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RESOLUTION NO. 2002-R-07
A RESOLUTION PROVIDING FOR THE ISSUANCE OF A
REVENUE NOTE, SERIES 2002A, OF THE CITY OF
EDGEW ATER, FLORIDA, IN THE PRINCIPAL AMOUNT OF
$2,540,000 TO FINANCE CERTAIN GENERAL FUND
PROJECTS OF THE CITY; AUTHORIZING THE
EXECUTION AND DELIVERY OF A HEDGE AGREEMENT;
COVENANTING TO BUDGET AND APPROPRIATE FROM
CURRENT REVENUES FOR THE PAYMENT OF THE NOTE
AND THE HEDGE AGREEMENT; CONTAINING OTHER
PROVISIONS RELATING TO THE NOTE; ESTABLISHING
AN INTEREST RATE; AWARDING THE NOTE TO THE
PURCHASER AT NEGOTIATED SALE; AND PROVIDING
AN EFFECTIVE DATE.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF EDGEW A TER,
FLORIDA, that:
SECTION 1. AUTHORITY FOR THIS RESOLUTION. This Resolution is adopted
pursuant to the provisions of the Act (defined below).
SECTION 2. DEFINITIONS. The following terms shall have the following meanings
herein, unless the text otherwise expressly requires:
A. "Act" means Chapter 166, Florida Statutes, Article VIII, Florida Constitution and
other applicable provisions of law.
B. "Bank" means Bank of America, N.A.
C. "Clerk" means the City Clerk of the Issuer.
D. "Code" means the Internal Revenue Code of 1986, as amended, and any rules or
regulations promulgated thereunder.
E. "Council" means the City Council of the Issuer.
F. "Event of default" means the occurrence of one or more of the following: (i) failure
by the Issuer to pay, when due, any principal, interest or other amount due under the Note, any
Hedge Agreement or any other obligation now existing of hereafter arising, between the Issuer and
the Bank, after the expiration of any applicable cure period; (ii) the occurrence of any default under
the Note, any Hedge Agreement, this Resolution or any other document executed in connection with
the Note and this Reso1ution;(iii) the failure by the Issuer to comply with any agreement, term,
covenant or condition of this Resolution, the Note, any Hedge Agreement or any other document
executed in connection herewith; (iv) if any representation or warranty made by the Issuer in this
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Resolution, the Note or any other document executed in connection herewith is false or misleading
in any material respect on the date made or at any time thereafter; (v) the liquidation or dissolution
of the Issuer, the voluntary or involuntary filing or commencement of a petition or case seeking
reorganization, arrangement, or readjustment ofIssuer's debts or any other relief under bankruptcy
or similar laws, the voluntary or involuntary application or appointment of a receiver for Issuer or
its property; (vi) the Bank reasonably determines that a material adverse change has occurred in the
financial condition of the Issuer; or (vii) any security interest or other lien intended to secure the
indebtedness created pursuant hereto shall be or become invalid and unenforceable.
G. "Fiscal Year" means the fiscal year of the Issuer ending on each September 30.
H. "Hedge Agreement" means each agreement between the Issuer and the Bank, or any
affiliate of the Bank, whether now existing or hereafter entered into, that provides for an interest rate
or commodity swap, cap, floor, collar, forward foreign exchange transaction, currency swap, cross-
currency rate swap, currency option, or any combination of, or option with respect to, these or
similar transactions, for the purpose of hedging the Issuer's exposure to fluctuations in interest rates,
currency valuations or commodity prices.
I.
the Note.
"Holder" or "Noteholder" means the Bank or any subsequent holder or owner of
J.
Statutes.
"Interest Rate Limit" means the interest rate limit under Section 215.84, Florida
K.
"Issuer" means City of Edgewater, Florida.
L. "Non-Ad Valorem Funds" means all legally available funds of the Issuer derived
from any source whatsoever other than ad valorem taxation or real and personal property, which are
legally available to make the payments required herein, but only after provision has been made by
the Issuer for the payment of services and programs which are for essential public purposes affecting
the health, welfare and safety of the inhabitants of the Issuer or which are legally mandated by
applicable law.
M. "Note" means the $2,540,000 Revenue Note, Series 2002A, authorized by this
Resolution.
N. "Paying Agent and Registrar" means such bank or trust company, within or
without the State of Florida, which may be approved by the Council prior to the issuance of the
Note, to be the agent of the Council for payment of the principal of and interest on the Note and for
maintenance of the registration books of the Council with respect to the exchange and transfer of
the Note; or, if no such bank or trust company is appointed, means the Clerk.
O. "Pledged Revenues" means: (i) all proceeds of the Notes pending the application
thereof, and (ii) moneys budgeted and appropriated (including Non-Ad Valorem Funds) pursuant
to Section 14 hereof.
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P. "Project" means the project to be financed with the proceeds of the Note, as
described on Exhibit A hereto, including the budget therefor.
Q. "Purchase Price" means the face amount of the Note.
SECTION 3. FINDINGS. It is hereby found, determined and declared as follows that:
A. The financing ofthe Project as described in a proposal letter from the Bank to the
Issuer dated January 9, 2002 (the "Proposal Letter") is in the public interest. The Council hereby
ratifies the acceptance of the Proposal Letter by the various officers of the Issuer, as applicable.
B. It is necessary, desirable and in the best interest of the Issuer and its inhabitants that
the Project be undertaken and that the Note be issued to fund the Project, in order to obtain the
benefits of the Project. The Project is appropriate to the needs and circumstances of, and shall serve
a public purpose by advancing the economic prosperity, the public health, or the general welfare of
the State and its people. The Issuer will be able to cope satisfactorily with the impact of such Project
and will be able to provide, or cause to be provided when needed, the public facilities, including
utilities and public services, that will be necessary for the construction, operation, repair and
maintenance of the Project and on account of any increases in population or other circumstances
resulting therefrom.
C. The Council deems it necessary, desirable and in the best interest of the Issuer and
its inhabitants that the Pledged Revenues be pledged to the payment of the principal and interest on
the Note and the Hedge Agreement. No part of the Pledged Revenues has been or will be pledged
or encumbered in any other manner without the consent of the Noteholder and pursuant to the
conditions herein.
D. The estimated Pledged Revenues to be derived in each Fiscal Year will be sufficient
to pay the principal of and the interest on the Note, as the same become due, together with all
amounts now or hereafter due under the Hedge Agreement.
E. The principal of and interest on the Note and all other payments provided for in this
Resolution or the Note will be paid solely from the sources herein provided in accordance with the
terms hereof; and no ad valorem taxing power of the Issuer will ever be exercised nor will any
Holder of the Note have the right to compel the exercise of such ad valorem taxing power to pay the
principal of or interest on the Note or to make any other payments provided for in this Resolution,
and the Note and the Hedge Agreement shall not constitute a lien upon any property of the Issuer,
except the Pledged Revenues.
F. Prior to adoption of this Resolution, significant changes have occurred in the
municipal bond market regarding interest rates on tax exempt obligations, which are favorable to
the Issuer.
G. Based upon all available information and advice, the Council has determined that it
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is in the best interest of the inhabitants of the Issuer to respond to these favorable market conditions
without undue delay.
H. There is insufficient time to respond to these favorable market conditions by offering
the Note for public sale.
I. A negotiated sale of the Note will result in the most favorable financing plan and is
in the best interest of the Issuer.
1. The Bank has, by written proposal, offered to purchase the Note at the Purchase
Price, at the interest rate set forth below, resulting in an average net interest cost rate less than the
Interest Rate Limit.
K. The Note will not be a "private activity bond" as defined in Section 141 of the Code.
L. The Council does not reasonably expect to issue (including issues "on behalf of' the
Issuer, as determined under Section 265(b )(3)(E) of the Code) tax-exempt obligations in excess of
$10,000,000 aggregate face amount in 2002.
M. The Issuer may have expended monies of the Issuer for Project purposes prior to the
issuance of the Note, and this Resolution is a declaration of official intent pursuant to United States
Treasury Regulation 1.150-2( e). The Council reasonably expects to reimburse eligible pre-issuance
expenditures of the Project with proceeds of the Note.
SECTION 4. RESOLUTION TO CONSTITUTE CONTRACT. In consideration of the
acceptance of the Note authorized to be issued hereunder by the Holder, this Resolution shall be
deemed to be and shall constitute a contract between the Issuer and such Holder. The covenants and
agreements herein set forth to be performed by the Council and the Issuer shall be for the benefit,
protection and security ofthe legal Holder of the Note.
SECTION 5. AUTHORIZATION OF NOTE AND PROJECT. The Council hereby
approves the Project. There is hereby authorized to be issued a Revenue Note, Series 2002A, of the
Issuer (the "Note"), in the principal amount of $2,540,000, in substantially the form of Exhibit B
hereto, with such changes and additions as the Mayor, as Chairman of the Council, shall approve,
his signature thereon constituting conclusive evidence of such approval.
SECTION 6. DESCRIPTION OF NOTE AND HEDGE AGREEMENT.
A. The Note shall be issued in fully registered form, without coupons; shall be dated as
of the date of its delivery; shall be in the denomination of $2,540,000; shall bear interest on the
outstanding balance of the principal amount from time to time unpaid, at the rate set forth herein
(subject to adjustment as provided herein), shall be payable as to principal and interest as set forth
herein; and shall mature on September 30,2012.
B. Interest shall accrue on the outstanding principal balance of the Note as follows:
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(i) Interest shall initially accrue on the outstanding principal balance of the Note
at the Adjusted Libor Rate (as defined herein) in effect on the date of the Note. The rate of
interest shall be adjusted on each Interest Rate Adjustment Date (as defined herein) so that
interest shall accrue at the Adjusted Libor Rate for the Interest Period (as defined herein)
commencing on such Interest Rate Adjustment Date. For purposes of this paragraph, the
following terms shall have the following meanings:
(aa) "Adjusted Libor Rate" for each Interest Period shall mean a rate that
is equal to 63.7% of the applicable Libor Rate plus 0.90% per annum. The Libor
Rate for each Interest Period shall mean the offered rate for deposits in United States
dollars in the London Interbank market for a one month period which appears on the
Libor Rate Reference Page (as defined herein) as of 11 :00 a.m. (London time) on the
day that is two London Banking Days (as defined herein) preceding the first Banking
Business Day (as defined herein) of the Interest Period. Ifat least two such offered
rates appear on the Libor Rate Reference Page, the rate will be the arithmetic mean
of such offered rates. The Bank may, in its discretion, use rate quotations for daily
periods in lieu of quotations for substantially equivalent monthly periods.
(bb) "Banking Business Day" shall mean each day other than a Saturday,
a Sunday or any holiday on which commercial banks in Jacksonville, Florida are
closed for business.
(cc) "Interest Period" shall mean: (1) an initial period commencing on the
date of the Note and continuing through February 28, 2002; and (2) each period
thereafter commencing on each Interest Rate Adjustment Date and continuing
through the day immediately preceding the next Interest Rate Adjustment Date.
(dd) "Interest Rate Adjustment Date" shall mean the first day of March,
2002, and the first day of each calendar month thereafter.
(ee) "Libor Rate Reference Page" shall mean any of the following
reference pages or sources (as selected from time to time by the Bank in its
discretion): (aa) the Dow Jones Telerate Page 3750; (bb) the Reuters Screen LIBO
Page; or (cc) such other index or source as the Bank may in its sole discretion select
showing rates offered for United States dollar deposits in the London Interbank
market.
(ft) "London Banking Day" shall mean each day other than a Saturday,
a Sunday or any holiday on which commercial banks in London, England are closed
for business.
(ii) Interest shall be calculated on the basis of a 360 day year (based upon the
actual number of days elapsed).
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(iii) The total liability of the Issuer for payment of interest shall not exceed any
limitations imposed on the payment of interest by applicable usury laws. If any interest is
received or charged by any Holder of the Note in excess ofthat amount, the Issuer shall be
entitled to an immediate refund of the excess.
(iv) Upon the occurrence of an Event of Default hereunder, interest shall accrue
at the Default Rate hereinafter set forth notwithstanding the provisions of this section.
C. The Issuer shall pay installments of principal and interest under the Note as follows:
(i) The Issuer shall pay all accrued interest under the Note on the first day of each
calendar month, or if such date is not a business day for the Bank, the next succeeding
business day, during the term hereof commencing on April 1, 2002, and continuing on the
first day of each calendar month thereafter.
(ii) The Issuer shall pay annual principal installments of $254,000.00 each on
October 1 of each year, commencing on October 1, 2003 and continuing on October 1 of
each year thereafter during the term of the Note, through October 1, 2011.
(iii) The Issuer shall pay all remaining outstanding principal under the Note,
together with all then accrued and unpaid interest, on September 30, 2012.
D. The Note may be prepaid, in whole or in part, without penalty or fee (other than any
applicable fees payable under any applicable Hedge Agreement). The Issuer shall provide the
Noteholder with ten (10) days written notice of its election to prepay the Note.
E. If the Issuer defaults in the payment of principal of or interest on the Note and such
default continues for 10 days after such payment is due, amounts payable under the Note shall bear
interest at the default rate (the "Default Rate") of 5% per annum in excess of the rate otherwise
applicable to the Note. Furthermore, the Issuer shall pay a late payment charge of 4% of any
payment of principal of or interest on the Note not received by the Holder within 14 days after it is
due. Upon any such default, the Holder may, at its option, declare the principal sum outstanding
under the Note, together with all accrued interest thereon, to be immediately due and payable.
F. The Note shall be payable with respect to both principal and interest in lawful money
of the United States of America at such address as the Holder may from time to time designate.
G. The Issuer is authorized to enter into Hedge Agreements. The City Manager is
authorized to negotiate the terms of such Hedge Agreements, and the Mayor is hereby authorized
to execute such Hedge Agreements, his signature thereon constituting conclusive evidence of
approval of such Hedge Agreements.
SECTION 7. INTEREST RATE ADJUSTMENTS. Notwithstanding any contrary
provision set forth herein or in the Note, the interest rate applicable to the Note shall be adjusted as
follows:
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(a) The interest rate under the Note will be adjusted as follows:
(i) If the portion of the interest expense incurred or deemed to have been incurred
because the Noteholder holds the Note (the "Related Interest") and which would on the date
of issuance of the Note be allowable as a deduction to the Noteholder during any period is
decreased below 80% because of any change in the tax laws or regulations, or because the
Note is not or ceases to be qualified as a "qualified tax-exempt obligation" under Section
265(b )(3)(B) of the Code, then the interest rate on the Note otherwise applicable during such
period shall be increased each calendar year by a percentage amount equal to (A - .20) x B
x C where:
(aa) A equals the fraction (expressed as a decimal) ofthe Related Interest
not allowable as a deduction to the Noteholder after the effective date of the change
or loss of "qualified" status;
(bb) B equals the maximum corporate tax rate then in effect (expressed as
a decimal);
(cc) C equals the Noteholder's Adjusted Cost of Funds.
(ii) Ifthe Noteholder (as defined herein) or its parent holding company pays an
alternative minimum tax in any tax year and the interest on the Note is a direct tax
preference item under Section 57(a)(5) or any successor provision of the Code, then the
interest rate on the Note otherwise applicable for the period during such tax year in which
interest on the Note is a direct tax preference item will be increased by an amount equal to
(A - B) x C where:
(aa) A equals the interest rate on the Note otherwise applicable expressed
as a percentage;
(bb) B equals the Noteholder's Adjusted Cost of Funds (as defined herein);
and
(cc) C equals the maximum marginal rate of the alternative minimum tax
expressed as a decimal (currently .20).
(iii) If the Noteholder or its holding company pays an alternative minimum tax
in any tax year and the interest on the Note is not a direct tax preference item under Section
57(a)(5), but is an indirect tax preference item because ofthe application of Section 56(g)
or any successor provision of the Code, then the interest rate on the Note otherwise
applicable for the period during such tax year in which interest on the Note is an indirect tax
preference item will be increased by an amount equal to (A - B) x C where:
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(aa) A equals the interest rate on the Note otherwise applicable expressed
as a percentage;
(bb) B equals the Noteholder's Adjusted Cost of Funds; and
(cc) C equals 75% of the maximum marginal rate of the alternative
minimum tax expressed as a decimal, or, if the Code is amended to effectively
increase or decrease the percentage of interest on the Note which is subject to such
indirect alternative minimum tax, then C will equal the percentage of such interest
which is effectively subject to such indirect alternative minimum tax; provided,
however, that no such increase will be paid by the Issuer if such circumstances relate
primarily to changes in holdings of the Noteholder or its parent holding company.
(iv) If the federal income tax deduction for state income taxes paid on the interest
payments received under the Note during any period is reduced because of any change in the
tax laws or regulations, then the interest rate on the Note otherwise applicable will be
increased during such period by an amount equal to A x B x C x D where:
(aa) A equals the fraction (expressed as a decimal) of the total state
income tax disallowed as a deduction for federal income tax purposes as a result of
such tax law change;
(bb) B equals the rate of the applicable state income tax (expressed as a
decimal);
( cc) C equals the maximum federal corporate tax rate then in effect for the
Noteholder (expressed as a decimal); and
(dd) D equals the interest rate on the Note otherwise applicable expressed
as a percentage.
(v) If the interest payments received under the Note during any period become
partially taxable because of any change in the tax laws or regulations, then the interest rate
on the Note otherwise applicable will be increased during such period by an amount equal
to (A - B) x C where:
(aa) A equals the Taxable Rate (as defined herein) (expressed as a
percentage);
(bb) B equals the interest rate on the Note otherwise applicable, expressed
as a percentage; and
(cc) C equals the fraction of the interest rate on the Note which has
become taxable as the result of such tax change (expressed as a decimal).
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(vi) Ifthe tax laws or regulations are amended to decrease the Federal Rate (as
defined herein), to cause the interest on the Note to be taxable, to be subject to a minimum
tax or an alternative minimum tax, or to otherwise decrease the effective after-tax yield on
the Note to the Noteholder (directly or indirectly, other than upon a Determination of
Taxability (as defined herein) or upon a change described in (i) through (v) above) then the
interest rate on the Note will be adjusted to cause the effective after-tax yield on the Note
to equal what the yield on the Note would have been in the absence of such change or
amendment in the tax laws or regulations. If the tax laws or regulations are amended to
increase the effective after-tax yield on this Note to the Noteholder (including by way of an
increase in the Federal Rate) then the interest rate on the Note will be decreased to cause the
effective after-tax yield on the Note to equal what the yield would have been in the absence
of such change or amendment in the tax laws or regulations. Upon a Determination of
Taxability, the interest rate applicable to the Note shall be the Taxable Rate.
(b) The above adjustments will be cumulative, but in no event will the interest rate on
the Note exceed the maximum rate permitted by law or the Taxable Rate, whichever is lower. All
adjustments to the interest rate on the Note resulting from a change in the tax laws or regulations
or otherwise will be effective on the effective date ofthe applicable change or the effective date of
the change in tax treatment. Interest on the Note and all other tax rates and interest rates are
expressed as annual rates. However, proper partial adjustment will be made if the tax law change
is effective after the first day of the Noteholder's tax year or if interest on the Note does not accrue
for the entire tax year of the Noteholder. Adjustments which create a circular calculation because
the interest rate on the Note is affected by the calculation will be carried out sequentially, increasing
the interest rate on the Note accordingly in each successive calculation using as the new value the
increase in the interest rate on the Note until the change on the interest rate caused by the next
successive calculation of the adjustment is de minimis. If more than one of subparagraphs (i)
through (vi) of paragraph (a) apply, then the interest rate on the Note will be adjusted in the order
in which listed above.
(c) To the extent an adjustment to the interest rate on the Note is not effected within 3
months ofthe event giving rise to the adjustment, and such delay is not due to the action or inaction
of the Noteholder, the additional interest due as a result of such adjustment will be paid with interest
compounded monthly (on principal only) at the rate which is equal to the interest rate on the Note.
All unpaid amounts determined to be owing as a result of such calculation will be due and payable
within 30 days after delivery of notice of the amount of such adjustment, and will be paid to the
Noteholder of record during the period to which the adjustment relates. This obligation will survive
the payment and cancellation of the Note, but shall not include any adjustment with respect to which
the Holder cannot suffer an increase in tax liability.
(d) Upon the occurrence of a Determination of Taxability , the Issuer agrees to pay to the
Noteholder any penalties or interest or past due taxes payable by such Noteholder (but not due to
any negligent delay of the Noteholder) to the Internal Revenue Service by reason thereof.
(e)
meanmgs:
For purposes of this Section 7, the following terms shall have the following
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(i) "Code" means the Internal Revenue Code of 1986, as amended from time to
time, and all rules and regulations promulgated thereunder.
(ii) "Noteholder" means the Bank or, as the case may be, any successor holder
of the Note.
(iii) "Noteholder's Adjusted Cost of Funds" means the fraction (expressed as a
percentage), determined by the Noteholder or its parent bank holding company (in each case
from an examination of its financial statements), of the total interest expense of the
Noteholder for each calendar year divided by the total average adjusted bases of all assets
of the Noteholder during the calendar year as determined under Section 265(b )(2)(B) of the
Code or any successor provision.
(iv) "Determination of Taxability" means the circumstances of interest paid or
payable on the Note becoming includable for federal income tax purposes in the gross
income of the Noteholder as a consequence of any act, omission or event whatsoever and
regardless of whether the same was within or beyond the control of the Issuer. A
Determination of Taxability will be deemed to have occurred upon: (aa) the receipt by the
Noteholder of an original or a copy of an Internal Revenue Service Technical Advice
Memorandum or Statutory Notice of Deficiency which holds that any interest payable on the
Note is includable in the gross income of the Noteholder; (bb) the issuance of any public or
private ruling of the Internal Revenue Service that any interest payable on the Note is
includable in the gross income of the Noteholder; or (cc) receipt by the Noteholder of an
opinion of bond counsel that any interest on the Note has become includable in the gross
income of the Noteholder for federal income tax purposes. For all purposes of this
definition, a Determination of Taxability will be deemed to occur on the date as of which the
interest on the Note is deemed includable in the gross income of the Noteholder. However,
the Issuer will have a reasonable opportunity to contest the memoranda, notices, rulings or
opinions described in clauses (aa), (bb) and (cc) above before a Determination ofTaxability
will be deemed to have occurred, but, ifunsuccessful, such Determination ofTaxability shall
be retroactive to the applicable date under clause (aa), (bb) or (cc) above.
(v) "Federal Rate" means, at any time, the then-current maximum marginal rate
of federal corporate income taxation imposed pursuant to the Code.
(vi) "Taxable Rate" means the applicable Libor Rate plus 1.08%.
SECTION 8. EXECUTION OF NOTE. The Note shall be executed in the name of the
Issuer by the Mayor, as Chairman of the Council, and countersigned and attested by the Clerk, either
manually or with their facsimile signatures, and the Issuer's seal or a facsimile thereof shall be
affixed thereto or reproduced thereon. The Certificate of Authentication of the Paying Agent and
Registrar shall appear on the Note, and the Note shall not 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 the Note. The authorized signature for the Paying Agent and Registrar shall be
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either manual or in facsimile; provided, however, that at least one of the above signatures, including
the authorized signature for the Paying Agent and Registrar, appearing on the Note shall at all times
be a manual signature. In case anyone or more of the officers who shall have signed or sealed the
Note shall cease to be such officer of the Councilor Issuer before the Note so signed and sealed
shall have been actually sold and delivered, the Note may nevertheless be sold and delivered as
herein provided and may be issued as if the person who signed or sealed the Note had not ceased
to hold such office.
SECTION 9. NOTE MUTILATED. DESTROYED. STOLEN OR LOST. In case the
Note shall become mutilated, or be destroyed, stolen or lost, the Council shall issue and deliver a
new Note of like tenor as the Note so mutilated, destroyed, stolen or lost, in exchange and
substitution for such mutilated Note, or in lieu of and substitution for the Note, if any, destroyed,
stolen or lost, and upon the Holder furnishing the Council proof of its ownership thereof and
satisfactory indemnity and complying with such other reasonable regulations and conditions as the
Council may prescribe and paying such reasonable expenses as the Issuer may incur. Any Note so
surrendered shall be canceled. If the lost, stolen or destroyed Note shall have matured or be about
to mature, instead of issuing a substitute Note, the Council may pay the same, upon being
indemnified as aforesaid, without surrender thereof. Any such duplicate Note issued pursuant to this
Section shall constitute an original, additional contractual obligation on the part of the Issuer
whether or not the lost, stolen or destroyed Note be at any time found by anyone.
SECTION 10. NEGOTIABILITY. The Note shall be and have all the qualities and
incidents of a negotiable instrument under the laws of the State of Florida, and the Holder, in
accepting the Note, shall be conclusively deemed to have agreed that the Note shall be and have all
of the qualities and incidents of a negotiable instrument under the laws of the State of Florida.
SECTION 11. REGISTRATION. The Council shall, prior to the proposed date of
delivery of the Note, by resolution designate the Paying Agent and Registrar, if the Paying Agent
and Registrar will be a bank or trust company. If no such designation is made, the Clerk shall be
the Paying Agent and Registrar. The Paying Agent and Registrar shall be responsible for
maintaining the books for the registration and transfer of the Note and, if a bank or trust company
is so designated, in compliance with a written agreement to be executed between the Council and
such bank or trust company as Paying Agent and Registrar prior to the delivery date of the Note.
Upon surrender to the Paying Agent and Registrar for transfer or exchange of the Note, duly
endorsed for transfer or accompanied by an assignment or written authorization for exchange,
whichever is applicable, duly executed by the Holder or its attorney duly authorized in writing, the
Paying Agent and Registrar shall deliver in the name of the Holder or the transferee or transferees,
as the case may be, a new fully registered Note for the principal amount which the Holder is entitled
to receive.
When the Note is presented for transfer, exchange or payment (if so required by the Council
or the Paying Agent and Registrar), it 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
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Councilor the Paying Agent and Registrar, duly executed by the Holder or by its duly authorized
attorney.
The Paying Agent and Registrar or the Council may require payment from the Holder or
transferee of a sum sufficient to cover any tax, fee or other governmental charge that may be
imposed in connection with any exchange or transfer of the Note. Such charges and expenses shall
be paid before any new Note shall be delivered.
Any new Note delivered upon any transfer or exchange shall be a valid obligation of the
Issuer, evidencing the same debt as the Note surrendered, shall be secured by this Resolution and
shall be entitled to all of the security and benefits hereof.
The Council and the Paying Agent and Registrar may treat the Holder of the Note as the
absolute owner thereof for all purposes, whether or not such Note shall be overdue, and shall not be
bound by any notice to the contrary.
SECTION 12. DISPOSITION OF NOTE PAID OR REPLACED. Whenever the Note
shall be delivered to the Paying Agent and Registrar for cancellation, upon payment of the principal
amount thereof, or for replacement, transfer or exchange, it shall, after cancellation, either be
retained by the Paying Agent and Registrar for a period oftime specified in writing by the Council,
or at the option of the Council, shall be destroyed by the Paying Agent and Registrar and
counterparts of a certificate of destruction evidencing such destruction shall be furnished to the
Council.
SECTION 13. NATURE OF AND SECURITY FOR THE OBLIGATIONS UNDER
THE NOTE.
A. The Note shall not be or constitute a general obligation or indebtedness of the State
of Florida, or any of its political subdivisions, or the Issuer as a "bond" within the meaning of any
constitutional or statutory provision, but shall be a special obligation of the Issuer, payable from and
secured by a lien upon and pledge of the Pledged Revenues in accordance with the terms of this
Resolution. NEITHER THE FAITH AND CREDIT NOR THE AD V ALOREM TAXING POWER
OF THE ISSUER, THE STATE OF FLORIDA OR ANY POLITICAL SUBDIVISION THEREOF
IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THE NOTE OR
OTHER COSTS INCIDENTAL TO THE NOTE.
SECTION 14. PLEDGE OF REVENUES: COVENANT TO BUDGET AND
APPROPRIATE.
A. The payment of the principal of and interest on the Note, together with all amounts
now or hereafter due under any Hedge Agreement, shall be secured forthwith by a pledge of and lien
upon the Pledged Revenues. The Issuer does hereby irrevocably pledge and grant a lien upon the
Pledged Revenues to the Noteholder to secure the payment of the principal of and interest on the
Note and all amounts now or hereafter due under any Hedge Agreement. The Pledged Revenues
shall be subject to the lien of the pledge hereby given and granted immediately upon the issuance
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and delivery of the Note, without any physical delivery by the Issuer or any further act, and the lien
of this pledge shall be valid and binding as against all parties having claims of any kind against the
Issuer, in tort, contract or otherwise.
B. Until all amounts outstanding under the Note are paid or deemed paid pursuant to the
provisions of this Resolution,. the Issuer covenants to appropriate in its annual budget, by
amendment ifnecessary, from Non-Ad Valorem Funds lawfully available in each Fiscal Year of the
Issuer in which principal of or interest on the Note becomes due and payable, amounts sufficient,
together with other available moneys, to pay the principal of and interest on the Notes, as the same
become due (whether by redemption, at maturity or otherwise). Such covenant and agreement on
the part of the Issuer to budget and appropriate such amounts of Non-Ad Valorem Funds shall be
cumulative to the extent not paid, and shall continue until such Non-Ad Valorem Funds or other
legally available funds in an amount sufficient to make all required payments hereunder and under
the Note shall have been budgeted, appropriated and actually paid. Notwithstanding the foregoing
covenant of the Issuer, the Issuer does not covenant to maintain any services or programs, now
provided or maintained by the Issuer, which generate Non-Ad Valorem Funds.
C. Except as otherwise provided in this resolution, the covenant to budget and
appropriate set forth in subsection (B) above does not create any lien upon or pledge of such Non-
Ad Valorem Funds, nor does it preclude the Issuer from pledging in the future its Non-Ad Valorem
Funds, nor does it require the Issuer to levy any particular Non-Ad Valorem Funds, nor does the
covenant to budget and appropriate give the Noteholder a prior claim on the Non-Ad Valorem Funds
as opposed to claims of general creditors of the Issuer. Such covenant to budget and appropriate
Non-Ad Valorem Funds is subject in all respects to the payment of obligations secured by a pledge
of such Non-Ad Valorem Funds (including the pledge of such funds set forth in subsection (A)
hereof), heretofore or hereafter entered into (including the payment of debt service on bonds and
other debt instruments). However, the covenant to budget and appropriate in its general annual
budget for the purposes and in the manner stated herein shall have the effect of making available for
the payment of the principal of and interest on the Notes, in the manner described herein, Non-Ad
Valorem Funds and placing on the Issuer a positive duty to appropriate and budget, by amendment
if necessary, amounts sufficient to meet its obligations hereunder; subject, however, in all respects
to the restrictions of Section 166.241(3), Florida Statutes, as amended, which provides that the
governing body of each municipality shall make appropriations for each fiscal year which, in any
one year, shall not exceed the amount to be received from taxation or other revenue sources; and
subject, further, to the payment of services and programs which are essential public purposes
affecting the health, welfare and safety of the inhabitants ofthe Issuer or which are legally mandated
by applicable law.
SECTION 15. AVAILABILITY OF NOTE PROCEEDS; COSTS. The Note proceeds
are available solely for the purposes provided herein and consistent with the requirements of Florida
law, including the Act. The money received from the proceeds of the Note shall be applied to pay
the costs of the Project.
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SECTION 16. NOTE HOLDER NOT AFFECTED BY USE OF NOTE PROCEEDS.
The Noteholder shall have no responsibility for the use of the proceeds of the sale of the Note, and
the use of the Note proceeds by the Council shall in no way affect the rights of such Noteholder.
SECTION 17. SALE OF NOTE. The Note is hereby awarded and sold at negotiated sale
to the Bank at the Purchase Price. The applicable officers of the Council are authorized, in their
discretion, to execute and deliver agreements, certificates or documents related to the issuance of
the Note, including a waiver of right to jury trial, to the extent deemed necessary by the Holder.
SECTION 18. TAX EXEMPTION: OUALIFIED TAX-EXEMPT OBLIGATION
DESIGNATION. The Issuer covenants that it (i) will not use the proceeds of the Note in any
manner which would cause the interest on the Note to be or become includable in the gross income
of the owner thereof for federal income tax purposes or cause the Note not to be a "qualified tax-
exempt obligation", (ii) will not do any act or fail to do any act which would cause the interest on
the Note to become includable in the gross income of the owner thereof for federal income tax
purposes or cause the Note not to be "qualified tax-exempt obligations", and (iii) will comply with
all provisions ofthe Code necessary to maintain the exclusion of interest on the Note from the gross
income of the owner thereof for federal income tax purposes, including, in particular, the payment
of any amount required to be rebated to the United States Treasury pursuant to the Code. The Clerk,
or his designee, is authorized to make or effect any election, selection, choice, consent, approval or
waiver on behalf of the Council with respect to the Note as the Councilor the Issuer is required to
make or give under the federal income tax laws, for the purpose of assuring, enhancing or protecting
favorable tax treatment or characterization ofthe Note or interest thereon or assuring compliance
with requirements for that purpose, reducing the burden or expense of such compliance, reducing
the rebate amount or payments of penalties thereon, or making payments in lieu thereof, or obviating
such amounts or payments, as determined by such officer, or his designee. Any action of such
officer, or his designee, in that regard shall be in writing and signed by such officer, or his designee.
The Issuer shall be responsible for determining any rebate to the United States Treasury
which is required by Section 148 of the Code. However, if the Issuer fails, in the Noteholder's
judgment, to properly determine such rebate amount then the Noteholder may, at the Issuer's
expense, hire counsel, accountants or experts which the Noteholder, in its sole discretion, determines
advisable to determine the amount, due dates and any other rebate requirements and the Issuer shall
remit such rebate amount to the federal government not later than the due date thereof. The
Noteholder will not be liable for any failure to comply with Section 148 of the Code. The
N oteholder shall not be liable for any failure of the Issuer or the Council to comply with Section 148
of the Code with respect to the Note.
The Council hereby designates the Note as a "qualified tax-exempt obligation" as defined
in Section 265 of the Code.
SECTION 19. OTHER COVENANTS.
The Issuer covenants that, so long as the Note remains outstanding:
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A As long as the Note is outstanding, the Issuer shall deliver to the Holder (a)
a copy of its audited financial statements for the Fiscal Year then ended no later than 270
days after the end of each Fiscal Year; (b) a copy of the accountant's management letter
received by Issuer from its accountant; and (c) a copy of its budget for each fiscal year not
later than November 15 of each such year.
The Issuer will maintain a system of accounting in accordance with generally
accepted accounting principles, and will furnish a certificate of the independent certified
public accountants preparing the Issuer's audited financial statements addressed to the
Noteholder stating either (i) that during the course of their preparation of the financial
statements of the Issuer nothing came to their attention which led them to believe that the
Issuer was in default under the Note documents, or (ii) the nature and extent of any matter
which led them to believe that such default had occurred.
The Issuer shall also provide the Noteholder with such other financial information
as it shall reasonably request from time to time. Such information may include, but is not
limited to, financial information relating to the Project.
B The Issuer shall not pledge, grant additional liens on or otherwise further
encumber the Pledged Revenues other than the Issuer's pledge of such revenues to the
Noteholder provided herein.
C. The Issuer shall maintain a debt service coverage ratio equal to or greater than
1.1 to 1 for each fiscal year. For the purposes of this Resolution, "debt service coverage
ratio" shall mean the ratio of: (a) all funds in the General Fund and the Debt Service Fund
as shown on the Issuer's financial statements provided to the Bank (such funds being
aggregated under the heading Memorandum Total on such financial statements); divided by
the Issuers Debt Service (as shown on the Issuer's financial statements provided to the
Bank).
D. The Issuer will immediately give the Noteholder written notice of any event
of default or an event which with the passage of time would become an event of default
under the Note documents.
SECTION 20. AUTO-DEBIT. The Issuer hereby authorizes the Bank to automatically
deduct the amount of any payment due hereunder from any of the Issuer's accounts now or hereafter
maintained with the Bank. If the funds in such account are insufficient to cover any payment, the
Bank shall not be obligated to advance funds to cover the payment. The Bank or the Issuer may at
any time terminate the automatic payment provisions set forth herein by notice to the other party.
SECTION 21. BANK FEES AND EXPENSES. The Issuer agrees to pay, and save the
Noteholder harmless against liability for the payment of, all out-of-pocket expenses arising in
connection with this transaction (including any renewals or modifications relating hereto), and the
fees and expenses of the Noteholder's counsel, provided, however, that such fees and expenses of
Noteholder's counsel shall not exceed $1,500.00. If an event of default shall occur, the Issuer shall
Resolution/#2002-R-07
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also pay all of the Noteholder's costs of collection, including court costs and fees of attorneys and
legal assistants (whether incurred in connection with trial or appellate proceedings). The Issuer
authorizes the Noteholder to make advances under the Note to pay all such expenses.
SECTION 22. MODIFICATION AND AMENDMENT. No modification or amendment
of this Resolution or of any resolution amendatory hereof or supplemental hereto may be made
without the consent in writing of the Holder of the Note; provided, however, that no consent of the
Holder shall be required for amendments made to cure any ambiguity, formal defect or omission in
this Resolution.
SECTION 23. SEVERABILITY OF INVALID PROVISIONS. If anyone or more of
the covenants, agreements or provisions of this Resolution should be held contrary to any express
provision oflaw or contrary to the policy 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 separate from the remaining covenants,
agreements or provisions and in no way affect the validity of all the other provisions of this
Resolution or of the Note issued hereunder.
SECTION 24. REGULARITY OF PROCEEDINGS: COMPLIANCE WITH
STATUTES. ETC. The issuance of the Note has been duly authorized by the Council, and all
conditions, acts and things necessary and required by the Constitution and laws of the State of
Florida or otherwise, to exist, to have happened, or to have been performed precedent to and in
connection with the execution and delivery of the Note, and precedent to and in connection with the
adoption of this Resolution, do exist, have happened and have been performed in regular form, time
and manner.
SECTION 25. ARBITRATION. The parties agree to the following arbitration
prOVISIons:
(a) To the extent permitted by applicable law, this Section 25 governs the
resolution of any controversies or claims between the Issuer and the Bank, whether arising
in contract, tort or by statute, including but not limited to controversies or claims
(collectively, a "Claim") that arise out of or relate to: (i) this Resolution; (ii) the Note
(including any renewals, extensions or modifications hereof); or (iii) any document related
to this Resolution or the Note.
(b) At the request of the Issuer or the Bank, any Claim shall be resolved by
binding arbitration in accordance with the Federal Arbitration Act (Title 9, U. S. Code) (the
"Act"). The Act will apply even though this Resolution provides that it is governed by the
law of a specified state. Arbitration proceedings will be determined in accordance with the
Act, the rules and procedures for the arbitration of financial services disputes of
JAMS/Endispute or any successor thereof ("JAMS"), and the terms ofthis Section. In the
event of any inconsistency, the terms of this Section shall control. The arbitration shall be
administered by JAMS and conducted in any United States state where real or tangible
personal property collateral for this credit is located or if there is no such collateral, in
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Florida. All Claims shall be determined by one arbitrator. However, if Claims exceed
$5,000,000, upon the request of any party, the Claims shall be decided by three arbitrators.
All arbitration hearings shall commence within 90 days of the demand for arbitration and
close within 90 days of commencement and the award of the arbitrator or arbitrators, as the
case may be, shall be issued within 30 days of the close of the hearing. However, the
arbitrator or arbitrators, as the case may be, upon a showing of good cause, may extend the
commencement of the hearing for up to an additional 60 days. The arbitrator or arbitrators,
as the case may be, shall provide a concise written statement of reasons for the award. The
arbitration award may be submitted to any court having jurisdiction to be confirmed and
enforced.
(c) The arbitrator(s) will have the authority to decide whether any Claim is barred
by the statute of limitations and, if so, to dismiss the arbitration on that basis. For purposes
of the application ofthe statute oflimitations, the service on JAMS under applicable JAMS
rules of a notice of Claim is the equivalent of the filing of a lawsuit. Any dispute concerning
this arbitration provision or whether a Claim is arbitrable shall be determined by the
arbitrator(s). The arbitrator( s) shall have the power to award legal fees pursuant to the terms
of this Resolution.
(d) This Section 25 does not limit the right of the Issuer or the Bank to: (i)
exercise self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or
nonjudicial foreclosure against any real or personal property collateral; (iii) exercise any
judicial or power of sale rights, or (iv) act in a court of law to obtain an interim remedy,
such as but not limited to, injunctive relief, writ of possession or appointment of a receiver,
or additional or supplementary remedies.
(e) By agreeing to binding arbitration, the Issuer and the Bank irrevocably and
voluntarily waive any right they may have to a trial by jury in respect of any Claim.
Furthermore, without intending in any way to limit this Resolution to arbitrate, to the extent
any Claim is not arbitrated, the parties irrevocably and voluntarily waive any right they may
have to a trial by jury in respect of such Claim. No provision in this Resolution, the Notes
or in any document related hereto regarding submission to jurisdiction or venue in any court
is intended or shall be construed to be in derogation of the provisions of this Resolution or
in any such other document for arbitration of any controversy or claim.
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SECTION 25. EFFECTIVE DATE. This Resolution shall take effect immediately upon
its adoption.
ADOPTED: February 11, 2002.
After Motion by C11_L --A!(,1--L_—and Second by-•—.r•, the
vote on this resolution was as follows:
AYE NAY
Mayor Donald A. Schmidt_
Councilman James P. Brown
Councilman Dennis A. Vincenzi
Councilwoman Harriet E. Rhodes
Councilwoman Judith Lichter
PASSED AND DULY ADOPTED this /l day of February, 2002.
For the use and reliance only by the City of
Edgewater, Florida. Approved as to form
and legality by: Scott A. Cookson,
Esquire
City Attorney
Foley & Lardner
Resolutiodp2002-R-07
is
CITY COUNCIL OF THE
CITY OF EDGEWATER, FLORIDA
Ry: ��/
Donald A. Schmidt
Mayor
IAJ
Robin L. Matusick
Legal Assistant
Approved by the City Council during the
Council meeting held on the 11 day of
February, 2002 under Agenda Item
-4-L•
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EXHIBIT
A
B
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EXHIBIT LIST
DESCRIPTION
DESCRIPTION OF PROJECT
FORM OF NOTE
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EXHIBIT "A"
DESCRIPTION OF PROJECT
Certain General Fund Improvement Projects of the Issuer, including:
1. Replacement of a Fire Pumper
2. Roof Replacement for City Hall
3. Re-Alignment of Air Park Road
4. Purchase of Computer Equipment
5. FIND - improvements and/or debt service
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