchange
Commission Release No. 34-3856, if then in effect, or any other release, regulation,
procedure, ruling, decision or statute modifying or superseding that release then in
effect; provided that if notice complying with Subsections C and D of this Section is
given, neither the failure to comply with this Subsection F nor any defect in the giving
of any notice pursuant to this Subsection F shall affect or invalidate the proceedings
for such redemption.
SECTION 12. FORM OF BONDS. The Bonds, the Capital Appreciation
Bonds, the Certificate of Authentication, and the Assignment shall be in substantially
the following form, with such omissions, insertions and variations as may be
necessary and desirable and which are herein authorized or permitted or which are
subsequently authorized or permitted prior to the issuance of the Bonds.
LK-06/02/93-3368-Authaea -13-
WORM OF BOND
OTHER THAN CAPITAL APPRECIATION BOND)
No. R- $
UNITED STATES OF AMERICA
STATE OF FLORIDA
CITY OF EDGEWATER
WATER AND SEWER REVENUE REFUNDING BOND, SERIES 1993
Rate of
Interest Maturity Date Date of Issue Cusip
Registered Owner:
Principal Amount:
KNOW ALL MEN BY THESE PRESENTS, that the City of Edgewater, Florida
(hereinafter called "Issuer"), for value received, hereby promises to pay, solely from the
Pledged Funds hereinafter mentioned, to the Registered Owner identified above, or
registered assigns, on the Maturity Date specified above, the Principal Amount shown
above, and to pay interest on said sum from the Date of Issue of this Bond or from the
most recent interest payment date to which interest has been paid, at the Rate of
Interest per annum set forth above until payment of such Principal Amount, such
interest being payable 1, and semiannually thereafter on
1 and 1, of each year. The principal of and
premium, if any, and interest payable on this Bond at maturity or redemption are
payable upon presentation and surrender hereof on the date fixed for maturity or
redemption at the principal corporate trust office of
(the "Paying Agent" and "Registrar") in
Florida, or at the office designated for such payment of any
successor thereof. The interest on this Bond, when due and payable, other than at
maturity or redemption, shall be paid by check or draft mailed to the person in whose
name this Bond is registered, at his address as it appears on the Bond Register, at the
close of business on the fifteenth day of the month (whether or not a business day)
next preceding the interest payment date (the "Record Date") or, in the case of
payment after default, a special record date, as provided in the Resolution hereinafter
mentioned. All amounts due hereunder shall be payable in any coin or currency of the
United States which is at the time of payment legal tender for the payment of public or
private debts.
This Bond is one of an authorized issue of Bonds in the aggregate principal
amount of $ , of like date, tenor and effect, except as to date, number,
series, interest rate, redemption provisions, and maturity date, issued to refund the
Issuer's [describe Water and Sewer Revenue Bonds, Series 1991 being refunded],
pursuant to the authority of and in full compliance with the Constitution and laws of
the State of Florida, including particularly Chapter 166, Part II, and Chapter 180,
uc-06/02/93-3368-Auo.� -14-
Florida Statutes, and other applicable provisions of law, and Resolution No. 91-R-42,
adopted by the Council of the Issuer on July 15, 1991. as supplemented, and
particularly as supplemented by a resolution duly adopted by the Issuer on
, as [amended and] supplemented (hereinafter collectively called
the "Resolution"). and is subject to all the terms and conditions of such Resolution, the
provisions of which are incorporated herein by reference.
This Bond and the issue of Bonds of which it is a part are special obligations of
the Issuer payable solely from and secured by a first lien on and pledge of (1) the net
revenues derived from the operation of the System (the "Net Revenues"). and (2) the
income on investment of funds held in the Construction Fund under the Resolution,
all in the manner provided in the Resolution (such sources hereinafter collectively
called the "Pledged Funds'%, on a parity with the outstanding Parity Bonds described
in the Resolution]. Such lien and pledge ranks prior and superior to a lien on and
pledge of Gross Revenues securing payment of the Issuer's obligations under State
Revolving Fund Loan Agreements to the State of Florida.
The Bonds shall not constitute a general indebtedness or a pledge of the faith or
credit of the Issuer within the meaning of any constitutional or statutory provision,
and the Issuer shall never be required to levy ad valorem taxes on any property to pay
the principal of or interest on the Bonds or to make any of the required payments
under the Resolution, or be required or compelled to pay the same from any funds of
the Issuer except the Pledged Funds, in the manner provided in the Resolution. The
acceptance of the Bonds by the Registered Owners from time to time thereof shall be
deemed an agreement between the Issuer and each of such Registered Owners that the
Bonds and the obligations evidenced thereby shall not constitute a lien upon any
property of or in the Issuer, but shall constitute a lien only upon the Pledged Funds in
the manner provided in the Resolution.
It is hereby certified and recited that all acts, conditions and things required to
happen, exist and be performed, precedent to and in the issuance of this Bond, have
happened, exist, and have been performed in due time, form and manner as required
by the Constitution and laws of the State of Florida applicable thereto, and that the
issuance of the Bonds of this issue does not violate any constitutional or statutory
limitations or provisions.
(INSERT REDEMPTION PROVISIONS)
Bonds in denominations greater than $5,000 Principal Amount shall be deemed
to be an equivalent number of Bonds of the denomination of $5,000 Principal Amount.
In the event a Bond is of a Principal Amount larger than $5,000, a portion of such
Bond may be redeemed, but Bonds shall be redeemed only in the Principal Amount of
$5,000 or any integral multiple thereof. Notice of redemption identifying the Bonds or
portions thereof to be redeemed will be given by the Registrar by mailing a copy of the
redemption notice by first-class mail (postage prepaid) not more than forty-five (45)
days and not less then thirty (30) days prior to the date fixed for redemption to the
Registered Owner of each Bond to be redeemed in whole or in part at the address
shown on the Bond Register, and otherwise as provided in the Resolution. Failure to
give such notice by mailing to any Registered Owner of Bonds, or any defect therein,
shall not affect the validity of any proceeding for the redemption of other Bonds. All
Bonds so called for redemption will cease to bear interest after the specified
redemption date provided funds for their redemption are on deposit at the place of
payment at that time. Upon surrender of any Bond for redemption in part only, the
Issuer shall issue and deliver to the Registered Owner thereof, the costs of which shall
LK-W/W/93-3386- ffia -15-
be paid by the Registered Owner, a new Bond or Bonds of authorized denominations in
aggregate principal amount equal to the unredeemed portion surrendered.
If the date for payment of the principal of, premium, if any, or Interest on this
bond shall be a Saturday. Sunday, legal holiday or a day on which banking
institutions in the city where the principal corporate trust office of the Paying Agent Is
located are authorized by law or executive order to close, then the date for such
payment shall be the next succeeding day which is not a Saturday. Sunday, legal
holiday or a day on which such banking institutions are authorized to close, and
payment on such date shall have the same force and effect as if made on the nominal
date of payment.
(To be inserted where appropriate on face of bond: 'Reference is hereby made to
the further provisions of this Bond set forth on the reverse side hereof, and such
further provisions shall for all purposes have the same effect as if set forth on this
side.")
Subject to the provisions of the Resolution regarding registration, this Bond is
and has all the qualities and incidents of a negotiable instrument under the Uniform
Commercial Code -Investment Securities of the State of Florida.
Subject to the limitations and upon payment of the charges provided in the
Resolution, Bonds may be exchanged for a like aggregate Principal Amount (Maturity
Amount of Capital Appreciation Bonds) of Bonds of the same maturity in other
authorized denominations and are transferable by the Registered Owner in person or
by his attorney duly authorized in writing at the above -mentioned office of the
Registrar.
The Issuer shall deem and treat the Registered Owner hereof as the absolute
owner hereof (whether or not this Bond shall be overdue) for the purpose of receiving
payment of or on account of principal hereof and interest due hereon and for all other
purposes, and the Issuer shall not be affected by any notice to the contrary.
In and by the Resolution, the Issuer has covenanted and agreed with the
Registered Owners of the Bonds that it will fix, establish and maintain such rates and
collect such fees, rentals and other charges for the services and facilities of the System
and revise the same from time to time whenever necessary, as will always provide
Gross Revenues in each Fiscal Year sufficient to pay (1) 100% of all Costs ofOperation
and Maintenance of the System in such year and 100% of the payments required to
be made into the Reserve Account and Renewal and Replacement Fund in such year,
plus (2) together with all other funds pledged to secure junior hen debt, 100% of all
Bond Service Requirements becoming due in such year on all outstanding obligations
payable from the Net Revenues of the System which are junior and subordinate as to
lien and pledge of such Net Revenues to the Bonds, plus (3) 100% of the Bond Service
Requirement becoming due in such year on the Bonds, plus (4) together with the
Allowable Impact Fees, 115% of the Bond Service Requirement becoming due in such
year on the Bonds. The Issuer has entered into certain other covenants and
agreements respecting the Bonds, as to which reference Is made to the Resolution.
This Bond shall not be valid or become obligatory for any purpose or be entitled
to any security or benefit under the Resolution until the certificate of authentication
hereon shall have been executed by the Registrar.
LK-0 /02/83-MM-Aufla -16-
IN WITNESS WHEREOF, the City of Edgewater, Florida, has issued this Bond
and has caused the same to be executed by the manual or facsimile signature of its
Mayor and attested and countersigned by the manual or facsimile signature of its City
Clerk, and its official seal or a facsimile thereof to be affixed, impressed, imprinted,
lithographed or reproduced hereon, all as of
(SEAL)
Attested and Countersigned:
City Clerk
CITY OF EDGEWATER,
FLORIDA
Mayor
CERTIFICATE OF AUTHENTICATION OF REGISTRAR
This Bond is one of the Issue of the within described Bonds. The Rate of
Interest. Maturity Date, Registered Owner and Principal Amount shown above are
correct in all respects and have been recorded, along with the applicable federal
taxpayer identification number and the address of the Registered Owner, in the Bond
Register maintained at the principal offices of the undersigned.
Registrar
Authorized Signature
Date of Authentication
iatu6/02/93-W68-A thR -17-
ASSIGNMENT
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:
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.
LK /02/93-3386-Aulha -Is-
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
TEN ENT - as tenants by the
JT TEN - as Joint tenants with
right of survivor-
ship and not as
tenants in common
UNIF GIF MIN ACT -
(Cust.)
Custodian for
(Minor)
under Uniform Gifts to Minors Act
of
(State)
Additional abbreviations may also be used though not in list above.
LK-06/02/93-3363-Autha -19-
(FORM OF CAPITAL APPRECIATION BONDS)
NO. CA
UNITED STATES OF AMERICA
STATE OF FLORIDA
CITY OF EDGEWATER
WATER AND SEWER REVENUE REFUNDING BOND, SERIES 1993
Original
Annual Yield Principal Maturity Date of
("proxlmatel Amount Date Issue CUSID
Registered Owner:
Maturity Amount:
KNOW ALL MEN BY THESE PRESENTS, that the City of Edgewater, Florida
(hereinafter called "Issuer"). for value received, hereby promises to pay, solely from the
Pledged Funds hereinafter mentioned, to the Registered Owner identified above, or
registered assigns, on the Maturity Date specified above, the Maturity Amount shown
above. The Original Principal Amount identified above will accrete from the Date of
Issue at the approximate Annual Yield identified above (subject to the rounding of the
Accreted Values), compounded on and semiannually thereafter on
1 and 1 of each year. The Accreted Values
will be paid on the Maturity Date (or upon earlier redemption) but only upon
presentation and surrender of this Bond, provided that on the Maturity Date or upon
earlier redemption hereof, the Accreted Values (per $5.000 Maturity Amount) as set
forth in the Table of Accreted Values shall determine the total amount due (per $5.000
Maturity Amount) to the Maturity Date or date of redemption. Appreciated Principal
Amounts for any date not set forth in the Table of Accreted Values shall be accrued
from the immediately preceding Accreted Values in the Table in equal daily amounts
on the basis of a 360 day year. Both principal of, premium, if any, and interest on this
Bond are payable in any coin or currency of the United States which at the time of
payment is legal tender for the payment of public or private debts. The Accreted
Values of this Bond shall be payable upon presentation and surrender hereof on the
Maturity Date or the date fixed for redemption at the principal corporate trust office of
(the "Paying Agent" and "Registrar") in , Florida, or at
the office designated for such payment of any successor thereof.
This Bond is one of a duly authorized issue in the aggregate principal amount of
$ , of like date, tenor and effect, except as to date, number, series,
redemption provisions, interest rate, and maturity date, issued to refund the Issuer's
(describe Water and Sewer Revenue Bonds, Series 1991 being refunded), pursuant to
the authority of and in full compliance with the Constitution and laws of the State of
Florida, including particularly Chapter 166, Part II, and Chapter 180. Florida Statutes,
and other applicable provisions of law, and Resolution No. 91-R-42, adopted by the
Council of the Issuer on July 15. 1991. as supplemented, and particularly as
supplemented by a resolution duly adopted by the Issuer on ,
LK-06/02/93-3368-Autha -20-
as [amended and] supplemented (hereinafter collectively called the
'Resolution"), and is subject to all the terns and conditions of such Resolution, the
provisions of which are Incorporated herein by reference.
This Bond and the issue of Bonds of which it is a part are special obligations of
the Issuer payable solely from and secured by a first lien on and pledge of (1) the net
revenues derived from the operation of the System (the "Net Revenues"), and (2) the
income on investment of funds held in the Construction Fund under the Resolution,
all in the manner provided In the Resolution (such sources hereinafter collectively
called the "Pledged Funds'%, on a parity with the outstanding Parity Bonds described
in the Resolution]. Such lien and pledge ranks prior and superior to a lien on and
pledge of Gross Revenues securing payment of the Issuer's obligations under State
Revolving Fund Loan Agreements to the State of Florida.
The Bonds shall not constitute a general indebtedness or a pledge of the faith or
credit of the Issuer within the meaning of any constitutional or statutory provision,
and the Issuer shall never be required to levy ad valotem taxes on any property to pay
the principal of or Interest on the Bonds or to make any of the required payments
under the Resolution, or be required or compelled to pay the same from any funds of
the Issuer except the Pledged Funds, in the manner provided in the Resolution. The
acceptance of the Bonds by the Registered Owners from time to time thereof shall be
deemed an agreement between the Issuer and each of such Registered Owners that the
Bonds and the obligations evidenced thereby shall not constitute a lien upon any
property of or in the Issuer, but shall constitute a hen only upon the Pledged Funds In
the manner provided in the Resolution.
It is hereby certified and recited that all acts, conditions and things required to
exist, to happen and to be performed precedent to and in the issuance of this Bond
exist, have happened and have been performed in regular and due form and time as
required by the laws and Constitution of the State of Florida applicable thereto, and
that the issuance of the Bonds of this issue does not violate any constitutional or
statutory limitations or provisions.
(INSERT REDEMPTION PROVISIONS)
Bonds in Maturity Amounts greater than $5.000 shall be deemed to be an
equivalent number of Bonds of the Maturity Amount of $5,000. In the event a Bond is
of a Maturity Amount larger than $5,000, a portion of such Bond may be redeemed,
but Bonds shall be redeemed only in the Maturity Amount of $5.000 or any integral
multiple thereof. Notice of redemption identifying the Bonds or portions thereof to be
redeemed will be given by the Registrar by mailing a copy of the redemption notice by
first-class mall (postage prepaid) not more than forty-five (45) days and not less then
thirty (30) days prior to the date fixed for redemption to the Registered Owner of each
Bond to be redeemed in whole or in part at the address shown on the Bond Register,
and otherwise as provided in the Resolution. Failure to give such notice by mailing to
any Registered Owner of Bonds, or any defect therein, shall not affect the validity of
any proceeding for the redemption of other Bonds. All Bonds so called for redemption
will cease to bear interest after the specified redemption date provided funds for their
redemption are on deposit at the place of payment at that time. Upon surrender of
any Bond for redemption in part only, the Issuer shall issue and deliver to the
Registered Owner thereof, the costs of which shall be paid by the Registered Owner, a
new Bond or Bonds of authorized denominations in aggregate principal amount equal
to the unredeemed portion surrendered.
LK-06/02/93-3368-Authaes -21-
If the date for payment of the principal of, premium, if any, or interest on this
bond shall be a Saturday, Sunday, legal holiday or a day on which banking
institutions in the city where the principal corporate trust office of the Paying Agent is
located are authorized by law or executive order to close, then the date for such
payment shall be the nest succeeding day which is not a Saturday, Sunday, legal
holiday or a day on which such banking institutions are authorized to close, and
payment on such date shall have the same force and effect as if made on the nominal
date of payment.
(To be inserted where appropriate on face of bond: "Reference is hereby made to
the further provisions of this Bond set forth on the reverse side hereof, and such
further provisions shall for all purposes have the same effect as if set forth on this
side.)"
Subject to the provisions of the Resolution regarding registration, this Bond is
and has all the qualities and incidents of a negotiable instrument under the Uniform
Commercial Code - Investment Securitiesof the State of Florida.
In and by the Resolution, the Issuer has covenanted and agreed with the
Registered Owners of the Bonds that it will fix, establish and maintain such rates and
collect such fees, rentals and other charges for the services and facilities of the System
and revise the same from time to time whenever necessary, as will always provide
Gross Revenues in each Fiscal Year sufficient to pay (1) 100% of all Costs of Operation
and Maintenance of the System in such year and 100% of the payments required to
be made into the Reserve Account and Renewal and Replacement Fund in such year,
plus (2) together with all other funds pledged to secure junior hen debt, 100% of all
Bond Service Requirements becoming due in such year on all outstanding obligations
payable from the Net Revenues of the System which are junior and subordinate as to
lien and pledge of such Net Revenues to the Bonds, plus (3) 100% of the Bond Service
Requirement becoming due in such year on the Bonds, plus (4) together with the
Allowable Impact Fees, 115% of the Bond Service Requirement becoming due in such
year on the Bonds. The Issuer has entered into certain other covenants and
agreements respecting the Bonds, as to which reference is made to the Resolution.
Subject to the limitations and upon payment of the charges provided in the
Resolution. Bonds may be exchanged for a like aggregate Principal Amount (Maturity
Amount for Capital Appreciation Bonds) of Bonds of the same maturity In other
authorized denominations and are transferable by the Registered Owner in person or
by his attorney duly authorized in writing, at the above -mentioned office of the
Registrar.
The Issuer shall deem and treat the Registered Owner hereof as the absolute
owner hereof (whether or not this Bond shall be overdue) for the purpose of receiving
payment of or on account of principal hereof and Interest due hereon and for all other
purposes, and the Issuer shall not be affected by any notice to the contrary.
This Bond shall not be valid or become obligatory for any purposes or be
entitled to any security or benefit under the Resolution until the certificate of
authentication hereon shall have been duly executed by the Registrar.
La /92/93-336&Autl t . -22-
IN WITNESS WHEREOF, the City of Edgewater. Florida, has issued this Bond
and has caused the same to be executed by the manual or facsimile signature of its
Mayor and attested and countersigned by the manual or facsimile signature of its City
Clerk, and its official seal or a facsimile thereof to be affixed, impressed, imprinted,
lithographed or reproduced hereon, as all of ,
(SEAL)
Attested and Countersigned:
City Clerk
CITY OF EDGEWATER,
FLORIDA
Mayor
CERTIFICATE OF AUTHENTICATION OF REGISTRAR
This Bond is one of the Issue of the within described Bonds. The Annual Yield
Interest, Maturity Date. Registered Owner, Maturity Amount and Original Principal
Amount shown above are correct in all respects and have been recorded, along with
the applicable federal taxpayer identification number and the address of the Registered
Owner, in the Bond Register maintained at the principal offices of the undersigned.
Registrar
Authorized Signature
Date of Authentication
U(-06/02/93-3368-AuthRe. -23-
ASSIGNMENT
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:
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.
LK-06/02/93-336&AuthRe -24-
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
TEN ENT - as tenants by the
JT TEN - as joint tenants with
right of survivor-
ship and not as
tenants in common
UNIF GIF MIN ACT -
(Cust.)
Custodian for
(Minor)
under Uniform Gifts to Minors Act
of
(State)
Additional abbreviations may also be used though not in list above.
LK-06/M/93-3366-AulhR. -25-
SECTION 13. APPLICATION OF PROCEEDS OF 1993 BONDS. All
moneys received from the sale of the 1993 Bonds shall be applied by the Issuer as
follows:
A. All accrued interest to the date of delivery shall be deposited in the
Sinking Fund and shall be used only for the purpose of paying interest becoming due
on the 1993 Bonds.
B. A sum which, together with other legally available funds of the
Issuer deposited therein on the date of delivery of the 1993 Bonds, will not exceed the
Maximum Bond Service Requirement on the 1993 Bonds and the outstanding Parity
Bonds, if any, will be deposited in the Reserve Account.
C. To the extent not paid or reimbursed therefor by the original
purchaser of the 1993 Bonds, the Issuer shall next pay all costs and expenses in
connection with the preparation, issuance, and sale of the 1993 Bonds.
D. A sum to be specified in the Escrow Deposit Agreement which,
together with other funds described in the Escrow Deposit Agreement to be deposited
in escrow, and when invested or held in cash, will be sufficient to pay, as of any date
of calculation, the principal of, interest on, and premium, if any, and other costs and
obligations incurred with respect to the Refunded Bonds as the same shall become
due or are redeemed, and to pay the expenses specified in the Escrow Deposit
Agreement, shall be deposited into the Escrow Deposit Trust Fund established in the
Escrow Deposit Agreement in the amounts sufficient for such purposes.
Such funds shall be kept separate and apart from all other funds of the Issuer
and the moneys on deposit therein shall be withdrawn, used and applied by the
Escrow Agent solely for the purposes set forth herein and in the Escrow Deposit
Agreement.
Simultaneously with the delivery of the Bonds to the Underwriter, the Issuer
shall enter into the Escrow Deposit Agreement. The Escrow Deposit Agreement shall
provide for the deposit of sums into the Escrow Deposit Trust Fund and for the
investment of such moneys in appropriate Federal Securities so as to produce
sufficient funds to make all of the payments described in the first paragraph of this
Subsection 13D. At the time of execution of the Escrow Deposit Agreement, the Issuer
shall furnish to the Escrow Agent named therein appropriate documentation to
demonstrate that the sums being deposited and the investments to be made will be
sufficient for such purposes.
The Registered Owners of the Bonds shall have no responsibility for the use of
the proceeds of the Bonds, and the use of such Bond proceeds by the Issuer shall in
no way affect the rights of such Registered Owners.
SECTION 14. SECURITY FOR BONDS. (a) The payment of the principal
of and interest on the Bonds shall be secured forthwith equally and ratably by a
pledge of and an irrevocable lien on the Pledged Funds. The Issuer does hereby
irrevocably pledge such funds to the payment of the principal of and interest on the
Bonds issued pursuant to this Resolution, and to the payment therefrom into the
Sinking Fund at the times provided of the sums required to secure the payment of the
principal of and interest on the Bonds at the respective maturities of the Bonds. The
Bonds and Interest thereon shall not be or constitute a general indebtedness of the
Issuer within the meaning of any constitutional or statutory limitation or provision,
LH-06/02/93-3368-AulhRes -26-
but shall be payable solely from and secured by a lien upon and pledge of the Pledged
Funds. No Owner of any of the Bonds shall ever have the right to require or compel
the exercise of the ad valorem taxing power of the Issuer for payment of the principal
of and interest on the Bonds or the making of any sinking fund, reserve, or other
payments provided for in this Resolution. The Bonds and the obligation evidenced
thereby shall not constitute a lien upon the System, or any part thereof, or on any
property of or in the Issuer, but shall constitute a lien only on the Pledged Funds, in
the manner provided herein.
(b) The Bonds, being issued to refund the Refunded Bonds, shall not
constitute a new obligation of the Issuer, but shall be a renewal of and a continuation
of the original obligation of the Issuer evidenced by the Refunded Bands. The lien on
and pledge of the Pledged Funds securing payment of the Bonds shall rank equally
and pari passu with the lien on and pledge of such Pledged Funds securing payment of
the Parity Bonds. Such lien and pledge securing payment of the Bonds and the Parity
Bonds shall rank senior and superior to the lien on and pledge of Gross Revenues
securing payment of the Issuer's obligations under State Revolving Fund Loan
Agreements with the State of Florida.
SECTION 16. COVENANTS OF THE ISSUER. For as long as any of the
principal of and interest on any of the Bonds shall be outstanding and unpaid, or until
payment has been provided for as herein permitted, the Issuer covenants with the
Owners of any and all Bonds as follows:
A. Revenue Fund. The entire Gross Revenues derived from the
operation of the System shall upon receipt thereof be deposited in the "City of
Edgewater Utility System Revenue Fund" (hereinafter called the "Revenue Fund").
created and established by the Original Resolution. The Revenue Fund shall
constitute a trust fund for the purposes herein provided, and shall be kept separate
and distinct from all other funds of the Issuer and used only for the purposes and in
the manner herein provided.
B. Sinking Fund and Rate Stabilization Fund. There have been
created and established by the Original Resolution separate funds to be designated
"City of Edgewater Water and Sewer Revenue Refunding Bonds Sinking Fund"
(hereinafter called "Sinking Fund") and the City of Edgewater Utility Rate Stabilization
Fund" (hereinafter called "Rate Stabilization Fund"). There have been created and
established by the Original Resolution to the Sinking Fund four accounts known as
the "Interest Account", "Principal Account", "Reserve Account" and "Bond Amortization
Account".
C. Disposition of Revenues. All Gross Revenues at any time
remaining on deposit in the Revenue Fund shall be applied and allocated on a monthly
basis, commencing in the month immediately following the delivery of the Bonds only
in the following manner and in the following order of priority:
(1) Gross Revenues shall first be used to deposit in the "City of
Edgewater Utility System Operation and Maintenance Fund" (the "Operation and
Maintenance Fund") which fund is hereby created and established, such sums as are
necessary for payment of the Cost of Operation and Maintenance for the next ensuing
month.
(2) Gross Revenues shall next be used to deposit into the
Interest Account, such sums as will, in equal monthly installments, collectively be
LK-06/02/93-3368-Aua,Re. -27.
sufflcient to pay all interest not capitalized becoming due on the Bonds on the next
interest payment date.
(3) Gross Revenues shall next be used for deposit into the
Principal Account, in any Bond Year in which a Serial Bond matures, such sums as
will, in equal monthly installments, be sufficient to pay the principal (Maturity Amount
for Capital Appreciation Bonds) maturing on Serial Bonds in such Bond Year.
(4) (a) On a parity with required deposits under paragraph
(3) above, Gross Revenues shall next be used for deposit into the Bond Amortization
Account, in any Bond Year In which an Amortization Installment is due, such sums as
will, in equal monthly installments, be sufficient to pay the Amortization Installment
required to be made In such Bond Year. Such payments shall be credited to a
separate account for each series of Term Bonds outstanding, and if there shall be
more than one stated maturity for Term Bonds of a series, then into a separate special
account in the Bond Amortization Account for each such separate maturity of Tenn
Bonds. The funds and investments in each such separate account shall be applied to
the payment of principal of the Term Bonds of the series or maturity for which it is
established, as provided in Section 15D herein.
(b) Upon the sale of any series of Tenn Bonds, the
Issuer, shall by resolution, establish the amounts and maturities of such Amortization
Installments for each series, and if there shall be more than one maturity of Tenn
Bonds within a series, the Amortization Installments for the Tenn Bonds of each
maturity.
(c) Moneys on deposit in each of the separate accounts
in the Bond Amortization Account shall be used for the open market purchase or the
redemption of Tenn Bonds of the series or maturity of Tenn Bonds within a series for
which such separate account is established.
(5) The required deposits to the Principal Account, Interest
Account and Bond Amortization Account shall be adjusted in order to take into
account the amount of money then on deposit therein.
(6) (a) Gross Revenues shall next be applied by the Issuer
to establish and maintain in the Reserve Account a sum equal to the Reserve
Requirement. Such sum shall be initially established and funded by deposit at the
time of issuance of any Bonds.
(b) Moneys in the Reserve Account shall be used only for
the purposes of (i) the payment of maturing principal of or interest on the Bonds, or
maturing Amortization Installments, if any, when the other moneys in the Sinking
Fund are insufficient therefor, or (n) transfers to the Revenue Fund of amounts in the
Reserve Account in excess of the Reserve Requirement.
(c) Any withdrawals from the Reserve Account under
clause (b)(i) above shall be subsequently restored from the first moneys available in the
Revenue Fund after all required current deposits under paragraphs (1). (2). (3) and (4)
above (including all deficiencies in prior deposits) have been made in full.
(d) Notwithstanding the foregoing provisions, in lieu of
the required deposits of Gross Revenues into the Reserve Account, the Issuer may
cause to be deposited into the Reserve Account for any series of Bonds a surety bond.
Lx-06/02/83-3368-AuthRes -28-
a letter of credit or an insurance policy issued by a reputable and recognized insurer
for the benefit of the Owners in an amount equal to the difference between the Reserve
Requirement and the sums then on deposit in the Reserve Account, if any, which
surety bond, letter of credit or insurance policy shall be payable (upon the giving of
notice as required thereunder) on any interest payment date on which a deficiency
exists which cannot be cured by funds in any other fund or account held pursuant to
this Resolution and available for such purpose. The insurer providing such surety
bond or insurance policy shall be an insurer whose municipal bond insurance policies
Insuring the payment, when due, of the principal of and interest on municipal bond
Issues results in such issues being rated in the highest rating category by either
Standard & Poor's Corporation or Moody's Investors Service, Inc., or their successors
or any insurer who holds the highest policyholder rating accorded insurers by A.M.
Best & Co. or any comparable service. The bank providing such letter of credit shall
be a bank which is rated in the highest rating category by either Standard & Poor's
Corporation or Moody's Investors Service, or their successors. If a disbursement is
made from a surety bond, letter of credit or an insurance policy provided pursuant to
this paragraph, the Issuer shall be obligated to either reinstate the maximum limits of
such surety bond, letter of credit or insurance policy immediately following such
disbursement or to deposit into the Reserve Account, as herein provided in this
paragraph (6)(d) for restoration of withdrawals from the Reserve Account, funds in the
amount of the disbursement made under such policy, or a combination of such
alternatives.
(7) Upon the issuance of any Additional Parity Bonds under the
terms, limitations and conditions as are herein provided, the payments into the several
accounts in the Sinking Fund shall be increased in such amounts as shall be
necessary to make the payments for the principal of, interest on and reserves for such
Additional Parity Bonds and, if Term Bonds are issued, the Amortization Installments.
on the same basis as hereinabove provided with respect to the 1993 Bonds initially
Issued under this Resolution.
(8) The Issuer shall not be required to make any further
payments into the Sinking Fund in any Bond Year when (i) the aggregate amount of
money in the Interest Account, Principal Account and Bond Amortization Account in
the Sinking Fund is at least equal to the total annual Bond Service Requirements
becoming due in such Bond Year on the Bonds then outstanding, plus the amount of
redemption premium, if any, then due and thereafter to become due in such Bond
Year on such Bonds then outstanding by operation of the Bond Amortization Account,
and (ii) the full amount of the Reserve Requirements is on deposit in the Reserve
Account.
(9) Gross Revenues shall next be used to provide for monthly
payments or accruals of maturing principal of and interest on any debt of the Issuer
which is payable from Net Revenues on a junior and subordinate basis to the Bonds.
(10) Gross Revenues shall next be deposited monthly into a
special account to be known as the "City of Edgewater Utility System Renewal and
Replacement Fund" (hereinafter called the "Renewal and Replacement Fund"), which
fund is hereby created and established, in an amount equal to one -twelfth (1/12) of
five per centum (50/6) of the Gross Revenues of the System for the previous Fiscal Year;
provided, however, that so long as there shall be on deposit in such Renewal and
Replacement Fund a balance of at least five per centum (5%) of the value of the fixed
assets of the System, according to the most recent annual audit of the Issuer, no
additional deposits in such Fund shall be required. The moneys in the Renewal and
LK-06/02/93-3366-Autha a -29-
Replacement Fund shall be used only for the purposes of (a) paying the cost of
extensions, enlargements or additions to, or the replacement of capital assets of, the
System and emergency repairs thereto, upon the authorization of the governing body
of the Issuer and, for projects costing in excess of $100,000, approval of the
Consulting Engineers, and (b) transfers to the Reserve Account, if necessary in order
to prevent a default in the payment of the principal or Amortization Installments of
and interest on the Bonds.
(11) Gross Revenues shall next be used to transfer from the
Revenue Fund to the Rate Stabilization Fund the amount, if any, budgeted for deposit
into the Rate Stabilization Fund for then current period as set forth in the current
annual budget of the Issuer, or the amount otherwise determined by the Issuer to be
credited to the Rate Stabilization Fund for such period;
(12) Until the last date of completion of (i) all projects financed
from the proceeds of the Parity Bonds, as defined herein, and (it) all projects financed
from the proceeds of the presently outstanding loans of the Issuer from the State of
Florida which are payable from Net Revenues on a junior lien basis, the Issuer will
deposit all remaining Gross Revenues into the Construction Fund and use the money
so deposited and the earnings thereon. first, if necessary, to complete the projects
described in clause (I) above, and, second, if necessary, to complete the projects
described in clause (it) above, and, third, after completion of all such projects, to the
Revenue Fund.
(13) Gross Revenues remaining in the Revenue Fund after all of
the above required payments have been made may be used by the Issuer for any
lawful purpose.
(14) The Operation and Maintenance Fund, the Sinking Fund,
the Renewal and Replacement Fund, the Revenue Fund, the Improvement Fund, the
Rate Stabilization Fund, and all accounts therein and any other special funds herein
established and created shall constitute trust funds for the purposes provided herein
for such funds.
(15) Monies on deposit in the Revenue Fund, the Operation and
Maintenance Fund, and the Sinking Fund (except the Reserve Account therein) may be
invested and reinvested in Authorized Investments, provided such investments either
mature or are redeemable at not less than par without penalty at the option of the
Issuer not later than the dates on which the moneys on deposit therein will be needed
for the purpose of such fund. The moneys in the Reserve Account in the Sinking
Fund, in the Rate Stabilization Fund and in the Renewal and Replacement Fund may
be invested and reinvested only in Authorized Investments in the manner provided by
law, provided such investments mature within five years of the date of purchase. All
Income on all such investments shall be deposited into the Revenue Fund, except that
investment income earned in the Reserve Account shall remain therein whenever the
amount on deposit therein is less than the Reserve Requirement.
(16) Investments in the Reserve Account and the Renewal and
Replacement Fund shall be valued at their market value as of the last business day of
each Fiscal Year. In the ensuing Fiscal Year, as a result of such revaluation, (1) any
amount in the Reserve Account in excess of the Reserve Requirement may be
transferred to the Revenue Fund, and (it) any deficiency in the Reserve Account shall
be restored from 12 equal monthly deposits from the Revenue Fund as provided In
Subsection C(6) hereof.
Lx /02/93-MM-AuthPe -30-
D. Operation of Bond Amortization Account. Money held for the
credit of the Bond Amortization Account, and each separate account established
therein, shall be applied to the retirement of Term Bonds as follows:
(1) The Issuer shall endeavor to purchase Term Bonds subject
to mandatory redemption in the then current Bond Year at the most advantageous
price obtainable with reasonable diligence, such price not to exceed the principal of
such Term Bonds, or the Appreciated Principal Amounts of Capital Appreciation Term
Bonds on the mandatory redemption date, plus the accrued interest to the date of
delivery thereof. No such purchase shall be made by the Issuer within the period of 45
days immediately preceding any interest payment date on which Term Bonds are
subject to call for mandatory redemption.
(2) The Issuer shall call for redemption from money in the
Bond Amortization Account the amount of Term Bonds subject to mandatory
redemption, in the then current Bond Year, less the principal amount of such Term
Bonds, or Accreted Value of such Capital Appreciation Term Bonds, which have been
purchased under Subsection D(1) above.
(3) The Issuer shall pay the interest accrued on Term Bonds
(but not on Capital Appreciation Term Bonds) being purchased or redeemed to the
date of delivery or redemption from the Interest Account and the purchase or
redemption price from the Bond Amortization Account.
E. Operation and Maintenance. The Issuer will maintain the
System and all parts thereof in good condition and will operate the same in an efficient
and economical manner making such expenditures for equipment and for renewals,
repairs and replacements as may be proper for the economical operation and
maintenance thereof.
F. Annual Budget. The Issuer shall annually prepare and adopt in
accordance with applicable law a detailed budget of the estimated Cost of Operation
and Maintenance of the System during each next succeeding Fiscal Year. No
expenditure for the Cost of Operation and Maintenance of the System shall be made in
any Fiscal Year in excess of the amount provided therefor in such budget without a
finding and recommendation by the duly authorized officer in charge thereof, which
finding and recommendation shall state in detail the purpose of and necessity for such
Increased expenditures for the Cost of Operation and Maintenance of the System, and
no such expenditure shall be made until the governing body of the Issuer shall have
approved such finding and recommendation by resolution duly adopted. The Issuer
shall, upon request, mail copies of such annual budgets to any Owner of Bonds who
shall file his address with the Issuer and request in wilting that copies of all such
budgets be furnished him, and shall make available such budgets at all reasonable
times to any Owner of Bonds or to anyone acting for and on behalf of such Owner,
providing that such Owner shall pay the reasonable cost of such documents.
G. Bate Ordinance. (1) The Issuer will enact a rate ordinance and
thereby will fix, establish and maintain such rates and will collect such fees, rentals or
other charges for the services and facilities of the System and revise the same from
time to time, whenever necessary, as will always provide Gross Revenues in each
Fiscal Year sufficient to pay (a) one hundred per centum (1000/0) of all Costs of
Operation and Maintenance of the System in such Fiscal Year, one hundred per
centum (100%) of the payments required to be made into the Reserve Account, and
LK- 3/02/93-3W&AuthRe -31-
Renewal and Replacement Fund In such Fiscal Year, plus (b) together with all other
funds pledged to secure junior lien debt, one hundred per centum (100%) of all Bond
Service Requirements becoming due in such Fiscal Year on all outstanding obligations
payable from the Net Revenues of the System which are junior and subordinate as to
lien on and pledge of such Net Revenues to the lien and pledge securing payment of
the Bonds, plus (c) one hundred per centum (100%) of the Bond Service Requirement
becoming due in such year on the Bonds, plus (d) together with the Allowable Impact
Fees, one hundred fifteen per centum (115%) of the Bond Service Requirement
becoming due in such Fiscal Year on the Bonds. The Issuer will not reduce its
schedule of rates, fees, rentals and other charges unless (i) the Issuer Is not In default
of any covenant or provision of this Resolution, (]I) all required payments under this
Resolution have been made in full, and (ill) the Consulting Engineer certifies that the
proposed reduced schedule will provide sufficient Gross Revenues in each Fiscal Year
to comply with all covenants and required payments under this Resolution.
(2) Whenever Gross Revenues are less In any Fiscal Year than
the amount required in Subsection G(1) above, the Issuer will promptly retain a Rate
Consultant to prepare and present to the governing body of the Issuer a rate study
recommending such revisions in rates, fees, rentals and other charges for the services
and facilities of the System as will, in the opinion of the Rate Consultant, generate
Gross Revenues sufficient to meet such requirements in the next five (5) full Fiscal
Years. The Issuer will Implement the recommendations of the Rate Consultant or,
with the concurrence of the Rate Consultants, such other rate revisions as the Issuer
may find will generate such Gross Revenues.
H. Books and Records. The Issuer shall keep books and records of
the Pledged Funds and the financial affairs of the System which shall be kept separate
and apart from all other books, records and accounts of the Issuer, and the Owners of
the Bonds shall have the right at all reasonable times to inspect all records, accounts
and data of the Issuer relating thereto.
I. Annual Audit. The Issuer shall, at least once a year, within 120
days after the close of its Fiscal Year, cause the books, records and accounts relating
to the System to be properly audited by a recognized independent firm of certified
public accountants and shall make generally available the report of such audits to any
Owner of Bonds. Such audits shall contain a complete report of the operations of the
System including, the balance sheet, a statement of income and expense, the
statement of changes in cash flow, and a certificate by the auditors stating no default
on the part of the Issuer of any covenant herein has been disclosed by reason of the
audit (or a statement specifying such default). The auditors selected shall be changed
at any time by a written request signed by the Owners of a majority of the principal
amount (Accreted Values for Capital Appreciation Bonds) of the Bonds outstanding or
their duly authorized representatives. A copy of such annual audit shall be furnished
to any rating services maintaining a rating on the Bonds and to any Owner of any
Bonds who shall have requested in writing that a copy of such reports be furnished
him.
J. No Mortgage or Sale of the System.
(1) The Issuer will not sell, lease, mortgage, pledge or otherwise
encumber the System, or any substantial part thereof, or any revenues to be derived
therefrom, except as herein provided.
LK-0 /02/83-3388-1 tha -32.
(2) (a) The Issuer shall have and hereby reserves the right
to sell, lease or otherwise dispose of any of the property comprising a part of the
System which the Issuer shall hereafter determine, in the manner provided herein, to
be no longer necessary, useful or profitable in the operation of the System.
(b) Prior to any such sale, lease or other disposition of
said property, if the amount to be received therefor is not in excess of $50,000, the
City Manager of the Issuer or other duly authorized officer in charge thereof shall
make a finding in writing determining that such property comprising a part of the
System is no longer necessary, useful or profitable in the operation thereof.
(c) If the amount to be received from such sale, lease or
other disposition of said property shall be in excess of $50,000 but not in excess of
$100,000 such City Manager or other officer shall first make a finding in writing
determining that such property comprising a part of the System is no longer
necessary, useful or profitable in the operation thereof, and the governing body of the
Issuer shall, by resolution duly adopted, approve and concur in the finding of the City
Manager or other officer, and authorize such sale, lease or other disposition of said
property.
(d) If the amount to be received from such sale, lease or
other disposition of said property shall be in excess of $100.000, the City Manager or
other officer shall first make a finding in writing determining that such property
comprising a part of the System is no longer necessary, useful or profitable In the
operation thereof, and the Consulting Engineer shall make a finding that it is in the
best interest of the System that such property be disposed of, and the governing body
of the Issuer shall by resolution, duly adopted, approve and concur in the findings of
the City Manager or other officer and of the Consulting Engineer, and shall authorize
such sale, lease or other disposition of said property.
(3) The governing body of the Issuer shall have and reserves
the right to authorize the sale or other disposition of any of the property comprising a
part of the System, if the Consulting Engineer shall certify that the Net Revenues of
the System will not be materially adversely affected by reason of such sale or
disposition.
(4) If the proceeds derived from any sale or other disposition of
the property of the System are in excess of 10% of the value of the fixed assets of the
System according to the most recent annual audit and operating report, such proceeds
shall be used for the retirement of outstanding Bonds. If the proceeds derived from
any such sale or other disposition of property are less than 100/b of the value of the
fixed assets of the System according to the most recent annual audit and operating
report, such proceeds shall be placed In the Renewal and Replacement Fund or used
for the retirement of outstanding Bonds, in such proportions as are determined by the
governing body of the Issuer upon the recommendations of the City Manager. The
payment of such proceeds Into the Renewal and Replacement Fund shall not reduce
the amounts required to be paid into such Fund by Section 15C(10) herein.
H. Insurance. The Issuer will carry adequate fire and windstorm
insurance on all buildings and structures of the works and properties of the System
which are subject to loss through fire or windstorm, and will otherwise carry
Insurance of all kinds and in the amounts normally carried in the operation of similar
facilities and properties in Florida; provided, however, that in lieu of such insurance
the Issuer may establish a qualified plan of self-insurance in accordance with the laws
LK- /022/83-3 -A thRea -9$-
of the State of Florida. Any such insurance shall be carried for the benefit of the
Owners of the Bonds. All moneys received for losses under any of such insurance,
except public liability, are hereby pledged by the Issuer as security for the Bonds, until
and unless such proceeds are used to remedy the loss or damage for which such
proceeds are received, either by repairing the property damaged or replacing the
property destroyed as soon as practicable. Any such proceeds not used for repair or
replacement shall be used for the retirement of outstanding Bonds.
L. No Free Service. The Issuer will not render or cause to be
rendered any free services of any nature by its System, nor will any preferential rates
be established for users of the same class. Whenever the Issuer, including its
departments, agencies and instrumentalities, shall avail itself of the product, facilities
or services provided by the System, or any part thereof, the same rates, fees or charges
applicable to other customers receiving like services under similar circumstances shall
be charged to the Issuer and any such department, agency or instrumentality. Such
charges shall be paid as they accrue, and the Issuer shall transfer from its general
funds to the Revenue Fund sufficient sums to pay such charges. The revenues so
received shall be deemed to be Gross Revenues derived from the operation of the
System, and shall be deposited and accounted for in the same manner as other Gross
Revenues derived from such operation of the System.
M. Mandatory Cut Off. To the extent permitted by law, upon failure
of any user to pay for services rendered by the System within not more than sixty (60)
days, the Issuer shall shut off the connection of such user and shall not furnish him
or permit him to receive from the System further service until all obligations owed by
him to the Issuer on account of services shall have been paid in full. This covenant
shall not, however, prevent the Issuer from causing the System connection to be shut
off sooner.
N. Enforcement of Collections, The Issuer will diligently enforce
and collect the rates, fees and other charges for the services and facilities of the
System herein pledged; will take all steps, actions and proceedings for the enforcement
and collection of such rates, charges and fees as shall become delinquent to the full
extent permitted or authorized by law; and will maintain accurate records with respect
thereof. All such fees, rates, charges and revenues herein pledged shall, as collected,
be held in trust to be applied as herein provided and not otherwise.
O. Default and Remedies. If either (i) the Issuer shall fail to pay the
principal of or interest, or premium, if any, on any of the Bonds as the same shall
become due, or (it) the Issuer shall fall in the observance or performance of any of the
applicable covenants contained in this Resolution, then any Owner of Bonds may
either at law or in equity, by suit, action, mandamus or other proceedings in any court
of competent Jurisdiction, protect and enforce any and all rights, Including the right to
the appointment of a receiver, existing under the laws of the State of Florida, or
granted and contained herein, and may enforce and compel the performance of all
duties required herein or by any applicable statutes relating to the System or the
Bonds to be performed by the Issuer or by any officer thereof. Nothing herein,
however, shall be construed to grant to any Owner of the Bonds any lien on the
System or any other real or tangible personal property of the Issuer.
P. Consulting Engineer.
(1) The Consulting Engineer shall provide the Issuer with
competent advice respecting the proper, efficient and economical operation and
LK-06/02/93-3368-Authae9 -34-
maintenance of the System and the making of capital improvements and renewals and
replacements to the System. The Issuer shall, on an annual basis prior to completion
of the Project, and on a triennial basis thereafter, cause to be prepared by the
Consulting Engineer a report or survey of the System, with respect to the management
of the properties thereof, the proper maintenance of the properties of the System, and
the necessity for capital improvements and recommendations therefor. Such a report
or survey shall also show any failure of the Issuer to perform or comply with the
covenants herein contained.
(2) If any such report or survey of the Consulting Engineer
shall set forth that the provisions hereof or any reasonable recommendations of such
Consulting Engineer have not been complied with, the Issuer shall immediately take
such reasonable steps as are necessary to comply with such requirements and
recommendations. Copies of each report or survey shall be placed on file with the City
Manager and shall be open to the inspection of any Owner of Bonds.
9. No Competing System. To the full extent permitted by law, the
Issuer will not hereafter grant, or cause, consent to, or allow the granting of, any
franchise or permit to any person, firm, corporation or body, or agency or
instrumentality whatsoever, for the furnishing of water or sewer services to or within
the boundaries of the Issuer.
R. Issuance of Other Obligations. Except for the 1993 Bonds and
Parity Bonds, if any, the Issuer will not issue any other obligations payable from the
Pledged Funds nor voluntarily create or cause to be created any debt, lien, pledge,
assignment, encumbrance or other charge having priority to or being on a parity with
the lien of the 1993 Bonds and Parity Bonds, if any, and the interest thereon upon
Pledged Funds, except under the conditions and in the manner provided in Subsection
S below. Any obligations issued by the Issuer other than the 1993 Bonds herein
authorized and Parity Bonds, if any, and Additional Parity Bonds provided for in
Subsection S below, payable from Pledged Funds, shall contain an express statement
that such obligations are junior and subordinate in all respects to the 1993 Bonds and
Parity Bonds, If any, as to lien on and source and security for payment from Pledged
Funds.
S. Issuance of Additional Parity Bonds. Additional Parity Bonds,
payable on a parity from the Pledged Funds with the 1993 Bonds and Parity Bonds, if
any, may be issued after the issuance of any 1993 Bonds for the construction and
acquisition of any additions, extensions and improvements to the System or for
refunding purposes and upon the conditions and in the manner herein provided:
(1) There shall have been obtained and tiled with the Issuer a
certificate of an independent certitled public accountant or firm of such accountants of
suitable experience and responsibility: (a) stating that the books and records of the
Issuer relating to the collection and receipt and application of Gross Revenues have
been audited by it for the Fiscal Year immediately preceding the date of delivery of the
proposed Additional Parity Bonds, or for any twelve (12) consecutive months period
out of the eighteen (18) consecutive months immediately preceding the date of sale of
the proposed Additional Parity Bonds: (b) setting forth the amount of Net Revenues
received by the Issuer for the audited period referred to in (a) above, with respect to
which such certificate is made: (c) stating that the Net Revenues described in (b)
above, as adjusted in the manner permitted in Subsection S(2) below, equal at least
1.20 times the Maximum Bond Service Requirements coming due in any future Bond
UK-06/02/93-3368-AuthR -35-
Year on all Bonds then outstanding and on the proposed Additional Parity Bonds with
respect to which such certificate is made.
(2) The Net Revenues for such period may be adjusted by the
Consulting Engineers or Rate Consultants as follows: (a) to reflect for such period
changes made in the rates, fees, rentals and other charges from the operation of the
System which are in effect before the date of such certificate, as though such changes
had been in effect during all of such preceding audited period referred to in Subsection
S(1) above; (b) to reflect for such period any change in such Net Revenues caused by
any new projects of the System having been placed into use and operation subsequent
to the date of commencement of such period and prior to the date of such certificate
provided for in Subsection S(I) above: (c) to include for such period an amount equal
to not more than 75% the Net Revenues estimated to be derived from the operation of
any project which will be placed in operation within 3 years following the date of
delivery of and to be acquired or constructed out of the proceeds of such Additional
Parity Bonds during the first Fiscal Year commencing after such project is first placed
in operation; (d) to include for such period an amount equal to not more than 75% of
the Net Revenues estimated to be derived from the operation of any other project of the
System, actually under construction but which will not be placed into use and
operation until after the date of issuance (but in no event later than three years after
such date) of such Additional Parity Bonds, during the first Fiscal Year commencing
after such project Is first placed In service; and (e) to include for such period interest
income estimated to be earned during the ensuing Fiscal Year on moneys deposited
into the Reserve Account from a portion of the proceeds of such Additional Parity
Bonds.
(3) Each ordinance or resolution authorizing the issuance of
Additional Parity Bonds shall recite that all of the covenants herein contained will be
applicable to such Additional Parity Bonds.
(4) The Issuer shall not be in default in performing any of the
covenants and obligations assumed hereunder, and all payments herein required to
have been made into the accounts and funds, as provided hereunder, shall have been
made to the full extent required.
(5) Refunding bonds for the purpose of refunding all of the then
outstanding Bonds may be Issued without compliance with any of the above
paragraphs (1) through (4) of this Subsection S. Refunding bonds for the purpose of
refunding all or part of any series of the then outstanding Bonds, but less than all
then outstanding Bonds, may be issued without compliance with paragraphs (1), (2)
and (4), above, provided that the annual Bond Service Requirement on all Bonds
outstanding after issuance of the refunding bonds, in each Bond Year in which any
principal of or interest on the Bonds outstanding immediately prior to issuance of the
refunding bonds is due or subject to mandatory redemption, is equal to or less than
the annual Bond Service Requirement in each such corresponding Bond Year prior to
issuance of such refunding bonds.
T. Creation of Superior Idens. The Issuer will not issue any other
notes, bonds, certificates or obligations of any kind or nature or create or cause or
permit to be created any debt, hen, pledge, assignment or encumbrance or charge
payable from or enjoying a hen upon any of the Pledged Funds ranking prior and
superior to the hen created by this Resolution for the benefit of the Bonds.
LK-06/02/93-3368-A Mee -36-
U. Compliance with Laws and Regulation. The Issuer will perform
and comply with, in every respect, any loan agreement which it might have with any
governmental agency and all applicable Federal and State laws and regulations
respecting the Bonds and the ownership and operation of the System.
V. Fidelity Bond. The Issuer will require each employee who
may have possession of any Pledged Funds to be covered by a fidelity bond written by
a responsible indemnity company in an amount fully adequate to protect the Issuer
from loss.
W. Rate Stabilization Fund.
(1) Each month the Issuer shall transfer from the Rate
Stabilization Fund to the Revenue Fund the amount budgeted, if any, for transfer into
the Revenue Fund for the then current month as set forth in the current annual
budget or the amount otherwise determined by the Issuer to be deposited into the
Revenue Fund for the month.
(2) At any time and from time to time the Issuer may transfer
for deposit in the Rate Stabilization Fund from any lawful source such amounts as the
Issuer deems necessary or desirable; such amounts shall be applied for purposes of
the Rate Stabilization Fund in accordance with paragraph (1) of this Subsection W.
R. Impact Fees. The Issuer shall cause its Consulting Engineer
upon the issuance of each series of Bonds, to calculate the New User Facilities Portion,
the Impact Fees Percentage and the aggregate Allowable Impact Fees for such series of
Bonds. Separate calculations shall be made for water projects and water Impact Fees
and for sewer projects and sewer Impact Fees. Impact Fees, as received, shall first be
deposited into the Water and Sewer System Capital Improvement Fund (the
"Improvement Fund'). Water Impact Fees and sewer Impact Fees shall be maintained
in separate accounts in the Improvement Fund. If necessary in order to make the
deposits required by Subsection 15C, clauses (1) through (7), inclusive, the Issuer
shall or, if not so required, the Issuer may, in lieu of required deposits of Gross
Revenues, make monthly withdrawals from each account in the Improvement Fund
and apply such moneys to the Sinking Fund to be used solely for the purposes of the
Sinking Fund; provided that the aggregate amount of such withdrawals from each
account in any Fiscal Year does not exceed the sum of the Allowable Impact Fees for
each series of Bonds for such Fiscal Year. Moneys on deposit in each account in the
Improvement Fund in excess of the Allowable Impact Fees in each Fiscal Year shall be
used by the Issuer for any lawful purpose. Pending their application, all Impact Fees
on deposit in the Improvement Fund may be invested and reinvested in Authorized
Investments maturing, in the case of Allowable Impact Fees, at the times and in the
amounts such moneys are required or intended to be transferred to the Sinking Fund,
and in the case of other Impact Fees, at such time as the Issuer shall determine. The
income on such investments shall remain in the Improvement Fund and be applied for
any lawful purpose.
Y. In the event that and so long as any Parity Bonds remain
outstanding, all of the covenants contained in the Original Resolution shall be
applicable to the 1993 Bonds and all Additional Parity Bonds.
SECTION 16. FUNDS AND ACCOUNTS. The cash required to be
accounted for in each of the funds and accounts established herein shall be deposited
In separate and segregated bank accounts, and adequate accounting records shall be
La-06/02/93-3368-MthRes -37-
maintained to reflect and control the restricted allocation of the cash on deposit
therein for the various purposes of such funds as herein provided.
The designation and establishment of the various funds in and by this
Resolution shall not be construed to require the establishment of any completely
independent, self -balancing funds as such tern is commonly defined and used in
governmental accounting, but rather is intended solely to constitute an earmarking of
certain revenues and assets of the System for certain purposes and to establish
certain priorities for application of such revenues and assets as herein provided.
SECTION 17. TAX CODE. The Issuer at all relevant times while the
Bonds are outstanding will comply with the requirements of the Tax Code in order that
interest on the Bonds shall be excluded from gross income for federal income tax
purposes.
SECTION 18. DEFEASANCE. If, at any time, the Issuer shall have paid,
or shall have made provision for payment of, the principal, interest. Amortization
Installments and redemption premiums, if any, with respect to all or any of the Bonds
and all rebate payments, if any, required under the Tax Code, with respect to the
Bonds to be defeased, then, and in that event, with respect to the Bonds to be
defeased, the pledge of and lien on the Pledged Funds, and all other covenants and
pledges made in this Resolution in favor of the Owners of such Bonds shall no longer
be in effect. For purposes of the preceding sentence, deposit of cash and/or Federal
Securities in irrevocable trust with a banking institution or trust company, for the sole
benefit of the Owners of the Bonds to be defeased, in respect to which such Federal
Securities, the principal and interest received will be sufficient to make timely
payment of the principal, interest, Amortization Installments and redemption
premiums, if any, on such Bonds, shall be considered "provision for payment".
Nothing herein shall be deemed to require the Issuer to call any of the outstanding
Bonds for redemption prior to maturity pursuant to any applicable optional
redemption provisions, or to impair the discretion of the Issuer in determining whether
to exercise any such option for early redemption. Payment of all rebate payments
required under the Tax Code may be evidenced by an opinion of counsel rendered to
the Issuer by nationally recognized bond counsel.
SECTION 19. MODIFICATION OR AMENDMENT, No modification or
amendment of this Resolution or of any resolution amendatory hereof or
supplemental hereto which is materially adverse to the Owners of the Bonds may be
made without the consent in writing of the Owners of two-thirds or more in the
principal amount of the Bonds (Accreted Values for Capital Appreciation Bonds) then
outstanding; provided, however, that no modification or amendment shall permit a
change in the redemption provisions or maturity of such Bonds or a reduction in the
rate of interest thereon or in the amount of the principal obligation thereof or affecting
the promise of the Issuer to pay the principal of and interest on the Bonds as the same
shall become due from the Pledged Funds or reduce the percentage of the Owners of
the Bonds required to consent to any material modification or amendment hereof
without the consent of the Owners of all such Bonds.
SECTION 20. VALIDATION AUTHORIZED. The City Attorney and Bond
Counsel for the Issuer are authorized to prepare and file proceedings to validate the
1993 Bonds in the manner provided by law, if in their discretion the 1993 Bonds
should be validated.
LK-06/02/93-3366-AuLhae -38-
SECTION 21. CAPITAL APPRECIATION BONDS. For the purposes of (i)
receiving payment of the redemption price if a Capital Appreciation Bond is redeemed
prior to maturity, or (it) receiving payment of a Capital Appreciation Bond if the
principal of all Bonds is declared immediately due and payable under the provisions of
this Resolution. or (iii) computing the amount of the Maximum Bond Service
Requirement and of Bonds held by the registered owner of a Capital Appreciation Bond
in giving to the Issuer or the Trustee any notice, consent, request or demand pursuant
to this Resolution for any purpose whatsoever, the principal amount of a Capital
Appreciation Bond shall be deemed to be its Accreted Value.
SECTION 22. THE INSURER. So long as any of the 1993 Bonds are
insured by the Insurer, the following provisions shall apply to the 1993 Bonds:
A. Notices. Any and all notices required to be given by the Issuer,
the Bond Registrar, or the Owners of the 1993 Bonds shall be simultaneously given in
writing to the Insurer by registered or certified mail at the following address or such
other address as shall be provided in writing to the Issuer and the Bond Registrar:
Municipal Bond Investors Assurance Corporation
113 King Street
Armonk, New York 10504
Attention: Surveillance
B. Amendments. The Issuer will provide to the Insurer written
notice of all amendments of this Resolution which are not materially adverse to the
Owners of the Bonds. The Issuer will not adopt any modification or amendment of
this Resolution which is materially adverse to the Owners of the Bonds without first
obtaining the written consent of the Insurer and providing a copy thereof to Standard
& Poor's Corporation.
C. Additional Parity Bonds. The Issuer will not issue any Additional
Parity Bonds without first obtaining the written consent of the Insurer.
D. For purposes of Section 15.0 hereof, relating to default and
remedies hereunder, so long as the Insurer is not in default under its bond insurance
policy, the Insurer shall have the same rights as an Owner of the 1993 Bonds, and no
Owner of any insured 1993 Bond shall exercise any rights or remedies under this
Resolution without first obtaining the written consent of the Insurer.
E. The Issuer will appoint from time to time as Bond Registrar or
Paying Agent for the 1993 Bonds only commercial banks with trust powers.
F. Payments under the Bond Insurance Policy:
(1) In the event that, on the second Business Day, and again
on the Business Day, prior to the payment date on the 1993 Bonds, the Paying Agent
has not received sufficient moneys to pay all principal of and interest on the 1993
Bonds due on the second following or following, as the case may be, Business Day, the
Paying Agent shall immediately notify the Insurer or its designee on the same
Business Day by telephone or telegraph, confirmed in writing by registered or certified
mail, of the amount of the deficiency.
(2) If the deficiency is made up in whole or in part prior to or
on the payment date, the Paying Agent shall so notify the Insurer or its designee.
Lx-06/02/93-3366-Au[ha -39-
(3) In addition, if the Paying Agent has notice that any Owner
of an insured 1993 Bonds has been required to disgorge payments of principal or
interest on the 1993 Bond to a trustee in Bankruptcy or creditors or others pursuant
to a final Judgment by a court of competent Jurisdiction that such payment constitutes
a voidable preference to such Owner of an insured 1993 Bond within the meaning of
any applicable bankruptcy laws, then the Paying Agent shall notify the Insurer or its
designee of such act by telephone or telegraphic notice, confirmed In writing by
registered or certified mail.
(4) The Paying Agent is hereby irrevocably designated,
appointed, directed and authorized to act as attorney -in -Fact for Owners of the 1993
Bonds as follows:
(i) If and to the extent there is a deficiency in amounts
required to pay interest on the 1993 Bonds, the Paying Agent shall (a) execute and
deliver to Citibank, N.A., or its successors under the Policy (the 'Insurance Paying
Agent"), in form satisfactory to the Insurance Paying Agent, an instrument appointing
the Insurer as agent for such Owner in any legal proceeding related to the payment of
such interest and an assignment to the Insurer of the claims for interest to which
such deficiency relates and which are paid by the Insurer. M receive as designee of
the respective Owners (and not as Paying Agent) in accordance with the tenor of the
Policy payment from the Insurance Paying Agent with respect to the claims for Interest
so assigned, and (c) disburse the same to such respective Owners; and
(it) If and to the extent of a deficiency In amounts
required to pay principal of the Owners, the Paying Agent shall (a) execute and deliver
to the Insurance Paying Agent in form satisfactory to the Insurance Paying Agent an
instrument appointing the Insurer as agent for such Owner in any legal proceeding
relating to the payment of such principal and an assignment to the Insurer of any of
the 1993 Bonds surrendered to the Insurance Paying Agent of so much of the principal
amount thereof as has not previously been paid or for which moneys are not held by
the Paying Agent and available for such payment (but such assignment shall be
delivered only if payment from the Insurance Paying Agent is received), (b) receive as
designee of the respective Owners (and not as Paying Agent) in accordance with the
tenor of the Policy payment therefor from the Insurance Paying Agent, and (c) disburse
the same to such Owners.
(5) Payment with respect to claims for interest on and principal
of 1993 Bonds disbursed by the Paying Agent from proceeds of the Policy shall not be
considered to discharge the obligation of the Issuer with respect to such 1993 Bonds,
and the Insurer shall become the owner of such unpaid 1993 Bonds and claims for the
interest in accordance with the tenor of the assignment made to it under the
provisions of this subsection or otherwise.
(6) Irrespective of whether any such assignment is executed
and delivered, the Issuer and the Paying Agent hereby agree for the benefit of the
Insurer that:
(1) They recognize that to the extent the Insurer makes
payments, directly or Indirectly (as by paying through the Paying Agent), on account of
principal of or interest on the 1993 Bonds, the Insurer will be subrogated to the rights
of such Owners to receive the amount of such principal and interest from the Issuer,
LK-06/02/93-3368-Authaes -40-
with interest thereon as provided and solely from the sources stated in this Resolution
and the 1993 Bonds; and
(2) They will accordingly pay to the Insurer the amount
of such principal and Interest (Including principal and interest recovered under
subparagraph (ii) of the first paragraph of the Policy, which principal and interest shall
be deemed past due and not to have been paid), with interest thereon as provided in
this Resolution and the 1993 Bonds, but only from the sources and In the manner
provided herein for the payment of principal of and interest on the 1993 Bonds to
Owners, and will otherwise treat the Insurer as the owner of such rights to the amount
of such principal and interest.
G. In connection with the issuance of Additional Parity Bonds, the
Issuer shall deliver to the Insurer a copy of the disclosure document, if any, circulated
with respect to such Additional Parity Bonds.
H. The Insurer shall receive notice of the resignation or removal of the
Paying Agent and the appointment of a successor thereto.
1, The Insurer shall receive, on an annual basis, copies of the
Issuers audited financial statements and Annual Budget.
SECTION 23. SEVERABDdTY OF INVALED PROVISIONS. If any one or
more of the covenants, agreements, or provisions herein contained shall be held
contrary to any express provision of law or contrary to the polity of express law,
though not expressly prohibited, or against public policy, or shall for any reason
whatsoever be held invalid, then such covenants, agreements or provisions shall be
null and void and shall be deemed separable from the remaining covenants,
agreements or provisions and shall in no way affect the validity of any of the other
provisions hereof or of the Bonds issued hereunder.
SECTION 24. REPEALING CLAUSE. All ordinances or resolutions or
parts thereof of the Issuer in conflict with the provisions herein contained are, to the
extent of such conflict, hereby superseded and repealed.
SECTION 25. EFFECTIVE DATE. This Resolution shall take effect
immediately upon its adoption.
LK-06/02/93-3366-Autha. -41-
After Motion by Councilman Jones and Second by
Councilwoman Martin , the vote on this resolution was as
llows:
Mayor Jack H. Hayman, Sr. AYE
Councilman Kirk Jones AYE
Councilwoman Louise A. Martin AYE
Councilman Mike Hays ABSENT
Councilman David L. Mitchum AYE
PASSED AND DULY ADOPTED this 3rd day of June, 1993.
i1EST i'.. CITY COUNCIL OF THE
CITY OF EDGEWATER, FLORIDA
-',Sggan,',J adsworth ack H. H an, S . -
o J. G.ty; Ctk::r ayor
�A13 • APPROVED FOR FORM
ID' C,ORDRECTNESS
aniel U. Livermo e, Jr.
Bond Counsel
Livermore & Klein, P.A.
1750 Gulf Life Tower
Jacksonville, FL 32207
(904)399-0500
LK-06/02/93-3368-AuthRes
ESCROW DEPOSIT AGREEMENT
Between
CITY OF EDGEWATER, FLORIDA
And
Dated
1993
Exhibit A
To
Resolution
ESCROW DEPOSIT AGREEMENT
THIS ESCROW DEPOSIT AGREEMENT (this "Agreement') made and entered
into as of 1, 1993, by and between the CITY OF EDGEWATER,
FLORIDA (the "Issuer') and
Florida, as escrow agent (the "Escrow Agent'):
WITNESSETH:
WHEREAS, the Issuer has heretofore Issued and there is now outstanding
$ in aggregate principal amount of its Water and Sewer Revenue Bonds,
Series 1991 ("1991 Bonds'). The Issuer is desirous of refunding that portion of the
1991 Bonds as more particularly described in the Schedule entitled
" of the Schedules (collectively, the "Refunded
Bonds'); and
WHEREAS. in order to provide for the refunding of the Refunded Bonds, the
Issuer has issued Its Water and Sewer Revenue Refunding Bonds, Series 1993 (the
"Bonds'), in the aggregate principal amount of $ : and
WHEREAS, a portion of the proceeds derived from the sale of the Bonds and
certain other funds described herein will, be applied to the purchase of Federal
Securities (as such term is hereinafter defined), which Federal Securities will mature
and produce investment income and earnings at such times and In such amounts as
will be sufficient, together with other moneys deposited in the trust created herein and
held uninvested, to pay when due, at maturity and upon the redemption thereof as
provided herein, all of the principal of, redemption premium, and interest on the
Refunded Bonds; and
WHEREAS, In order to provide for the proper and timely application of the
moneys deposited in the trust created herein, the maturing principal amount of the
Federal Securities purchased therewith, and investment income and earnings derived
therefrom to the payment of the Refunded Bonds, it is necessary for the Issuer to enter
into this Agreement with the Escrow Agent on behalf of the holders from time to time
of the Refunded Bonds;
NOW, THEREFORE, the Issuer, In consideration of the foregoing and the
mutual covenants herein set forth and in order to secure the payment of the principal
of, redemption premium, and interest on all of the Refunded Bonds according to their
tenor and effect, does by these presents hereby grant, warrant, demise, release,
convey, assign, transfer, pledge, set over and confirm, unto the Escrow Agent, and to
its successors in the trust hereby created, and to it and its assigns forever, all and
singular the property hereinafter described to wit:
DIVISION I
All right, title and interest of the Issuer in and to $ ("Bond
Proceeds") derived from the proceeds of the Bonds deposited with the Escrow Agent
upon issuance and delivery of the Bonds and execution and delivery of this Agreement.
LH-06/02/934368-E.Dn pAg -1-
DIVISION D
All right, title and interest of the Issuer in and to the Federal Securities
purchased from the moneys described in Divisions I hereof and more particularly
described in the Schedule entitled " " of the Schedules and
all income derived therefrom or accruing thereto.
DIVISION III
Any and all other property of every kind and nature from time to time hereafter,
by delivery or by writing of any kind, conveyed, pledged, assigned or transferred to the
Escrow Agent as and for additional security hereunder for the benefit of the Refunded
Bonds by the Issuer or by anyone in its behalf to the Escrow Agent, which is hereby
authorized to receive the same at any time as additional security hereunder.
TO HAVE AND TO HOLD, all and singular, the Trust Estate (as such term is
hereinafter defined), including all additional property which by the terms hereof has or
may become subject to the encumbrances of this Agreement, unto the Escrow Agent,
and its successors and assigns, forever in trust, however, for the benefit and security
of the holders from time to time of the Refunded Bonds; but if the Refunded Bonds
shall be fully and promptly paid when due, whether at maturity or upon the
redemption thereof, in accordance with the terms thereof and hereof, then this
Agreement shall be and become void and of no further force and effect (except for
Section 3.06 hereof); otherwise the same shall remain in full force and effect, and upon
the trusts and subject to the covenants and conditions hereinafter set forth.
LK-06/02/83-3368-E.De Ag .2-
ARTICLE I
DEFIMTIONS
Section 1.01 Definitions. In addition to words and terms elsewhere
defined in this Agreement, the following words and terms as used in this Agreement
shall have the following meanings, unless some other meaning is plainly intended.
"Agreement" shall mean this Escrow Deposit Agreement.
"Bonds" shall mean the Issuer's Water and Sewer Revenue Refunding Bonds,
Series 1993.
"Bond Insurer" shall mean , its successors and assigns.
"Escrow Agent" shall mean Florida, or any
successor Escrow Agent.
"Escrow Deposit Trust Fund" shall mean the trust fund created and established
pursuant to Section 2.01 hereof.
"Escrow Securities" shall mean the Federal Securities listed in the Schedule
entitled " " of the Schedules.
"Federal Securities" shall mean noncallable direct obligations of, or obligations
the timely payment of the principal of and interest on which are fully and
unconditionally guaranteed by, the United States of America, for payment of which the
full faith and credit of the United States of America has been pledged, or Refcorp
interest strips, none of which permit redemption prior to maturity at the option of the
obligor.
"Issuer" shall mean the City of Edgewater, Florida.
"Refunded Bonds" shall mean any or all of the maturities of the Issuer's Water
and Sewer Revenue Bonds, Series 1991 ("1991 Bonds"), as listed in the Schedule
entitled " " of the Schedules.
"Refunded Bonds Paying Agent" shall mean Sun Bank, National Association,
Orlando, Florida, as paying agent for the Refunded Bonds.
"Schedules" shall mean the schedules comprising the schedules attached hereto
as Exhibit C.
"Substituted Securities" shall have the meaning set forth in Section 2.04 hereof.
'Trust Estate", "trust estate" or "pledged property" shall mean the property,
rights and interest of the Issuer which are subject to the lien of this Agreement, and
described in Divisions I and III, inclusive, of the granting clauses of this Agreement.
Words of the masculine gender shall be deemed and construed to include
correlative words of the feminine and neuter genders. Words importing the singular
number shall include the plural number and vice versa unless the context shall
otherwise indicate. The word "person" shall include corporations, associations,
natural persons and public bodies unless the context shall otherwise indicate.
Reference to a person other than a natural person shall Include its successors.
LK-05/02/93-3368-EwDepAg -3-
ARTICLE H
ESTABLISHMENT OF FUNDS; FLOW OF FUNDS
Section 2.01 Creation of Escrow Deposit Trust Fund and Deposit of
Moneys. There is hereby created and established with the Escrow Agent a special and
Irrevocable trust fund designated the Escrow Deposit Trust Fund (the "Escrow Deposit
Trust Fund"), to be held in the custody of the Escrow Agent and accounted for
separate and apart from other funds of the Issuer or of the Escrow Agent.
Concurrently with the execution of this Agreement, the Issuer herewith deposits
or causes to be deposited with the Escrow Agent and the Escrow Agent acknowledges
receipt of immediately available moneys in the amounts described in Divisions I and II
of the Trust Estate.
Section 2.02 Payment of Refunded Bonds. A. The Escrow Agent shall
apply the Bond Proceeds to purchase that portion of the Escrow Securities described
in the Schedule entitled " " of the Schedules,
and shall hold $ of the Bond Proceeds uninvested as cash.
B. The Escrow Agent shall apply the Sinking Fund moneys for the Refunded
Bonds to purchase that portion of the Escrow Securities described in the Schedule
entitled " — _ " of the Schedules.
C. The Escrow Agent shall apply the Reserve Account moneys for the
Refunded Bonds to purchase that portion of the Escrow Securities described in the
Schedule entitled " " of the Schedules.
D.
portion of
11
The Escrow Agent shall apply the Issuer contribution to purchase that
the Escrow Securities described in the Schedule entitled
" of the Schedules.
E. The Issuer represents that the Escrow Securities will mature in principal
amounts and earn interest and income at such times, all as described in the Schedule
entitled " " of the Schedules, so as to provide moneys
which, together with the amounts deposited in the Escrow Deposit Trust Fund held as
cash, will be sufficient to pay all of the principal of, redemption premium, and interest
on the Refunded Bonds when due and payable In accordance with the schedule of
payments described in the Schedule entitled "
of the Schedules. Notwithstanding the foregoing, if the amounts deposited in the
Escrow Deposit Trust Fund are insufficient to make said payments of principal,
redemption premiums and interest, the Issuer shall deposit into the Escrow Deposit
Trust Fund the amount of any deficiency immediately upon notice from the Escrow
Agent.
Section 2.O3 Irrevocable Trust Created. The deposit of moneys, the
Escrow Securities or other Federal Securities or other permitted investments
hereunder in the Escrow Deposit Trust Fund shall constitute an irrevocable deposit of
said moneys and Federal Securities for the benefit of the holders of the Refunded
Bonds, except as provided herein. The holders of the Refunded Bonds shall have an
express lien on all moneys and principal of and earnings on the Escrow Securities or
other Federal Securities or other permitted investments hereunder described in the
Escrow Deposit Trust Fund until applied in accordance with the Agreement. The
moneys deposited in the Escrow Deposit Trust Fund and the matured principal of the
Escrow Securities or other Federal Securities or other permitted investments
LK-06/02/93-3368.ExDepAg .4-
hereunder and the interest thereon shall be held in trust by the Escrow Agent, and
shall be transferred in the necessary amounts as hereinafter set forth, to the
appropriate Refunded Bonds Paying Agent for the Refunded Bonds, for the payment of
the principal of, redemption premium, and Interest on the Refunded Bonds as the
same become due and payable as more specifically set forth in the Schedule entitled
11 " of the Schedules. To the extent any moneys held
uninvested are not insured by the Federal Deposit Insurance Corporation, such
moneys shall be fully collateralized by Federal Securities; provided, however, the
Escrow Agent shall be under no obligation to collateralize uninvested funds except as
directed by the Issuer.
Section 2.04 Purchase of Federal Securities. The Escrow Agent is
hereby directed Immediately to purchase the Escrow Securities, applying for such
purpose the Trust Estate as set forth in Section 2.02 hereof. The Escrow Agent shall
purchase the Escrow Securities solely from the moneys deposited in the Escrow
Deposit Trust Fund. The Escrow Agent shall apply the moneys deposited in the
Escrow Deposit Trust Fund and the Escrow Securities or other Substituted Securities
purchased therewith, together with all income or earnings thereon, in accordance with
the provisions hereof. The Escrow Agent shall have no power or duty to invest any
moneys held hereunder or to make substitutions of the Escrow Securities held
hereunder or to sell, transfer or otherwise dispose of the Escrow Securities held
hereunder except as expressly provided In this Agreement.
If so directed by the Issuer on the date hereof, the Escrow Agent shall accept, in
substitution for any of the Escrow Securities, Federal Securities which are not subject
to redemption prior to maturity (the "Substituted Securities') and the principal of and
the interest on which, together with the principal of and interest on the Escrow
Securities for which no substitution is made and moneys held uninvested by the
Escrow Agent, will meet the requirements of payment of all principal of, redemption
premium, and interest on the Refunded Bonds as provided herein, as shown by the
verification report described below. If further directed by the Issuer, the Escrow Agent
shall exchange Substituted Securities for a corresponding amount of Escrow
Securities for which such Substituted Securities were substituted on any date prior to
the maturity date of the Substituted Securities to be exchanged; provided that no such
exchange shall be made (except as provided in Section 2.06 hereof) unless no
payments of principal of or interest on such Substituted Securities or Escrow
Securities to be exchanged for the Substituted Securities have been made on or prior
to the date of such exchange.
The substitution of Substituted Securities for Escrow Securities may be effected
only if there shall have been provided to the Escrow Agent by the Issuer: a written
direction to carry out such substitution and (1) an independent verifleation by a
nationally recognized independent certified public accounting firm concerning the
adequacy of the Substituted Securities with respect to principal and the interest and
redemption premium thereon and any other moneys or securities held for such
purpose to meet the principal and interest when due of the Refunded Bonds as
contemplated by the Schedules; (2) written consent of the Bond Insurer which consent
shall not be unreasonably withheld; and (3) an opinion from nationally recognized
bond counsel to the effect that the disposition and substitution or purchase of such
securities will not, under the statutes, rules and regulations then in force and
applicable to the Refunded Bonds and the Bonds, affect adversely the exclusion from
gross income for federal Income tax purposes of Interest on the Refunded Bonds and
the Bonds.
LK-06/02/93-3368-Eec pAg -5-
Section 2.05 No Reinvestment of Funds Received. The Escrow Agent
shall not reinvest any portion of the amounts received from the maturing principal of
or interest on the Escrow Securities, except as provided in Section 2.06 or 2.08 hereof.
Section 2.06 Substitution of Certain Federal Securities.
Notwithstanding any other provisions of this Agreement, at the written request of the
Issuer and upon compliance with the conditions hereinafter stated, the Escrow Agent
shall have the power to and shall, in simultaneous transactions, sell, transfer,
otherwise dispose of or request the redemption of the Escrow Securities or other
Federal Securities held hereunder and to substitute therefor other Federal Securities,
subject to the condition that such obligations together with the earnings thereon and
moneys held uninvested hereunder shall (based on a representation to such effect by
the Issuer) be sufficient to pay, when due, the principal of, redemption premium and
interest on the Refunded Bonds as the same become due and payable as set forth in
the Schedule entitled " " of the Schedules. The Escrow
Agent shall purchase such Substituted Securities with the proceeds derived from the
maturity, sale, transfer, disposition or redemption of the Federal Securities held
hereunder or from other moneys available. The transactions referenced in this Section
may be effected only If there shall have been delivered to the Escrow Agent by the
Issuer: (1) a verification by a nationally recognized independent certified public
accounting firm concerning the adequacy of principal and interest payments on such
substituted obligations and any other moneys or securities held for such purpose to
meet the principal, redemption premium, and interest when due of the Refunded
Bonds in accordance with the Schedule entitled " "
of the Schedules; (2) written consent of the Bond Insurer which consent shall not be
unreasonably withheld; and (3) an opinion from nationally recognized bond counsel to
the effect that the disposition and substitution or purchase of such securities will not
adversely affect the exclusion from gross income for federal income tax purposes of the
interest on the Refunded Bonds and the Bonds.
If securities are substituted pursuant to this Section 2.06, any surplus moneys
(as shown in the report of the certified public accountant referred to above) resulting
from the sale, transfer, other disposition or redemption of the Federal Securities held
hereunder and the substitution therefor of direct obligations of, or obligations the
principal of and interest on which are fully guaranteed by, the United States of
America, shall be released to the Issuer from the trust fund created and established
hereunder and used for any other lawful purpose which, in the opinion of nationally
recognized bond counsel, will not adversely affect the exclusion from gross income for
federal income tax purposes of the interest on the Refunded Bonds and the Bonds.
and, after the release of such funds to the Issuer, the Escrow Agent shall have no
further responsibility for such funds.
Section 2.07 Tranafers from Escrow Deposit Trust Fund. As the
principal of the Escrow Securities shall mature and be paid, and the investment
income and earnings thereon are paid, the Escrow Agent shall, no later than each
interest, principal payment and redemption date for the Refunded Bonds, as specified
in the Schedules, transfer from the Escrow Deposit Trust Fund to the appropriate
Refunded Bonds Paying Agent for the Refunded Bonds amounts sufficient to pay the
principal of, redemption premium, and interest on the Refunded Bonds coming due, as
specified in the Schedules.
Section 2.08 Investment of Certain Moneys Remaining in Escrow
Deposit Trust Fund. Subject to the provisions of Sections 2.04. 2.05 and 2.06 hereof,
the Escrow Agent shall invest and reinvest, but only at the written direction of the
Issuer, in Federal Securities any moneys remaining from time to time in the Escrow
LK-06/02/93-3369-E-c PA9 .6-
Deposit Trust Fund until such time that they are needed. Such moneys shall be
reinvested in Federal Securities specified by the Issuer maturing on such dates and
payable at such interest rates as the Escrow Agent shall be directed in writing to
invest by the Issuer, which periods or interest rates shall be set forth in an opinion
from a nationally recognized bond counsel to the Issuer, which opinion shall also be to
the effect that such reinvestment of such moneys will not, under the statutes, rules
and regulations then in force and applicable to the Refunded Bonds and the Bonds,
affect adversely the exclusion from gross income for federal income tax purposes of
interest on such Refunded Bonds and the Bonds and that such investment is not
inconsistent with the statutes and regulations applicable to the Refunded Bonds and
the Bonds or the terms of the ordinances and resolutions pursuant to which the
Refunded Bonds and the Bonds were issued. Any interest income resulting from the
reinvestment of moneys pursuant to this Section 2.08 and not needed for the payment
to the Refunded Bonds as the same become due or payable, whether at maturity or
upon the redemption thereof, as more specifically set forth in the Schedules, shall be
applied in accordance with Section 2.09 hereof., provided, that any such interest
income shall immediately be released to the Issuer from the trust fund created and
established hereunder and used for any lawful purpose which, in the opinion of
nationally recognized bond counsel, will not adversely affect the exclusion from gross
income for federal income tax purposes of the interest on the Refunded Bonds and the
Bonds if there shall have been obtained a verification by a nationally recognized
independent certified public accounting firm concerning the adequacy of principal and
interest payments on the Federal Securities held hereunder (other than such interest
Income to be released to the Issuer) to meet the principal, redemption premium, and
interest when due of the Refunded Bonds in accordance with the Schedules.
Section 2.09 Transfer of Funds After AB Payments Required by this
Agreement are Made. After all of the transfers by the Escrow Agent to the Refunded
Bonds Paying Agents for payment of the principal of, redemption premium, and
interest on the Refunded Bonds have been made, all remaining moneys and securities,
together with any income and interest thereon, in the Escrow Deposit Trust Fund,
shall be transferred to the Issuer by the Escrow Agent and shall be applied by the
Issuer for any lawful purpose; provided, however, that no such transfer (except
transfers made in accordance with Section 2.06 and 2.08 hereof) to the Issuer shall be
made until all of the principal of, redemption premium, and interest on the Refunded
Bonds have been paid.
Section 2.10. Notice of Defeasance and Redemption of 1991 Bonds.
The Escrow Agent shall, at the expense of the Issuer, as soon hereafter as practicable,
but in any event within thirty (30) days after the delivery of the Bonds, cause a copy of
the Notice of Defeasance, describing the bonds to be defeased with monies deposited in
escrow under this Agreement, which is attached hereto as Exhibit A to be mailed to
the Registered Owners of the Refunded Bonds in the manner provided for redemption
of bonds. The Issuer hereby exercises its option to redeem the 1991 Bonds maturing
on and after October 1, 2002 on the redemption date of October 1, 2001. The Escrow
Agent is hereby irrevocably instructed to deliver to the Refunded Bonds Paying Agent
for the 1991 Bonds, not later than August 1. 2001, the Form of Notice of Redemption
attached hereto as Exhibit B for publication and mailing to the applicable Municipal
Insurer and to all Registered Owners of the 1991 Bonds not more than forty five (45)
and not less than thirty (30) days prior to the redemption date. The Issuer agrees not
to exercise any right to redeem 1991 Bonds at its option, except as provided in Exhibit
B attached hereto.
LK-06/02/93-3368-F.DepA9 -%-
ARTICLE III
CONCERNING THE ESCROW AGENT
Section 3.01 Appointment of Escrow Agent. The Issuer hereby
appoints as Escrow
Agent under this Agreement and by execution of this Agreement, the Escrow Agent
accepts the duties and obligations as Escrow Agent hereunder. The Escrow Agent
further represents that it has all requisite power, and has taken all corporate actions
necessary, to execute and perform its duties hereunder.
Section 3.02 Liability of Escrow Agent. The Escrow Agent shall not be
liable for the accuracy of the calculations as to the sufficiency of moneys and of the
principal amount of the securities and the earnings thereon to pay the Refunded
Bonds. So long as the Escrow Agent applies any moneys, securities and the Interest
earnings therefrom to pay the Refunded Bonds as provided herein, and complies fully
with the terms of this Agreement, the Escrow Agent shall not be liable for any
deficiencies in the amounts necessary to pay the Refunded Bonds caused by such
calculations.
The Escrow Agent shall have no lien, security interest or right of set-off
whatsoever upon any of the moneys or investments In the Escrow Deposit Trust Fund
for the payment of fees and expenses for services rendered by the Escrow Agent under
this Agreement.
Section 3.03 Permitted Acts. The Escrow Agent and its affiliates may
become the owner of or may deal in the Refunded Bonds as fully and with the same
rights as if it were not the Escrow Agent.
Section 3.04 Successor Escrow Agent. The Escrow Agent, at the time
acting hereunder, may at any time resign and be discharged from the trusts hereby
created by giving not less than sixty (60) days written notice to the Issuer and, at the
expense of the Issuer, publishing notice hereof, specifying the date when such
resignation will take effect in a newspaper printed in the English language and of
general circulation in the Issuer, such publication to be made at least once not less
than sixty (60) days prior to the date when the resignation is to take effect, but no
such resignation shall take effect unless a successor Escrow Agent shall have been
appointed by the Issuer as hereinafter provided and such successor Escrow Agent
shall have accepted such appointment, in which event such resignation shall take
effect immediately upon the appointment and acceptance of a successor Escrow Agent.
In the event the Escrow Agent hereunder shall resign or be removed, or be
dissolved, or shall be in the course of dissolution or liquidation, or otherwise become
incapable of acting hereunder, or in case the Escrow Agent shall be taken under the
control of any public officer or officers, or of a receiver appointed by a court, a
successor may be appointed by either the Issuer or the holders of a majority in
principal amount of the Refunded Bonds then outstanding by an instrument or
concurrent instruments in writing, signed by the Issuer or by such holders, or by their
attorneys in fact, duly authorized in writing: provided, nevertheless, that in any such
event, the Issuer shall appoint a temporary Escrow Agent to fill such vacancy until a
successor Escrow Agent shall be appointed by the holders of a majority in principal
amount of the Refunded Bonds then outstanding in the manner above provided, and
any such temporary Escrow Agent so appointed by the Issuer shall immediately and
without further act be superseded by the Escrow Agent so appointed by such holders.
LK-08/02/93-3388-E.DepAg -8-
The Issuer shall publish notice of any such appointment made by it at the time and in
the manner described in the first paragraph of this Section.
In the event that no appointment of a successor Escrow Agent or a temporary
successor Escrow Agent shall have been made pursuant to the foregoing provisions of
this Section within sixty (60) days after written notice of the resignation of the Escrow
Agent has been given to the Issuer, the holder of any of the Refunded Bonds or any
retiring Escrow Agent may apply to any court of competent Jurisdiction for the
appointment of a successor Escrow Agent and such court may thereupon, after such
notice, if any, as it shall deem proper, appoint such successor Escrow Agent.
No successor Escrow Agent shall be appointed unless such successor Escrow
Agent shall be a corporation with trust powers organized under the banking laws of
the United States or any state, and shall be bound by this Agreement and have at the
time of appointment capital and surplus of not less than $25,000,000 or is a member
of a bank group or bank holding company with aggregate capital and surplus of not
less than $25,000,000.
Every successor Escrow Agent appointed hereunder shall execute, acknowledge
and deliver to its predecessor and to the Issuer, an instrument in writing accepting
such appointment hereunder and thereupon such successor Escrow Agent, without
any further act, deed or conveyance, shall be bound by this Agreement and become
fully vested with all the rights, immunities, powers, trusts, duties and obligations of its
predecessor; but such predecessor shall, nevertheless, on the written request of such
successor Escrow Agent or the Issuer, execute and deliver an instrument transferring
to such successor Escrow Agent all the estates, properties, rights, powers and trust of
such predecessor hereunder; and every predecessor Escrow Agent shall deliver all
securities and moneys held by it hereunder to its successor; provided, however, that
before any such delivery shall be made the fee of the retiring or removed Escrow Agent
set forth in Section 3.05 hereof if fully paid in advance shall be pro rats. refunded by
such Escrow Agent to the Issuer and the Issuer shall reimburse the retiring or
removed Escrow Agent for any expenses it has incurred. Such proration shall be
computed based upon the time such Escrow Agent served as such compared to the
period from the date hereof until the Anal maturity or redemption of the Refunded
Bonds. Should any transfer, assignment or instrument in writing from the Issuer be
required by any successor Escrow Agent the estates, rights, powers and duties hereby
vested or intended to be vested in the predecessor Escrow Agent, any such transfer,
assignment and instruments in writing shall, on request, be executed, acknowledged
and delivered by the Issuer.
Any corporation into which the Escrow Agent, or any successor to it in the
trusts created by this Agreement, may be merged or converted or with which it or any
successor to it may be consolidated, or any corporation resulting from any merger,
conversion, consolidation or reorganization to which the Escrow Agent or any
successor to it shall be a party shall be the successor Escrow Agent under this
Agreement without the execution or filing of any paper or any other act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
Section 3.05 Payment to Escrow Agent. The Escrow Agent shall be
entitled to a fee in full payment for its services rendered hereunder in the amount of
$ payable by the Issuer upon execution and delivery of this Agreement. In
addition, the Escrow Agent shall be entitled to payment and/or reimbursement by the
Issuer for all advances, counsel fees and other expenses reasonably and necessarily
made or incurred by it in connection with such services. Such advances, counsel fees
and other expenses payable by the Issuer upon execution and delivery of this
LK-06/02/93-3366-E.DepAg -9-
Agreement shall not exceed $ . Payment shall be made from funds legally
available to the Issuer and, as set forth in Section 3.02 hereof, the Escrow Agent shall
have no claim against any amounts held hereunder in the Escrow Deposit Trust Fund.
Section 3.06 Indemnification. To the extent permitted by law, the
Issuer shall indemnify and exonerate, save and hold harmless the Escrow Agent from
and against any and all claims, demands, expenses (including counsel fees and
expenses) and liabilities of any and every nature which the Escrow Agent may sustain
or incur or which may be asserted against the Escrow Agent as a result of any action
taken or omitted by the Escrow Agent hereunder without bad faith, negligence or
willful misconduct. At any time, the Escrow Agent may apply to the Issuer for written
instructions with respect to any matter arising under this Agreement and shall be fully
protected in acting in accordance with such instructions. In addition, the Escrow
Agent may, as reasonably necessary, consult counsel to the Issuer or its own counsel,
at the expense of the Issuer, and shall be deemed not to have acted in bad faith with
respect to any action taken or omitted in good faith in accordance with such advice or
opinion of counsel to the Issuer or its own counsel. The provisions of this Section 3.06
shall survive the termination of this Agreement.
LK- /02/93-3366-E.MpAg -10-
ARTICLE IV
Section 4.01 Amendments to this Agreement. This Agreement is made
for the benefit of the Issuer and the holders from time to time of the outstanding
Refunded Bonds and it shall not be repealed, revoked, altered or amended without the
written consent of all such holders, the Escrow Agent and the Issuer: provided.
however, that the Issuer and the Escrow Agent may, with the prior written consent of
Bond Insurer, but without the consent of, or notice to, such holders, enter into such
agreements supplemental to this Agreement as shall not adversely affect the rights of
such holders and shall not be Inconsistent with the terms and provisions of this
Agreement, for any one or more of the following purposes:
(a) to cure any ambiguity or formal defect or omission in this Agreement:
and
(b) to grant to or confer upon the Escrow Agent for the benefit of the holders
of the Refunded Bonds any additional rights, remedies, powers or authority that may
lawfully be granted to or conferred upon the Escrow Agent.
The Escrow Agent shall be entitled to rely exclusively upon an unqualified
opinion of nationally recognized attorneys on the subject of municipal bonds with
respect to compliance with this Section 4.01,
Section 4.02 Severability. If any one or more of the covenants or
agreements provided in this Agreement on the part of the Issuer or the Escrow Agent
to be performed should be determined by a court of competent jurisdiction to be
contrary to law, such covenant or agreement shall be deemed and construed to be
severed from the remaining covenants and agreements herein contained and shall in
no way affect the validity of the remaining provisions of this Agreement.
Section 4.03 Agreement Binding. All the covenants, promises and
agreements in this Agreement contained by or on behalf of the Issuer or by or on
behalf of the Escrow Agent shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed or not.
Section 4.04 Termination. Except as provided in Section 3.06 hereof,
this Agreement shall terminate when all transfers and payments required to be made
by the Escrow Agent under the provisions hereof shall have been made.
Section 4.08 Ezecution by Counterparts. This Agreement may be
executed in several counterparts, all or any of which shall be regarded for all purposes
as one original and shall constitute and be but one and the same instrument.
Section 4.06 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
La-06/02/83-3368-EecmepAg -11-
IN WITNESS WIIiREOF, each of the parties hereto has caused this Agreement
to be executed by Its duty authorized officers and the corporate seal of the Issuer has
been hereunto affixed and attested as of the date first above written.
CITY OF EDGEWATER, FLORIDA
By:
(SEAL)
Attest:
City Clerk
Mayor
as Escrow Agent
By:
Authorized Officer
L-06/02/93-3368-E.DepAg -12-
FORM OF NOTICE OF PARTIAL. DEFEASANCE
CERTAIN
CITY OF EDGEWATER, FLORIDA
WATER AND SEWER REVENUE BONDS,
SERIES 1991
DATED AUGUST 1, 1991
MATURING ON AND AFTER OCTOBER 1, 2002
NOTICE IS HEREBY GIVEN that for the payment of the interest on and the
principal and redemption price of the bonds indicated below which mature on or after
October 1, 2002 (the "Defeased Bonds"). there have been deposited in escrow with
Florida, as Escrow Agent,
refunding bond proceeds and other funds which have been invested in obligations
consisting of securities which are direct obligations of the United States of America.
The scheduled principal payments to be .received from such obligations,
together with interest income therefrom, have been calculated to be adequate to pay
the Interest on and the principal and redemption price of the Defeased Bonds as such
become due through October 1, 2001 and to redeem on October 1, 2001 the then
outstanding principal of the Defeased Bonds maturing thereafter.
The Defeased Bonds are described as follows:
Bond Principal Interest Maturity
Numbers Amount Hats Date CWID
6.50% October 1, 2002
6.60% October 1, 2003
6.70% October 1, 2004
6.80% October 1, 2005
6.85% October 1, 2006
6.75% October 1, 2013
7.00% October 1, 2021
Dated this day of , 1993.
CITY OF EDGEWATER, FLORIDA
By:
Mayor
LK-06/02/93-3368-ESCDepA9 -13-
EXHIBIT B
FORM OF NOTICE OF REDEMPTION
CERTAIN
CITY OF EDGEWATER, FLORIDA
WATER AND SEWER REVENUE BONDS,
SERIES 1991
DATED AUGUST 1, 1991
MATURING ON AND AFTER OCTOBER 1, 2002
NOTICE IS HEREBY GIVEN that pursuant to the provisions of Resolution
No. 91-R-42 of the Council of the City of Edgewater, Florida, adopted on July 15,
1991. as supplemented, under which the captioned bonds (the 'Bonds") were issued.
those Bonds numbered below of the outstanding Bonds maturing on and after October
1, 2002 have been called for redemption prior to maturity on October 1, 2001 (the
"Redemption Date"), at a redemption price equal to 102% of the par value of the Bonds
to be redeemed, plus accrued interest to the Redemption Date. The outstanding
Bonds to be redeemed are as follows:
Bond Principal Interest Maturity
Numbers Amount Rate Date CoalD
To Come
6.50%
October 1, 2002
6.60%
October 1, 2003
6.70%
October 1, 2004
6.80%
October 1, 2005
6.85%
October 1, 2006
6.75% October 1, 2013
7.00% October 1. 2021
Payment of the redemption price will be made on or after the Redemption Date,
upon presentation and surrender of the Bonds to be redeemed at the principal
corporate trust office of Sun Bank, National Association, 225 East Robinson Street,
Suite 350, Orlando, Florida 32801, Attn: , as paying agent for the
Bonds. Interest on the Bonds hereby called for redemption will cease to accrue on and
after the Redemption Date.
Dated: 1, 2001
SUN BANK, NATIONAL ASSOCIATION
0
LK-06/02/93-3368-E.DepAg -14-
Its: