HomeMy WebLinkAboutR-2005-098 Municipal Loan Council (00018989-2) RESOLUTION NO. 2005-098
A RESOLUTION OF THE CITY OF DANIA BEACH,
FLORIDA, AUTHORIZING THE NEGOTIATION OF A LOAN
IN AN AGGREGATE AMOUNT NOT TO EXCEED $6.8
MILLION FROM THE FLORIDA MUNICIPAL LOAN
COUNCIL; APPROVING THE FORM OF AND THE
EXECUTION AND DELIVERY OF A LOAN AGREEMENT
WITH THE FLORIDA MUNICIPAL LOAN COUNCIL;
APPROVING THE EXECUTION AND DELIVERY OF A
BOND PURCHASE CONTRACT; APPROVING THE
EXECUTION AND DELIVERY OF A CONTINUING
DISCLOSURE AGREEMENT; PROVIDING CERTAIN OTHER
MATTERS IN CONNECTION WITH THE MAKING OF SUCH
LOAN, PROVIDING FOR CONFLICTS; FURTHER
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, participating governmental units ("Members") have created the Florida
Municipal Loan Council ("Council") pursuant to a certain Interlocal Agreement and pursuant to
Chapter 163, Part I, Florida Statutes, for the purpose of issuing its bonds to make loans to
participating governmental units for qualified projects; and
WHEREAS, the City of Dania Beach, Florida (the "City"), a political subdivision is duly
® created and existing pursuant to the Constitution and laws of the State of Florida ("State"); and
WHEREAS, the City finds and declares that there is a substantial need for the financing
of a loan (the "Loan") for certain governmental projects listed on Exhibit A (the Projects")
secured by a Loan Agreement between the City of Dania Beach, Florida and the Florida
Municipal Loan Council to be dated as of August 1, 2005 (the "Loan"); and
WHEREAS, the City has determined that financing the Loan through a pooled financing
program involving a limited number of local governmental units which regularly undertake
projects requiring significant debt financing within the State of Florida would provide for low
cost financing of such Loan through economies of scale, administrative support and access to
expertise in accessing the capital markets; and
WHEREAS, it is anticipated that the benefits of a pooled financing by the City with a
limited number of governmental units through the Florida Municipal Loan Council may be
obtained through a promise to repay such loan as a general obligation of the City secured by the
full faith and credit and unlimited ad valorem taxing power of the City; and
WHEREAS, the City held successful referendums on March 8, 2005 for the issuance of
general obligation debt for the Projects; and
WHEREAS, by pooling the respective financial needs of these certain various local
governmental units, the City will be able to access additional markets and expects to receive the
benefits of lower interest rates on more favorable terms associated with such a large scale
• financing with such benefits being obtained for and inuring to the City; and
WHEREAS, the Council is in the process of issuing its Florida Municipal Loan Council
Revenue Bonds, Series 2005C ('Bonds") to finance loans and is seeking to make loans to
governmental units in order to finance governmental projects at low rates; and
WHEREAS, the City desires to participate in such a program with other cities and other
qualified governmental entities approving participating and acknowledging the Interlocal
Agreement; and
WHEREAS, it is determined that a need exists to borrow funds to finance the cost of the
Projects; and
WHEREAS, the City hereby determines that it would be economically beneficial and in
the best interests of the City and the citizens thereof to finance the Projects through a loan as
herein authorized; and
WHEREAS, it is determined to be in the best interest of the City to borrow funds from
the Council from the proceeds of the Bonds to undertake the financing (the "Loan").
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF DANIA BEACH, FLORIDA:
SECTION 1. AUTHORITY. This Resolution is adopted pursuant to Chapter 166,
Florida Statutes, and other applicable provisions of law.
SECTION 2. NEGOTIATED LOAN. Due to the complicated nature of the financings.
and the ability of the Council to access additional markets and for the City to receive the benefits
of lower interest rates and issuance costs, it is hereby determined that it is in the best interest of
the City that the Loan to the City be made from the proceeds of the Bonds, as opposed to the
City borrowing funds pursuant to a public sale in order to accomplish the financing of the
Projects.
SECTION 3. LOAN AMOUNT. The amount of the Loan to the City evidenced by the
Loan Agreement secured as a general obligation of the City shall not exceed $6.8 million. Such
Loan shall be made at a discount which shall include a pro-rata portion of costs of issuance
incurred by the City, the Florida League of Cities, Inc. administrative fees, and other ongoing
costs and shall bear interest and shall be repayable according to the terms and conditions set forth
in the Loan Agreement authorized pursuant to Section 5 hereof with such changes, insertions and
omissions as may be approved by the City Manager or the Mayor. The redemption provisions, if
any, relating to such Loan shall be as provided in the Loan Agreement.
SECTION 4. DELIVERY OF LOAN AGREEMENT AND CONTINUING
DISCLOSURE CERTIFICATE. The City Manager or the Mayor are hereby authorized and
2 RESOL,UTION#2005-098
directed to execute and deliver the Loan Agreement to evidence the Loan and to undertake all
actions in respect to the Loan Agreement, which is in substantially the form attached as Exhibit
B with such changes, insertions and omissions as may be approved by the City Manager or the
Mayor, the execution thereof being conclusive evidence of such approval.
Further, the City Manager, the Mayor or the Finance Director or any other appropriate
officers of the City are authorized and directed to execute and deliver a Continuing Disclosure
Certificate concerning compliance with existing or proposed rules of the Securities and
Exchange Commission concerning continuing disclosure by the City, to be entered into by and
between the City and the Florida League of Cities, Inc., in substantially the form attached as
Exhibit C with such changes, insertions and omissions as may be approved by the officer
executing such agreement, the execution thereof being conclusive evidence of such approval.
SECTION 5. BOND PURCHASE CONTRACT. The form of the Bond Purchase
Contract, to be entered into by and between the Underwriter, the City and the Council in
substantially the form attached as Exhibit D with such changes, insertions and omissions as may
be approved by the City Manager or Mayor, the execution thereof being conclusive evidence of
such approval is hereby approved.
SECTION 6. OTHER INSTRUMENTS. The City Manager, Mayor or any other
appropriate officers of the City are authorized and directed to execute any and all certifications
or other instruments or documents required by this Resolution, the Loan Agreement, the
Continuing Disclosure Agreement, the Bond Purchase Contract, the Indenture or any other
document required by the Council as a prerequisite or precondition to making the Loan
(including but not limited to the execution of all tax documents relating to the tax exempt status
of the Loan), and any such representations and agreements made therein shall be deemed to be
made on behalf of the City. All action taken to date by the officers of the City in furtherance of
the issuance of the Bonds and the making of the Loan is hereby approved, confirmed and
ratified.
SECTION 7. ADDITIONAL, INFORMATION. The Loan Agreement shall not be
executed and delivered unless .and until the Borrower has received all information required by
Section 218.385, Florida Statutes.
SECTION 8. CONFLICTS. That all resolutions or parts of resolutiosn in conflict with
this Resolution are repealed to the extent of such conflict.
SECTION 9. EFFECTIVE DATE. This Resolution shall take effect immediately upon
its adoption.
PASSED AND ADOPTED this 28`h day of June, 2005.
3- RESOLUTION#2005-098
® ANNE CASTRO
MAYOR-COMMISSIONER
ATTEST:
- ROLL CALL:
COMMISSIONER ANTON - YES
- � COMMISSIONER BERTINO - YES
LOUISE STILSON COMMISSIONER MCELYEA - YES
CITY CLERK VICE MAYOR FLURY - YES
MAYOR CASTRO -YES
APPROVED AS FORM AND CORRECTNESS
BY:
M N
TH M J. A SBRO
CITY ATTORNEY
4 RESOLUTION #2005-098
EXIIIBIT A
PROJECTS
1. Neighborhood Sidewalk/Lighting/Traffic Calming Devices
2. Construction and Equipping of a Fire Station with a Broward Sheriffs
Operations Sub Station
3. Recreation Centers and Parks Expansion and Improvements
•
•
5 RESOLUTION#2005-098
EXIIIBIT B
FORM OF LOAN AGREEMENT
RESOLUTION #2005-098
EXHIBIT C
FORM OF CONTINUING DISCLOSURE AGREEMENT
•
•
7 RESOLUTION #2005-098
EXIIIBIT D
FORM OF BOND PURCHASE CONTRACT
•
8 RESOLUTION #2005-098
Agenda Request Form
City of Dania Beach
Agenda Item:
Date of Commission meeting: 6/28/2005
Description of Agenda Item: Entering into an agreement with FI.Municpal Loan Council for issuance of G.O. bond
Commission action being requested:
Adopt Resolution or Ordinance ❑ Expenditure ❑ Award BID/ RFP ❑
Presentation ❑ General approval of item ❑ Continued from meeting
Other(Please explain):':
Summary explanation and background:
Please refer to Staff Memo
Attached'"exhibits andsaddrtior aFbackup materials (Please list):
Staff Memo
Resolution
Loan Documents
For purchasing requests ONLY
Department: Amount:
Fund: General: ❑ Water: ❑ Sewer: ❑ Stormwater: ❑ Grants: ❑ Capital: ❑
Account Name: Account Number:
Submitted by: pvarney Date: 6/21/2005
Department Director., Date:
Admin. Services Director: Date:
Finance Director. pvarney .-- yJ'�. Date: 6/21/2005
City Manager. l � Date:
CITY OF DANIA BEACH
K� DEPARTMENT OF FINANCE
® MEMORANDUM
TO: Ivan Pato, City Manager Memo: DF-05-17
FROM: Patricia Varney, Director of Finance r'
DATE: June 18„ 2005
SUBJECT: General Obligation Bond Issuance
The voters of the City of Dania Beach approved bond referendum for four major capital
improvement projects in a total amount of not to exceed 10.3 million dollars. However,
since the City Manager is in discussions with the County, the City currently is unsure
what the project cost would be for the Library and Parking Structures. Staff is
recommending that the issuance of debt for this project in the amount of 3.5 million
dollars be hold off and that the City will issue 6.8 million dollars G.O. Bond of the
approved 10.3 million dollars.
Discussion with Bond Counsel revealed that the City must issue the bond prior to
second Budget Hearing of which is currently scheduled on September 21, 2005,
• in order to comply with the Truth In Millage requirement. If the bond was not issued by
then, the City would not be able to calculate the debt service requirement and derive a
millage to be levied for fiscal year 2006.
In order to issue a General Obligation Bond, the City has to issue Request for Proposals
to engage financial advisor and underwriter. The City will also have to provide a Public
Offering Statement which has to include not only the City's financial statement, but
addresses City's management style and future economic situation. Further, the City
also has to be rated by one of the rating agency to decide its rating for the bond.
With the short time frame and also being in the budget season, staff is recommending
utilizing the Florida Municipal Loan Program administered and sponsored by the Florida
League of Cities. There are advantages and disadvantages to this program. Some of
the advantages of this program are lower cost of issuance, and less staff time as the
underwriter, financial advisor and bond counsel are already in place. Since it is a pool
program, the amount of the issue is significant and may result in better interest rate.
Also, since the City indebtness is funded through general obligation bond, the Florida
League of Cities has agreed to price the City's bond separately which will result in a
better interest rate. This program also provides different investment opportunities of the
loan based on the timing and drawdown schedules of the projects. The disadvantages
are since it is a pool program the availability of the City to change the language in the
agreement may be very limited. The Florida Municipal Loan Council also charges an
administrative fee 10 basis point (.0010) based on the principal balance. The cost
range from the highest of $6,800 per year to $390. The total cost for 30 years is
estimated at $125,740. The Florida Municipal Loan Council is considering of closing a
pool bond in late July to early August. This will provide enough time for the City to
comply with the TRIM requirement.
® Attached is the preliminary proposal from Florida Municipal Loan Program which
identified the sources and uses of funds as well as projected debt service based on
interest rate of 6/20/05. The delivery expenses which includes, cost of issuance,
underwriter's discount and bond insurance amounted to $123,328.22. Conservatively if
we are to invest $5 million dollars at 3% for the first year, it will generate an interest
earning of$150,000 which will be able to offset this expense.
SOURCES AND USES OF FUNDS
Dania Beach$6.8 million for 30 years(GO)6-20
Florida Municipal Loan Council
'AAA'Insured Rates as of 6-20-05
PRELIMINARY NUMBERS
Dated Date 08/01/2005
Delivery Date 08/01/2005
Sources:
Bond Proceeds:
Par Amount 6,800,000.00
6;800,000.00
Uses:
Project Fund Deposits:
Project 6,676,671.78
Delivery Date Expenses:
Cost of Issuance 28,084.00
Underwriter's Discount 40,732.00
Bond Insurance 54,512.22
123,328.22
6,800,000.00
Jun 21,2005 3:33 pm Prepared by Banc of America Securities LLC Page I
BOND SUMMARY STATISTICS
Dania Beach$6.8 million for 30 years(GO)6-20
Florida Municipal Loan Council
'AAA'Insured Rates as of 6-20-05
PRELIMINARY NUMBERS
Dated Date 08/01/2005
Delivery Date 08/01/2005
First Coupon 04/01/2006
Last Maturity 10/01/2035
Arbitrage Yield 4.216060%
True interest Cost(TIC) 4.199411%
Net Interest Cost(NIC) 4.220396%
All-In TIC 4.412182%
Average Coupon 4.188292%
Average Life(years) 18.658
Duration of Issue(years) 12.521
Par Amount 6,800,000.00
Bond Proceeds 6,800,000.00
Total Interest 5,313,825.58
Net Interest 5,354,557.58
Total Debt Service 12,113,825.58
Maximum Annual Debt Service 408,660.00
Average Annual Debt Service 401,563.28
Underwriter's Fees(per$1000)
Average Takedown
Other Fee 5.990000
Total Underwriter's Discount 5.990000
Bid Price 99.401000
Par Average Average
Bond Component Value Price Coupon Life
Serial Bonds 6,800,000.00 100.000 4.188% 18.658
6,800,000.00 18.658
All-In Arbitrage
TIC TIC Yield
Par Value 6,800,000.00 6,800,000.00 6,800,000.00
+Accrued Interest
+Premium(Discount)
-Underwriter's Discount (40,732.00) (40,732.00)
-Cost of Issuance Expense (28,084.00)
-Other Amounts (54,512.22) (54,512.22)
Target Value 6,759,268.00 6,676,671.78 6,745,487.78
Target Date 08/01/2005 08/01/2005 08/01/2005
Yield 4.199411% 4.412182% 4.216060%
Jun 21,2005 3:33 pm Prepared by Banc of America Securities LLC Page 2
BOND DEBT SERVICE
Dania Beach$6.8 million for 30 years(GO)6-20
Florida Municipal Loan Council
'AAA'Insured Rates as of 6-20-05
PRELIMINARY NUMBERS
Period Bond Total
Ending Principal Coupon Interest Debt Service Balance Bond Value
10/01/2005 6,800,000 6,800,000
10/01/2006 85,000 2.630% 315,882.58 400,882.58 6,715,000 6,715,000
10/01/2007 135,000 2.730% 268,521.00 403,521.00 6,580,000 6,580,000
10/01/2008 135,000 2.850% 264,835.50 399,835.50 6,445,000 6,445,000
10/01/2009 140,000 2.970% 260,988.00 400,988.00 6,305,000 6,305,000
10/01/2010 145,000 3.090% 256,830.00 401,830.00 6,160,000 6,160,000
10/01/2011 150,000 3.210% 252,349.50 402,349.50 6,010,000 6,010,000
10/01/2012 155,000 3.330% 247,534.50 402,534.50 5,855,000 5,855,000
10/01/2013 160,000 3.430% 242,373.00 402,373.00 5,695,000 5,695,000
10/01/2014 165,000 3.510% 236,885.00 401,885.00 5,530,000 5,530,000
10/01/2015 170,000 3.590% 231,093.50 401,093.50 5,360,000 5,360,000
10/01/2016 175,000 3.670% 224,990.50 399,990.50 5,185,000 5,185,000
10/01/2017 185,000 3.740% 218,568.00 403,568.00 5,000,000 5,000,000
10/01/2018 190,000 3.800% 211,649.00 401,649.00 4,810,000 4,810,000
10/01/2019 200,000 3.860% 204,429.00 404,429.00 4,610,000 4,610,000
10/01/2020 205,000 3.920% 196,709.00 401,709.00 4,405,000 4,405,000
10/01/2021 215,000 3.980% 188,673.00 403,673.00 4,190,000 4,190,000
10/01/2022 225,000 4.040% 180,116.00 405,116.00 3,965,000 3,965,000
10/01/2023 235,000 4.090% 171,026.00 406,026.00 3,730,000 3,730,000
10/01/2024 245,000 4.140% 161,414.50 406,414.50 3,485,000 3,485,000
10/01/2025 255,100 4.190% 151,271.50 406,271,50 3,230,000 3,230,000
10/01/2026 265,000 4.230% 140,587.00 405,587.00 2,965,000 2,965,000
10/01/2027 275,000 4.270% 129,377.50 404,377.50 2,690,000 2,690,000
10/01/2028 290,000 4.300% 117,635.00 407,635.00 2,400,000 2,400,000
10/01/2029 300,000 4.330% 105,165.00 405,165.00 2,100,000 2,100,000
10/01/2030 315,000 4.360% 92,175.00 407,175.00 1,785,000 1,785,000
10/01/2031 325,000 4.380% 78,441.00 403,441.00 1,460,000 1,460,000
10/01/2032 340,000 4.390% 64,206.00 404,206.00 1,120,000 1,120,000
10/01/2033 355,000 4.400% 49,280.00 404,280.00 765,000 765,000
10/01/2034 375,000 4.400% 33,660.00 408,660.00 390,000 390,000
10/01/2035 390,000 4.400% 17,160.00 407,160.00
6,800,000 5,313,825.58 12,113,825.58
Jun 21,2005 3:33 pm Prepared by Banc of America Securities LLC Page 3
BOND DEBT SERVICE
Dania Beach$6.8 million for 30 years(GO)6-20
Florida Municipal Loan Council
'AAA'Insured Rates as of 6-20-05
PRELIMINARY NUMBERS
Period Annual Bond Total
Ending Principal Coupon Interest Debt Service Debt Service Balance Bond Value
10/01/2005 6,800,000 6,800,000
04/01/2006 180,504.33 180,504.33 6,800,000 6,800,000
10/01/2006 85,000 2.630% 135,378.25 220,378.25 400,882.58 6,715,000 6,715:000
04/01/2007 134,260.50 134,260.50 6,715,000 6,715,000
10/01/2007 135,000 2.730% 134,260.50 269,260.50 403,521.00 6,580,000 6,580,000
04/01/2008 132,417.75 132,417.75 6,580,000 6,580,000
10/01/2008 135,000 2.850% 132,417.75 267,417.75 399,835.50 6,445,000 6,445,000
04/01/2009 130,494.00 130,494.00 6,445,000 6,445,000
10/01/2009 140,000 2.970% 130,494.00 270,494.00 400,988.00 6,305,000 6,305,000
04/01/2010 128,415.00 128,415.00 6,305,000 6,305,000
10/01/2010 145,000 3.090% 128,415.00 273,415.00 401,830.00 6,160,000 6,160,000
04/01/2011 126,174.75 126,174.75 6,160,000 6,160,000
10/01/2011 150,000 3.210% 126,174.75 276,174.75 402,349.50 6,010,000 6,010,000
04/01/2012 123,767.25 123,767.25 6,010,000 6,010,000
10/01/2012 155,000 3.330% 123,767.25 278,767.25 402,534.50 5,855,000 5,855,000
04/01/2013 121,186.50 121,186.50 5,855,000 5,855,000
10/01/2013 160,000 3.430% 121,186.50 281,186.50 402,373.00 5,695,000 5,695,000
04/01/2014 118,442.50 118,442.50 5,695,000 5,695,000
10/01/2014 165,000 3.510% 118,442.50 283,442.50 401,885.00 5,530,000 5,530,000
04/01/2015 115,546.75 115,546.75 5,530,000 5,530,000
10/01/2015 170,000 3.590% 115,546.75 285,546.75 401,093.50 5,360,000 5,360,000
04/01/2016 112,495.25 112,495.25 5,360,000 5,360,000
10/01/2016 175,000 3.670% 112,495.25 287,495.25 399,990.50 5,185,000 5,185,000
04/01/2017 109,284.00 109,284.00 5,185,000 5,185,000
10/01/2017 185,000 3.740% 109,284.00 294,284.00 403,568.00 5,000,000 5,000,000
04/01/2018 105,824.50 105,824.50 5,000,000 5,000,000
10/01/2018 190,000 3.800% 105,824.50 295,824.50 401,649.00 4,810,000 4,810,000
04/01/2019 102,214.50 102,214.50 4,810,000 4,810,000
10/01/2019 200,000 3.860% 102,214.50 302,214.50 404,429.00 4,610,000 4,610,000
04/01/2020 98,354.50 98,354.50 4,610,000 4,610,000
10/01/2020 205,000 3.920% 98,354.50 303,354.50 401,709.00 4,405,000 4,405,000
04/01/2021 94,336.50 94,336.50 4,405,000 4,405,000
10/01/2021 215,000 3.980% 94,336.50 309,336.50 403,673.00 4,190,000 4,190,000
04/01/2022 90,058.00 90,058.00 4,190,000 4,190,000
10/01/2022 225,000 4.040% 90,058.00 315,058.00 405,116.00 3,965,000 3,965,000
04/01/2023 85,513.00 85,513.00 3,965,000 3,965,000
10/01/2023 235,000 4.090% 85,513.00 320,513.00 406,026.00 3,730,000 3,730,000
04/01/2024 80,707.25 80,707.25 3,730,000 3,730,000
10/01/2024 245,000 4.140% 80,707.25 325,707.25 406,414.50 3,485,000 3,485,000
04/01/2025 75,635.75 75,635.75 3,485,000 3,485,000
10/01/2025 255,000 4.190% 75,635.75 330,635.75 406,271.50 3,230,000 3,230,000
04/01/2026 70,293.50 70,293.50 3,230,000 3,230,000
10/01/2026 265,000 4.230% 70,293.50 335,293.50 405,587.00 2,965,000 2,965,000
04/01/2027 64,688.75 64,688.75 2,965,000 2,965,000
10/01/2027 275,000 4.270% 64,688.75 339,688.75 404,377.50 2,690,000 2,690,000
04/01/2028 58,817.50 58,817.50 2,690,000 2,690,000
10/01/2028 290,000 4.300% 58,817.50 348,817.50 407,635.00 2,400,000 2,400,000
04/01/2029 52,582.50 52,582.50 2,400,000 2,400,000
10/01/2029 300,000 4.330% 52,582.50 352,582.50 405,165.00 2,100,000 2,100,000
04/01/2030 46,087.50 46,087.50 2,100,000 2,100,000
10/01/2030 315,000 4.360% 46,087.50 361,087.50 407,175.00 1,785,000 1,785,000
04/01/2031 39,220.50 39,220.50 1,785,000 1,785,000
10/01/2031 325,000 4.380% 39,220.50 364,220.50 403,441.00 1,460,000 1,460,000
Jun 21,2005 3:33 pm Prepared by Banc of America Securities LLC Page 4
BOND DEBT SERVICE
Dania Beach$6.8 million for 30 years(GO)6-20
Florida Municipal Loan Council
'AAA'Insured Rates as of 6-20-05
PRELIMINARY NUMBERS
Period Annual Bond Total
Ending Principal Coupon Interest Debt Service Debt Service Balance Bond Value
04/01/2032 32,103.00 32,103.00 1,460,000 1,460,000
10/01/2032 340,000 4.390% 32,103.00 372,103.00 404,206.00 1,120,000 1,120,000
04/01/2033 24,640.00 24,640.00 1,120,000 1,120,000
10/01/2033 355,000 4.400% 24,640.00 379,640.00 404,280.00 765,000 765,000
04/01/2034 16,830.00 16,830.00 765,000 765,000
10/01/2034 375,000 4.400% 16,830.00 391,830.00 408,660.00 390,000 390,000
04/01/2035 8,580.00 8,580.00 390,000 390,000
10/01/2035 390,000 4.400% 8,580.00 398,580.00 407,160.00
6,800,000 5,313,825.58 12,113,825.58 12,113,825.58
Jun 21,2005 3:33 pm Prepared by Banc of America Securities LLC Page 5
NET DEBT SERVICE
Dania Beach$6.8 million for 30 years(GO)6-20
Florida Municipal Loan Council
'AAA'Insured Rates as of 6-20-05
PRELIMINARY NUMBERS
Period Total Net
Ending Principal Interest Debt Service Trustee Fee Admin Fee Debt Service
10/01/2006 85,000 315,882.58 400,882.58 648 6,800 408,330.58
10/01/2007 135,000 268,521.00 403,521.00 648 6,715 410,884.00
10/01/2008 135,000 264,835.50 399,835.50 648 6,580 407,063.50 -
10/01/2009 140,000 260,988.00 400,988.00 648 6,445 408,081.00
10/01/2010 145,000 256,830.00 401,830.00 648 6,305 408,783.00
10/01/2011 150,000 252,349.50 402,349.50 648 6,160 409,157.50
10/01/2012 155,000 247,534.50 402,534.50 648 6;010 409,192.50-
10/01/2013 160,000 242,373.00 402,373.00 648 5,855 408,876.00
10/01/2014 165,000 236,885.00 401,885.00 648 5,695 408,228.00
10/01/2015 170,000 231,093.50 401,093.50 648 5,530 407,271.50
10/01/2016 175,000 224,990.50 399,990.50 648 5,360 405,998.50
10/01/2017 185,000 218,568.00 403,568.00 648 5,185 409,401.00
10/01/2018 190,000 211,649.00 401,649.00 648 5,000 407,297.00
10/01/2019 200,000 204,429.00 404,429.00 648 4,810 409,887.00
10/01/2020 205,000 196,709.00 401,709.00 648 4,610 406,967.00
10/01/2021 215,000 188,673.00 403,673.00 648 4,405 408,726.00
10/01/2022 225,000 180,116.00 405,116.00 648 4,190 409,954.00
10/01/2023 235,000 171,026.00 406,026.00 648 3,965 410,639.00
10/01/2024 245,000 161,414.50 406,414.50 648 3,730 410,792.50
10/01/2025 255,000 151,271.50 406,271.50 648 3,485 410,404.50
10/01/2026 265,000 140,587.00 405,587.00 648 3,230 409,465.00
10/01/2027 275,000 129,377.50 404,377.50 648 2,965 407,990.50
10/01/2028 290,000 117,635.00 407,635.00 648 2,690 410,973.00
10/01/2029 300,000 105,165.00 405,165.00 648 2,400 408,213.00
10/01/2030 315,000 92,175.00 407,175.00 648 2,100 409,923.00
10/01/2031 325,000 78,441.00 403,441.00 648 1,785 405,874.00
10/01/2032 340,000 64,206.00 404,206.00 648 1,460 406,314.00
10/01/2033 355,000 49,280.00 404,280.00 648 1,120 406,048.00
10/01/2034 375,000 33,660.00 408,660.00 648 765 410,073.00
10/01/2035 390,000 17,160.00 407,160.00 648 390 408,198.00
6,800,000 5,313,825.58 12,113,825.58 19,440 125,740 12,259,005.58
Jun 21,2005 3:33 pm Prepared by Banc of America Securities LLC Page 6
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LOAN AGREEMENT
By and Between
FLORIDA MUNICIPAL LOAN COUNCIL
and
CITY OF DANIA BEACH, FLORIDA
Dated as of , 2005
FLORIDA MUNICIPAL LOAN COUNCIL
REVENUE BONDS, SERIES 2005D
This Instrument Prepared By:
JoLinda Herring, Esq.
Bryant Miller & Olive P.A.
One Biscayne Tower
2 South Biscayne Boulevard Suite 1480
Miami, Florida 33131
and
Grace E. Dunlap, Esq.
Bryant Miller & Olive P.A.
One Tampa City Center
201 North Franklin Street, Suite 2700
Tampa, Florida 33602
•
TABLE OF CONTENTS
Page
ARTICLEI - DEFINITIONS..........................................................................................................2
ARTICLE II - REPRESENTATIONS, WARRANTIES AND COVENANTS OF
BORROWER AND COUNCIL...........................................................................9
SECTION 2.01. Representations, Warranties and Covenants............................................9
SECTION 2.02. Covenants of Borrower.......................................................................... 12
ARTICLE III - THE LOAN.......................................................................................................... 16
SECTION3.01. The Loan................................................................................................ 16
SECTION 3.02. Evidence of Loan................................................................................... 16
ARTICLE IV - LOAN TERM AND LOAN CLOSING REQUIREMENTS............................... 17
SECTION 4.01. Commencement of Loan Term.............................................................. 17
SECTION 4.02. Termination of Loan Term .................................................................... 17
SECTION 4.03. Loan Closing Submissions .................................................................... 17
ARTICLE V - LOAN REPAYMENTS ........................................................................................ 19
SECTION 5.01. Payment of Basic Payments................................................................... 19
SECTION 5.02. Payment of Surety Bond Costs.............................................................. 19
SECTION 5.03. Payment of Additional Payments .......................................................... 19
SECTION 5.04. Interest Earnings or Investment Losses and Excess Payments..............20
SECTION 5.05. Obligations of Borrower Unconditional................................................21
SECTION 5.06. Refunding Bonds...................................................................................21
SECTION5.07. Prepayment............................................................................................21
ARTICLE VI - DEFEASANCE....................................................................................................22
ARTICLE VII - ASSIGNMENT AND PAYMENT BY THIRD PARTIES................................23
SECTION 7.01. Assignment by Council.............................................. ..23
..........................
SECTION 7.02. Assignment by Borrower...............................
SECTION 7.03. Payments by the Bond Insurer...............................................................23
SECTION 7.04. Payments by the Surety Bond Provider.................................................23
ARTICLE VIII - EVENTS OF DEFAULT AND REMEDIES....................................................24
SECTION 8.01. Events of Default Defined.....................................................................24
SECTION 8.02. Notice of Default ...................................................................................25
SECTION 8.03. Remedies on Default..............................................................................25
SECTION 8.04. [Reserved]..............................................................................................26
SECTION 8.05. No Remedy Exclusive; Waiver, Notice.................................................26
SECTION 8.06. Application of Moneys ..........................................................................26
i
ARTICLE IX - MISCELLANEOUS ............................................................................................27
SECTION9.01. Notices...................................................................................................27
SECTION 9.02. Binding Effect........................................................................................27
SECTION 9.03. Severability............................................................................................27
SECTION 9.04. Amendments, Changes and Modifications............................................28
SECTION 9.05. Execution in Counterparts .....................................................................28
SECTION 9.06. Applicable Law......................................................................................28
SECTION 9.07. Benefit of Bondholders; Compliance with Indenture............................28
SECTION 9.08. Consents and Approvals........................................................................28
SECTION 9.09. Immunity of Officers, Employees and Members of Council and
Borrower............................................................................................28
SECTION 9.10. Captions.................................................................................................28
SECTION 9.11. No Pecuniary Liability of Council...................................................
......28
SECTION 9.12. Payments Due on Holidays....................................................................29
SECTION 9.13. Calculations ...........................................................................................29
SECTION 9.14. Time of Payment....................................................................................29
EXHIBIT A - USE OF LOAN PROCEEDS
EXHIBIT B - CERTIFIED RESOLUTION OF BORROWER
EXHIBIT C - OPINION OF BORROWER'S COUNSEL
EXHIBIT D - DEBT SERVICE SCHEDULE
EXHIBIT E - FORM OF REQUISITION CERTIFICATE
ii
LOAN AGREEMENT
This Loan Agreement (the Loan Agreement or the Agreement ) dated as of
1, 2005 and entered into between the FLORIDA MUNICIPAL LOAN COUNCIL (the
"Council"), a separate legal entity and public body corporate and politic duly created and
existing under the Constitution and laws of the State of Florida, and CITY OF DANIA BEACH,
FLORIDA (the "Borrower"), a duly constituted municipality under the laws of the State of
Florida.
WITNESSETH:
WHEREAS, pursuant to the authority of the hereinafter defined Act, the Council desires
to loan to the Borrower the amount necessary to enable the Borrower to finance, refinance or
reimburse the cost of the Projects, as hereinafter defined, and the Borrower desires to borrow
such amount from the Council subject to the terms and conditions of and for the purposes set
forth in this Agreement; and
WHEREAS, the Council is a separate legal entity and public body corporate and politic
duly created and existing under the laws of the State of Florida organized and existing under and
by virtue of the Interlocal Agreement among initially, the City of DeLand, Florida, the City of
Rockledge, Florida and the City of Stuart, Florida, as amended and supplemented, together with
the additional governmental entities who become members of the Council, in accordance with
Chapter 163, Part 1, Florida Statutes, as amended (the "Interlocal Act"); and
WHEREAS, the Council has determined that there is substantial need within the State for
a financing program (the "Program") which will provide funds for qualifying projects (the
"Projects") for the participating Borrowers; and
WHEREAS, the Council is authorized under the Interlocal Act to issue its revenue bonds
to provide funds for such purposes; and
WHEREAS, the Council has determined that the public interest will best be served and
that the purposes of the Interlocal Act can be more advantageously obtained by the Council's
issuance of revenue bonds in order to loan funds to the Borrowers to finance Projects; and
WHEREAS, the Borrower is authorized under and pursuant to the Act, as amended, to
enter into this Loan Agreement for the purposes set forth herein; and
WHEREAS, the Borrower held a bond referendum on March 8, 2005 wherein six ballot
questions were presented for vote and the qualified electors approved form of such ballot
questions in the election (the "Bond Referendum"); and
WHEREAS, the Council and the Borrower have determined that the lending of funds by
the Council to the Borrower pursuant to the terms of this Agreement and that certain Trust
Indenture dated as of 1, 2005, between the Council and the Trustee (as defined
herein) relating to the Bonds (as hereinafter defined), including any amendments and
supplements thereto (the "Indenture"), will assist in the development and maintenance of the
public welfare of the residents of the State and the areas served by the Borrower, and shall serve
a public purpose by improving the health and living conditions, and providing adequate
governmental services, facilities and programs and will promote the most efficient and
economical development of such services, facilities and programs in the State; and
WHEREAS, neither the Council, the Borrower nor the State or any political subdivision
thereof(other than each Borrower to the extent of their obligations under their respective Loan
Agreements only), shall in any way be obligated to pay the principal of, premium, if any, or
interest on those certain revenue bonds of the Council designated "Florida Municipal Loan
Council Revenue Bonds, Series 20051)" (the "Bonds") as the same shall become due, and the
issuance of the Bonds shall not directly, indirectly or contingently obligate the Borrower, the
State or any political subdivision or municipal corporation thereof to levy or pledge any form of
ad valorem taxation for their payment but shall be payable solely from the funds and revenues
pledged under and pursuant to this Agreement and the Indenture.
NOW, THEREFORE, for and in consideration of the premises hereinafter contained, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Unless the context or use indicates another meaning or intent, the following words and
terms as used in this Loan Agreement shall have the following meanings, and any other
hereinafter defined, shall have the meanings as therein defined.
"Accountant" or "Accountants" means an independent certified public accountant or a
firm of independent certified public accountants.
"Accounts"means the accounts created pursuant to Section 4.02 of the Indenture.
"Act" means, collectively, to the extent applicable to the Borrower, Chapter 163, Part I,
Florida Statutes, Chapter 166, Part Il, Florida Statutes, and Chapter 125, Part 1, as amended, and
all other applicable provisions of law.
"Additional Payments" means payments required by Section 5.03 hereof.
"Alternate Surety Bond" means any letter of credit or surety bond obtained to replace the
Surety Bond then in effect pursuant to the Indenture.
"Alternate Surety Bond Provider" means any provider of an Alternate Surety Bond.
"Arbitrage Regulations" means the income tax regulations promulgated, proposed or
applicable pursuant to Section 148 of the Code as the same may be amended or supplemented or
proposed to be amended or supplemented from time to time.
2
"Authorized Representative" means, when used pertaining to the Council, the Chairman
• of the Council and such other designated members, agents or representatives as may hereafter be
selected by Council resolution; and, when used with reference to a Borrower which is a
municipality, means the person performing the functions of the Mayor or Deputy, Acting or Vice
Mayor thereof or other officer authorized to exercise the powers and perform the duties under the
Loan Agreement, including the City Manager and the Finance Director; and, when used with
reference to a Borrower which is a County means the person performing the function of the
Chairman or Vice Chairman of the Board of County Commissioners of such Borrower; and,
when used with reference to an act or document, also means any other person authorized by
resolution to perform such act or sign such document.
"Basic Payments" means the payments denominated as such in Section 5.01 hereof.
"Board" means the governing body of the Borrower.
"Bond Counsel" means Bryant Miller & Olive P.A., Tampa, Florida or any other
nationally recognized bond counsel.
"Bondholder" or "Holder" or "holder of Bonds" or "Owner" or "owner of Bonds"
whenever used herein with respect to a Bond, means the person in whose name such Bond is
registered.
"Bond Insurance" means the insurance policy of the Bond Insurer which insures payment
of the principal of and interest on the Bonds when due.
"Bond Insurance Premium" means the premiums payable to the Bond Insurer for the
Bond Insurance.
"Bond Insurer" means MBIA Insurance Corporation and any successors thereto.
"Bonds" means the $ Florida Municipal Loan Council Revenue Bonds,
Series 2005D issued pursuant to Article lI of the Indenture.
"Bond Year" means a 12-month period beginning on 2 and ending on and
including the following 1, except for the first period which begins on ,
2005.
"Borrower" means the governmental unit which is described in the first paragraph and on
the cover page of this Loan Agreement and which is borrowing and using the Loan proceeds to
finance, refinance and/or be reimbursed for, all or a portion of the costs of one or more Projects.
"Borrowers" means, collectively, the Borrower executing this Loan Agreement and the
other governmental units which have received loans from the Council made from proceeds of the
Bonds.
3
"Business Day" means any day of the year which is not a Saturday or Sunday or a day on
which banking institutions located in New York City or the State are required or authorized to
remain closed or on which the New York Stock Exchange is closed.
"Certificate," "Statement," "Request," "Requisition" and "Order" of the Council mean,
respectively, a written certificate, statement, request, requisition or order signed in the name of
the Council by its Chairman, Program Administrator or such other person as may be designated
and authorized to sign for the Council. Any such instrument and supporting opinions or
representations, if any, may, but need not, be combined in a single instrument with any other
instrument, opinion or representation, and the two or more so combined shall be read and
construed as a single instrument.
"Closing" means the closing of a Loan pursuant to the Indenture and this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, and the regulations
promulgated, proposed or applicable thereunder.
"Commencement Date" means the date when the term of this Agreement begins and the
obligation of the Borrower to make Loan Repayments accrues.
"Council" means the Florida Municipal Loan Council.
"Cost" means "Cost" as defined in the Act.
"Cost of Issuance Fund" means the fund by that name established pursuant to Section
4.02 of the Indenture.
"Counsel" means an attorney duly admitted to practice law before the highest court of
any state and, without limitation, may include legal counsel for either the Council or the
Borrowers.
"Default" means an event or condition the occurrence of which would, with the lapse of
time or the giving of notice or both, become an Event of Default.
"Event of Default" shall have the meaning ascribed to such term in Section 8.01 of this
Agreement.
"Financial Newspaper" or "Journal" means The Wall Street Journal or The Bond Buffer
or any other newspaper or journal containing financial news, printed in the English language,
customarily published on each Business Day and circulated in New York, New York, and
selected by the Trustee, whose decision shall be final and conclusive.
"Fiscal Year"means the fiscal year of the Borrower.
"Fitch" means Fitch Ratings, a corporation organized and existing under the laws of the
State of Delaware, its successors and assigns and if such corporation shall be dissolved or
4
liquidated or shall no longer perform the functions of a securities rating agency, "Fitch" shall be
deemed to refer to any other nationally recognized securities rating agency designated by the
Council, with approval of the Bond Insurer, by notice to the Trustee.
"Funds" means the funds created pursuant to Section 4.02 of the Indenture.
"Governmental Obligations" means (i) direct and general obligations of the United States
of America, or those which are unconditionally guaranteed as to principal and interest by the
same, including interest on obligations of the Resolution Funding Corporation and (ii) pre-
refunded municipal obligations meeting the following criteria:
(a) the municipal obligations may not be callable prior to maturity or, alternatively,
the trustee has received irrevocable instructions concerning their calling and redemption;
(b) the municipal obligations are secured by cash or securities described in
subparagraph (i) above (the "Defeasance Obligations"), which cash or Defeasance Obligations
may be applied only to interest, principal, and premium payments of such municipal obligations;
(c) the principal and interest of the Defeasance Obligations (plus any cash in the
fund) are sufficient to meet the liabilities of the municipal obligations;
(d) the Defeasance Obligations serving as security for the municipal obligations must
be held by an escrow agent or a trustee; and
(e) the Defeasance Obligations are not available to satisfy any other claims, including
those against the Trustee or escrow agent.
Additionally, evidences of ownership of proportionate interests in future interest and
principal payments of Defeasance Obligations are permissible. Investments in these
proportionate interests are limited to circumstances wherein (a) a bank or trust company acts as
custodian and holds the underlying obligations; (b) the owner of the investment is the real party
in interest and has the right to proceed directly and individually against the obligor of the
underlying obligations; and (c) the underlying obligations are held in a special account separate
and apart from the custodian's general assets, and are not available to satisfy any claim of the
custodian, any person claiming through the custodian, or any person to whom the custodian may
be obligated.
"Indenture" means the Trust Indenture dated as of 1, 2005 between the Council
and the Trustee, including any indentures supplemental thereto, pursuant to which (i) the Bonds
are authorized to be issued and (ii) the Council's interest in the Trust Estate is pledged as
security for the payment of principal of, premium, if any, and interest on the Bonds.
"Interest Payment Date" means 1 and 1 of each year, commencing
1, 2005.
"Interest Period" means the semi-annual period between Interest Payment Dates.
5
® "Interlocal Act" means Chapter 163, Part 1, Florida Statutes.
"Interlocal Agreement" means that certain Interlocal Agreement originally dated as of
December 1, 1998, initially among the City of Stuart, Florida, the City of Rockledge, Florida and
the City of DeLand, Florida, together with the additional governmental entities who become
members of the Council, all as amended and supplemented from time to time.
"Liquidation Proceeds" means amounts received by the Trustee or the Council in
connection with the enforcement of any of the remedies under this Loan Agreement after the
occurrence of an "Event of Default" under this Loan Agreement which has not been waived or
cured.
"Loan" means the Loan made to the Borrower from Bond proceeds to finance certain
Project(s) in the amount specified in Section 3.01 herein.
"Loan Agreement" or "Loan Agreements" means this Loan Agreement and any
amendments and supplements hereto.
"Loan Repayment Date" means 20, 2005, and thereafter each 20th
and 20th, or if such day is not a Business Day, the next preceding Business Day.
"Loan Repayments" means the payments of principal and interest and other payments
payable by the Borrower pursuant to the provisions of this Loan Agreement, including, without
limitation, Additional Payments.
"Loan Tenn" means the term provided for in Article IV of this Loan Agreement.
"Loans" means all loans made by the Council under the Indenture to the Borrowers.
"Moody's" means Moody's Investors Service, a corporation organized and existing under
the laws of the State of Delaware, its successors and assigns, and, if such corporation shall be
dissolved or liquidated or shall no longer perform the functions of a securities rating agency,
"Moody's" shall be deemed to refer to any other nationally recognized securities rating agency
designated by the Council, with the approval of the Bond Insurer, by notice to the Trustee.
"Non-Ad Valorem Revenues" means all revenues and taxes of the Borrower derived from
any source whatever other than ad valorem taxation on real and personal property, which are
legally available for Additional Payments.
"Opinion of Bond Counsel" means an opinion by Bond Counsel which is selected by the
Council and acceptable to the Trustee.
"Opinion of Counsel" means an opinion in writing of a legal counsel, who may, but need
not be, counsel to the Council, a Borrower or the Trustee.
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"Outstanding Bonds" or "Bonds Outstanding" means all Bonds which have been
authenticated and delivered by the Trustee under the Indenture, except:
ra Bonds canceled after purchase in the o en m r e( ) p p a k t or because of payment at or
redemption prior to maturity;
(b) Bonds deemed paid under Article IX of the Indenture; and
(c) Bonds in lieu of which other Bonds have been authenticated under Section 2.06,
2.07 or 2.09 of the Indenture.
"Person" means an individual, a corporation, a partnership, an association, a trust or any
other entity or organization including a government or political subdivision or an agency or
instrumentality thereof.
"Principal Fund" means the fund by that name created by Section 4.02 of the Indenture.
"Principal Payment Date" means the maturity date or mandatory redemption date of any
Bond.
"Program" means the Council's program of making Loans under the Act and pursuant to
the Indenture.
"Program Administrator" means the Florida League of Cities, Inc., a non-profit Florida
Mcorporation.
"Project" or "Projects" means a governmental undertaking approved by the governing
body of a Borrower for a public purpose, including the refinancing of any indebtedness.
"Project Loan Fund" means the fund by that name established pursuant to Section 4.02 of
the Indenture.
"Proportionate Share" means, with respect to any Borrower, a fraction the numerator of
which is the outstanding principal amount of the Loan of such Borrower made from proceeds of
the Bonds and the denominator of which is the outstanding principal amount of all Loans made
from proceeds of the Bonds and then outstanding.
"Purchase Price" means the purchase price of one or more items of a Project payable by a
Borrower to the seller of such items.
"Redemption Price" means, with respect to any Bond (or portion thereof), the principal
amount of such Bond (or portion) plus the applicable premium, if any, payable upon redemption
pursuant to the provisions of such Bond and the Indenture.
"Reserve Fund" means the fund by that name created by Section 4.02 of the Indenture.
7
"Revenue Fund" means the fund by that name created by Section 4.02 of the Indenture.
"Revenues" means all Loan Repayments paid to the Trustee for the respective accounts
of the Borrowers for deposit in the Principal Fund and Revenue Fund to pay principal of,
premium, if any, and interest on the Bonds upon redemption, at maturity or upon acceleration of
maturity, or to pay interest on the Bonds when due, and all receipts of the Trustee credited to the
Borrower under the provisions of this Loan Agreement.
"S&P" means Standard & Poor's, a division of the McGraw-Hill Companies, Inc., a
corporation organized and existing under the laws of the State of New York, its successors and
assigns, and, if such corporation shall be dissolved or liquidated or shall no longer perform the
functions of a securities rating agency, "S&P" shall be deemed to refer to any other nationally
recognized securities rating agency designated by the Council, with the approval of the Bond
Insurer, by notice to the Trustee.
"Special Record Date" means the date established pursuant to Section 9.05 of the
Indenture as a record date for the payment of defaulted interest, if any, on the Bonds.
"State" means the State of Florida.
"Supplemental Indenture"means any indenture hereafter duly authorized and entered into
between the Council and the Trustee, supplementing, modifying or amending the Indenture, but
only if and to the extent that such Supplemental Indenture is specifically authorized in the
Indenture.
"Surety Bond" means the surety bond issued by the Surety Bond Provider guaranteeing
certain payments into the Reserve Fund with respect to the Bonds and any other series of the
Council's bonds or any Alternate Surety Bond.
"Surety Bond Provider" means MBIA Insurance Corporation and any successors thereto
or any Alternate Surety Bond Provider.
"Trust Estate" means the property, rights, Revenues and other assets pledged and
assigned to the Trustee pursuant to the Granting Clauses of the Indenture.
"Trustee" means Wachovia Bank, National Association, as Trustee, or any successor
thereto under the Indenture.
8
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f
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF BORROWER AND COUNCIL
SECTION 2.01. Representations, Warranties and Covenants. The Borrower and the
Council represent, warrant and covenant on the date hereof for the benefit of the Trustee, the
Borrower, the Bond Insurer and Bondholders, as applicable, as follows:
(a) Organization and Authority. The Borrower:
(1) is a duly organized and validly existing municipality of the State and is a
duly organized and validly existing Borrower; and
(2) has all requisite power and authority to own and operate its properties and
to carry on its activities as now conducted and as presently proposed to be conducted.
(b) Full Disclosure. There is no fact that the Borrower knows of which has not been
specifically disclosed in writing to the Council and the Bond Insurer that materially and
adversely affects or, except for pending or proposed legislation or regulations that are a matter of
general public information affecting State of Florida municipalities generally, that will materially
affect adversely the properties, activities, prospects or condition (financial or otherwise) of the
Borrower or the ability of the Borrower to perform its obligations under this Agreement.
The financial statements, including balance sheets, and any other written statement
furnished by the Borrower to the Council, Banc of America Securities LLC, as underwriter of the
Bonds and the Bond Insurer do not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements contained therein or herein not misleading.
There is no fact known to the Borrower which the Borrower has not disclosed to the Council,
Banc of America Securities LLC, as underwriter of the Bonds and the Bond Insurer in writing
which materially affects adversely or is likely to materially affect adversely the financial
condition of the Borrower, or its ability to make the payments under this Agreement when and as
the same become due and payable.
(c) Pending Litigation. To the knowledge of the Borrower there are no proceedings
pending, or to the knowledge of the Borrower threatened, against or affecting the Borrower,
except as specifically described in writing to the Council, Banc of America Securities LLC, as
underwriter of the Bonds and the Bond Insurer, in any court or before any governmental
authority or arbitration board or tribunal that, if adversely determined, would materially and
adversely affect the properties, prospects or condition (financial or otherwise) of the Borrower,
or the existence or powers or ability of the Borrower to enter into and perform its obligations
under this Agreement.
(d) Borrowing Legal and Authorized. The execution and delivery of this Agreement
and the consummation of the transactions provided for in this Agreement and compliance by the
Borrower with the provisions of this Agreement:
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(1) are within the powers of the Borrower and have been duly and effectively
authorized by all necessary action on the part of the Borrower; and
(2) do not and will not (i) conflict with or result in any material breach of any
of the terms, conditions or provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the Borrower
pursuant to any indenture, loan agreement or other agreement or instrument (other than this
Agreement) or restriction to which the Borrower is a party or by which the Borrower, its
properties or operations are bound as of the date of this Agreement or (ii) with the giving of
notice or the passage of time or both, constitute a breach or default or so result in the creation or
imposition of any lien, charge or encumbrance, which breach, default, lien, charge or
encumbrance (described in (i) or (ii)) could materially and adversely affect the validity or the
enforceability of this Agreement or the Borrower's ability to perform fully its obligations under
this Agreement; nor does such action result in any violation of the provisions of the Act, or any
laws, ordinances, governmental rules or regulations or court orders to which the Borrower, its
properties or operations may be bound.
(e) No Defaults. No event has occurred and no condition exists that constitutes an
Event of Default, or which, upon the execution and delivery of this Agreement and/or the
passage of time or giving of notice or both, would constitute an Event of Default. The Borrower
is not in violation in any material respect, and has not received notice of any claimed violation
(except such violations as (i) heretofore have been specifically disclosed in writing to, and have
been in writing specifically consented to by the Council and the Bond Insurer and (ii) do not, and
shall not, have any material adverse effect on the transactions herein contemplated and the
compliance by the Borrower with the terms hereof), of any terms of any agreement or other
instrument to which it is a party or by which it, its properties or operations may be bound, which
may materially adversely affect the ability of the Borrower to perform hereunder.
(f) Governmental Consent. The Borrower has obtained, or will obtain, all permits,
approvals and findings of non-reviewability required as of the date hereof by any governmental
body or officer for the acquisition and/or installation of the Project, including construction and
renovation work, the financing or refinancing thereof or the reimbursement of the Borrower
therefor, or the use of such Project; the Borrower has complied with or will comply with all
applicable provisions of law requiring any notification, declaration, filing or registration with any
agency or other governmental body or officer in connection with the acquisition or installation of
the Project, including construction and renovation work necessary for such installation, financing
or refinancing thereof or reimbursement of the Borrower therefor; and any such action,
construction, installation, financing, refinancing or reimbursement contemplated in this Loan
Agreement is consistent with, and does not violate or conflict with, the terms of any such agency
or other governmental consent, order or other action which is applicable thereto. No further
consent, approval or authorization of, or filing, registration or qualification with, any
governmental authority is required on the part of the Borrower as a condition to the execution
and delivery of this Loan Agreement, or to amounts becoming outstanding hereunder.
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(g) Compliance with Law. The Borrower is in compliance with all laws, ordinances,
governmental rules and regulations to which it is subject and which are material to its properties,
operations, finances or status as a municipal corporation or subdivision of the State.
(h) Use of Proceeds.
(1) The Borrower will apply the proceeds of the Loan from the Council solely
for the financing for the cost of the Projects as set forth in Exhibit A hereto. If any component of
the Project listed in Exhibit A is not paid for out of the proceeds of the Loan at the Closing of the
Loan, Borrower shall, as quickly as reasonably possible, with due diligence, and in any event
prior to , 2008, use the remainder of the amounts listed in Exhibit A and any investment
earnings thereon to pay the cost of the Project, provided that, such time limit may be extended by
the written consent of the Council with notice to the Trustee, and provided further that Borrower
may amend Exhibit A without the consent of the Council or the Trustee (but with notice thereto)
but with a favorable opinion of Bond Counsel (to the effect that such an amendment and the
completion of the revised Project will not adversely affect the validity or tax-exempt status of the
Bonds) regarding the amended Exhibit A, to provide for the financing of a different or additional
Project if Borrower, after the date hereof, deems it to not be in the interest of Borrower to acquire
or construct any item of such Project or the cost of the Project proves to be less than the amounts
listed on Exhibit A and the investment earnings thereon. Notwithstanding the foregoing all such
proceeds shall be expended prior to 1, 2008 and all such proceeds shall be spent in
accordance with the Bond Referendum. Borrower will provide the Trustee with a requisition in
the form of the requisition attached hereto as Exhibit E for the expenditure of the remaining
amounts of the Loan in the Project Loan Fund.
(2) Items of cost of the Project which may be financed include all reasonable
or necessary direct or indirect costs of or incidental to the acquisition, construction or installation
of the Project, including operational expenses during this construction period which would
qualify for capitalization under generally accepted accounting principles, the incidental costs of
placing the same in use and financing expenses (including the application or origination fees, if
any, of the Bond Insurer and the Council and Borrower's Counsel fees), but not operating
expenses.
(3) Borrower understands that the actual Loan proceeds received by it are less
than the sum of the face amount of the Loan Agreement plus the reoffering premium in an
amount equal to a discount as described in Section 3.01 hereof. Borrower will accordingly be
responsible for repaying, through the Basic Payments portion of its Loan Repayments, the
portion of the Bonds issued to fund only its Loan including the portion issued to fund the
underwriting discount, original issue discount and other fees and costs of issuing the Bonds.
(4) The Borrower covenants that it will make no use of the proceeds of the
Bonds which are in its control at any time during the term of the Bonds which would cause such
Bonds to be "Arbitrage Bonds" within the meaning of Section 148 of the Code.
(5) The Borrower, by the Trustee's acceptance of the Indenture, covenants
that the Borrower shall neither take any action nor fail to take any action or to the extent that it
11
may do so, permit any other party to take any action which, if either taken or not taken, would
adversely affect the exclusion from gross income for Federal income tax purposes of interest on
the Bonds.
(i) Project. Allitems constituting the Project are permitted to be financed with the
proceeds of the Bonds and the Loan pursuant to the Act.
0) Compliance with Interlocal Act and Interlocal Agreement. All agreements and
transactions provided for herein or contemplated hereby are in full compliance with the terms of
the Interlocal Agreement and the Interlocal Act.
SECTION 2.02. Covenants of Borrower. The Borrower makes the following
covenants and representations as of the date first above written and such covenants shall continue
in full force and effect during the Loan Term:
(a) Security For Loan Repayment. For the prompt payment of the Basic Payment as
required under this Loan Agreement, the full faith, credit and taxing power of the Borrower are
irrevocably pledged. In each year while the Loan is outstanding, there shall be levied and
collected a tax without limitation as to rate or amount on all assessable property within the
Borrower, sufficient in amount to pay the Basic Payment, as the same shall become due, after
applying any other funds which may be available for such Basic Payment and which shall
become due, after applying any other funds which may be available for such Basic Payment and
which shall actually be so applied. For the payment of the Additional Payments, the Borrower
agrees to budget and appropriate legally available Non Ad Valorem Revenues to pay Additional
Payments. Such covenant is subject in all respects to the payment of obligations secured by a
pledge of a lien upon such Non Ad Valorem Revenues heretofore entered into.
(b) Delivery of Information to the Bond Insurer. Borrower shall deliver to the Bond
Insurer and the Council as soon as available and in any event within 270 days after the end of
each Fiscal Year an audited statement of its financial position as of the end of such Fiscal Year
and the related statements of revenues and expenses, fund balances and changes in fund balances
for such Fiscal Year, all reported by an independent certified public accountant, whose report
shall state that such financial statements present fairly Borrower's financial position as of the end
of such Fiscal Year and the results of operations and changes in financial position for such Fiscal
Year.
(c) Information. Borrower's chief financial officer shall, at the reasonable request of
the Bond Insurer, discuss Borrower's financial matters with the Bond Insurer or their designee
and provide the Bond Insurer with copies of any documents reasonably requested by the Bond
Insurer or its designee unless such documents or material are protected or privileged from
.disclosure under applicable Florida law.
(d) Ad Valorem Taxes. In each fiscal year while the Loan is outstanding there shall
be assessed, levied and collected the ad valorem tax sufficient in amount to pay the principal of
and interest on the Loan as the same shall become due, after deducting therefrom any other funds
12
which may be available for such principal and interest payment and which shall actually be so
applied.
The Borrower will diligently enforce its rights to receive the ad valorem tax as
g Y g
provided by law and will diligently enforce and collect such tax. The Borrower will not take any
action that will impair or adversely affect its rights to levy, collect and receive the tax, or impair
or adversely affect in any manner the pledge made herein, or the rights of the holders of the
Bonds.
(e) Further Assurance. The Borrower shall execute and deliver to the Trustee all such
documents and instruments and do all such other acts and things as may be reasonably necessary
to enable the Trustee to exercise and enforce its rights under this Loan Agreement and to realize
thereon, and record and file and re-record and re-file all such documents and instruments, at such
time or times, in such manner and at such place or places, all as may be reasonably necessary or
required by the Trustee to validate, preserve and protect the position of the Trustee under this
Loan Agreement.
(f) Keeping of Records and Books of Account. The Borrower shall keep or cause to
be kept proper records and books of account, in which correct and complete entries will be made
in accordance with generally accepted accounting principles, consistently applied (except for
changes concurred in by the Borrower's independent auditors) reflecting all of its financial
transactions.
(g) Payment of Taxes, Etc. The Borrower shall pay all legally contracted obligations
when due and shall pay all taxes, assessments and governmental charges or levies imposed upon
it or upon its income or profits, or upon any properties belonging to it, prior to the date on which
penalties attach thereto, and all lawful claims, which, if unpaid, might become a lien or charge
upon any of its properties, provided that it shall not be required to pay any such tax, assessment,
charge,, levy or claim which is being contested in good faith and by appropriate proceedings,
which shall operate to stay the enforcement thereof.
(h) Compliance with Laws, Etc. Subject to an annual appropriation of legally
available funds, the Borrower shall comply with the requirements of all applicable laws, the
terms of all grants, rules, regulations and lawful orders of any governmental authority, non-
compliance with which would, singularly or in the aggregate, materially adversely affect its
business, properties, earnings, prospects or credit, unless the same shall be contested by it in
good faith and by appropriate proceedings which shall operate to stay the enforcement thereof.
(i) Tax-exempt Status of Bonds. The Council and the Borrower understand that it is
the intention hereof that the interest on the Bonds not be included within the gross income of the
holders thereof for federal income tax purposes. In furtherance thereof, the Borrower and the
Council each agree that they will take all action within their control which is necessary in order
for the interest on the Bonds or this Loan to remain excluded from gross income for federal
.income taxation purposes and shall refrain from taking any action which results in such interest
becoming included in gross income.
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The Borrower and the Council further covenant that, to the extent they have control over
the proceeds of the Bonds, they will not take any action or fail to take any action with respect to
the investment of the proceeds of any Bonds, with respect to the payments derived from the
Bonds or hereunder or with respect to the issuance of other Council obligations, which action or
failure to act may cause the Bonds to be "Arbitrage Bonds" within the meaning of such term as
used in Section 148 of the Code and the regulations promulgated thereunder. In furtherance of
the covenant contained in the preceding sentence, the Borrower and the Council agree to comply
with the Tax Certificate as to Arbitrage and the provisions of Section 141 through 150 of the
Internal Revenue Code of 1986, as amended, including the letter of instruction attached as an
Exhibit to the Tax Certificate, delivered by Bryant Miller & Olive P.A. to the Borrower and the
Council simultaneously with the issuance of the Bonds, as such letter may be amended from time
to time, as a source of guidelines for achieving compliance with the Code.
0) Information Reports. The Borrower covenants to provide the Council with all
material and information it possesses or has the ability to possess necessary to enable the Council
to file all reports required under Section 149(e) of the Code to assure that interest paid by the
Council on the Bonds shall, for purposes of the federal income tax, be excluded from gross
income.
(k) Limited Obligations. Anything in this Loan Agreement to the contrary
notwithstanding, it is understood and agreed that all obligations of the Borrower hereunder with
respect to the Additional Payments shall be payable only from Non-Ad Valorem Revenues
budgeted and appropriated as provided for hereunder and nothing herein shall be deemed to
pledge ad valorem taxation revenues or to permit or constitute a mortgage or lien upon any assets
or property owned by the Borrower and no Bondholder or any other person, including the
Council, the Trustee or the Bond Insurer, may compel the levy of ad valorem taxes with respect
to Additional Payments on real or personal property within the boundaries of the Borrower. The
obligations hereunder do not constitute an indebtedness of the Borrower within the meaning of
any constitutional, statutory or charter provision or limitation, and neither the Trustee, the
Council, the Bond Insurer, or the Bondholders or any other person shall have the right to compel
the exercise of the ad valorem taxing power of the Borrower or taxation of any real or personal
property therein for the Additional Payments by the Borrower of its obligations hereunder.
Except to the extent expressly set forth in this Loan Agreement, this Loan Agreement and the
obligations of the Borrower hereunder shall not be construed as a limitation on the ability of the
Borrower to pledge or covenant to pledge said Non-Ad Valorem Revenues or any revenues or
taxes of the Borrower for other legally permissible purposes. Notwithstanding any provisions of
this Agreement, the Indenture or the Bonds to the contrary, the Borrower shall never be obligated
to maintain or continue any of the activities of the Borrower which generate user service charges,
regulatory fees or any Non-Ad Valorem Revenues or the rates for such services or regulatory
fees. Neither this Loan Agreement nor the obligations of the Borrower hereunder shall be
construed as a pledge of or a lien on all or any legally available Non-Ad Valorem Revenues of
the Borrower, but shall be payable solely as provided in Section 2.02(a) hereof and is subject in
all respects to the provisions of Section 166.241, Florida Statutes, and is subject, further, to the
payment of services and programs which are for essential public purposes affecting the health,
welfare and safety of the inhabitants of the Borrower. It is the intent of the parties hereto and
they do hereby covenant and agree, that the liability of the Borrower hereunder is a several
14
liability of the Borrower expressly limited to the Loan Repayments and the Borrower shall have
no joint liability with any other Borrower or the Council for any of their respective liabilities,
except to the extent expressly provided hereunder.
The Council and the Borrower understand that the amounts available to be budgeted and
appropriated to make Additional Payments hereunder is subject to the obligation of the Borrower
to provide essential services; however, such obligation is cumulative and would carry over from
Fiscal Year to Fiscal Year.
(1) Reporting Requirements. (i) The Borrower will file or cause to be filed with the
Bond Insurer and with the Council any official statement issued by, or on behalf of, the Borrower
in connection with the incurrence of any additional indebtedness by the Borrower. Such official
statements shall be filed within sixty (60) days after the publication thereof.
(ii) The Borrower agrees to provide not later than December 31 of each year, a
certificate of its Chief Financial Officer stating that to the best of its knowledge the Borrower is
in compliance with the terms and conditions of this Loan Agreement, or, specifying the nature of
any noncompliance and the remedial action taken or proposed to be taken to cure such
noncompliance.
•
15
ARTICLE III
• THE LOAN
SECTION 3.01. The Loan. The Council hereby agrees to loan to the Borrower and the
Borrower hereby agrees to borrow from the Council the sum of $ ($ par
amount of Bonds plus $ net reoffering premium). This amount includes an amount
equal to $ %), including underwriter's discount, which reflects the
Borrower's share of the cost of the initial issuance of the Bonds subject to the terms and
conditions contained in this Loan Agreement and in the Indenture. The amounts advanced net of
the cost of the initial issuance are to be used by the Borrower for the purposes of financing or
refinancing the cost of, or receiving reimbursement for the equity in, the Projects in accordance
with the provisions of this Loan Agreement.
SECTION 3.02. Evidence of Loan. The Borrower's obligation hereunder to repay
amounts advanced pursuant to Section 3.01, together with interest thereon, and other payments
required under this Loan Agreement, shall be evidenced by this Loan Agreement.
•
16
ARTICLE IV
LOAN TERM AND LOAN CLOSING REQUIREMENTS
SECTION 4.01. Commencement of Loan Term. The Borrower's obligations under
this Loan Agreement shall commence on the date hereof unless otherwise provided in this Loan
Agreement.
SECTION 4.02. Termination of Loan Term. The Borrower's obligations under this
Loan Agreement shall terminate after payment in full of all amounts due under this Loan
Agreement and all amounts not theretofore paid shall be due and payable at the times and in the
amounts set forth in Exhibit D attached hereto; provided, however, that all covenants and all
obligations provided hereunder specified to so survive (including the obligation of the Borrower
to pay its share of the rebate obligations of the Council owed on the Bonds and agreed to by the
Borrowers pursuant to Section 5.03(b)(7) hereof) shall survive the termination of this Loan
Agreement and the payment in full of principal and interest hereunder. Upon termination of the
Loan Term as provided above, the Council and the Trustee shall deliver, or cause to be delivered,
to the Borrower an acknowledgment thereof.
SECTION 4.03. Loan Closing Submissions. Concurrently with the execution and
delivery of this Loan Agreement, the Borrower is providing to the Trustee the following
documents each dated the date of such execution and delivery unless otherwise provided below:
(a) Certified resolution of the Borrower substantially in the form of Exhibit B
attached hereto;
(b) An opinion of the Borrower's Counsel in the form of Exhibit C attached hereto to
the effect that the Loan Agreement is a valid and binding obligation of the Borrower and opining
to such other matters as may be reasonably required by Bond Counsel, underwriter's counsel and
the Bond Insurer and acceptable to Borrower's Counsel;
(c) A certificate of the officials of the Borrower who sign this Loan Agreement to the
effect that the representations and warranties of the Borrower are true and correct;
(d) A certificate signed by the Authorized Representative of the Borrower, in form
and substance satisfactory to Bond Counsel, stating (i) the estimated dates and the amounts of
projected expenditures for the Project and (ii) that it is reasonably anticipated by the Borrower
that the Loan proceeds will be fully advanced therefor and expended by the Borrower prior to
2008, and that the projected expenditures are based on the reasonable expectations
of the Borrower having due regard for its capital needs and the revenues available for the
repayment thereof.
(e) This executed Loan Agreement;
(f) An opinion (addressed to the Council, the Trustee, the Bond Insurer and the
Borrower) of Bond Counsel to the effect that such financing, refinancing or reimbursement with
•
17
Loan proceeds is permitted under the Act, the Indenture and the resolution authorizing this1c)an
Agreement and will not cause the interest on the Bonds to be included in gross income for
purposes of federal income taxation or adversely affect the validity, due authorization for or
legality of the Bonds; and
(g) Such other certificates, documents, opinions and information as the Council, the
Bond Insurer, the Trustee or Bond Counsel may require, such requirement to be evidenced (in
the case of parties other than the Trustee) by written notice of such party to the Trustee of such
requirement.
All opinions and certificates shall be dated the date of the Closing.
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ARTICLE V
. LOAN REPAYMENTS
SECTION 5.01. Payment of Basic Payments. Borrower shall pay to the order of the
Council all Loan Repayments in lawful money of the United States of America to the Trustee.
No such Loan Repayment shall be in an amount such that interest on the Loan is in excess of the
maximum rate allowed by the laws of the State of Florida or of the United States of America.
The Loan shall be repaid in Basic Payments, consisting of:
(a) principal in the amounts and on the dates set forth in Exhibit D; plus
(b) interest calculated at the rates, in the amounts and on the dates set forth in
Exhibit D;
On or before the fifteenth (I5th) day of the month immediately preceding each Interest
Payment Date, the Trustee shall give Borrower notice in writing of the total amount of the next
Basic Payment due. The Basic Payments shall be due on each 20th and 20th,
or if such day is not a Business Day, the next preceding Business Day (a "Loan Repayment
Date"), commencing 20, 2005, and extending through 20, 20_, unless the due
date of the Basic Payments is accelerated pursuant to the terms of Section 8.03 hereof.
SECTION 5.02. Payment of Surety Bond Costs. The Borrower recognizes that the
Surety Bond Provider has provided to the Council the Surety Bond for deposit to the Reserve
• Fund in lieu of a cash payment or deposit by the Borrower. The Surety Bond shall secure and
satisfy the Reserve Requirement (as defined in the Indenture) and any other reserve requirement
of bonds as listed on Annex A to the Surety Bond. The Borrower or any other borrower whose
loan was funded with proceeds of a bond issue listed on Annex A to the Surety Bond, may draw
on the Surety Bond in an amount equal to or less than the limit of the Surety Bond, all in
accordance with Section 4.08 of the Indenture. The Borrower hereby agrees to pay to the
Trustee an amount equal to the amount drawn by the Borrower (or on behalf of the Borrower) on
the Surety Bond as set forth in subsection (c) of Section 5.03 hereof. Such Surety Bond may be
replaced by an Alternate Surety Bond issued with respect to funding the reserve fund of
subsequent bonds issued by the Council whose reserve fund shall be on a parity with the Bonds,
all in accordance with Section 4.08 of the Indenture.
SECTION 5.03. Payment of Additional Payments. In addition to Basic Payments,
Borrower agrees to pay on demand of the Council or the Trustee, the following Additional
Payments:
(a) (i) Borrower's Proportionate Share of: the annual fees or expenses of the
Council, if any, including the fees of any provider of arbitrage rebate calculations; the Bond
Insurance Premium of the Bond Insurer (to the extent not previously paid from the Cost of
Issuance Fund); the fees of the Program Administrator and the fees of the rating agencies (to the
extent not previously paid from the Cost of Issuance Fund); and (ii) Borrower's equal share of
the annual fees of the Trustee; annual fees of the Registrar and Paying Agent; and the Surety
19
Bond premium of the Surety Bond Provider and any related fees in connection with the Surety
Bond (to the extent not previously paid from the Cost of Issuance Fund).
(b) All reasonable fees and expenses of the Council or Trustee relating to this Loan
Agreement, including, but not limited to:
(1) the cost of reproducing this Loan Agreement;
(2) the reasonable fees and disbursements of Counsel utilized by the Council,
the Trustee and the Bond Insurer in connection with the Loan, this Loan Agreement and the
enforcement thereof,
(3) reasonable extraordinary fees of the Trustee following an Event of Default
hereunder;
(4) all other reasonable out-of-pocket expenses of the Trustee and the Council
in connection with the Loan, this Loan Agreement and the enforcement thereof,
(5) all taxes (including any recording and filing fees) in connection with the
execution and delivery of this Loan Agreement and the pledge and assignment of the Council's
right, title and interest in and to the Loan and the Loan Agreement, pursuant to the Indenture
(and with the exceptions noted therein), and all expenses, including reasonable attorneys' fees,
relating to any amendments, waivers, consents or collection or enforcement proceedings
• pursuant to the provisions hereof,
(6) all reasonable fees and expenses of the Bond Insurer relating directly to
the Loan; and
(7) the Borrower's share of any amounts owed to the United States of
America as rebate obligations on the Bonds related to the Borrower's Loan, which obligation
shall survive the termination of this Loan Agreement.
(c) For repayment of the Surety Bond held by the Trustee an amount equal to any
amount drawn by the Borrower (or on behalf of the Borrower) from the Surety Bond due to the
Borrower's failure to pay its Basic Payments in accordance with Section 5.01 hereof, at the times
and in the manner and together with interest and expense due thereon all as provided in Section
4.08(a) of the Indenture undertaken in order to reinstate the Surety Bond. The Borrower shall
repay such amount drawn on the Surety Bond due to the Borrower's failure to pay its Basic
Payments with the first available funds after payment of the current Loan Repayment. The
Borrower shall repay only the amount drawn due to its failure to pay its Basic Payment.
SECTION 5.04. Interest Earnings or Investment Losses and Excess Payments.
(a) On each Interest Payment Date the Trustee shall credit against Borrower's
obligation to pay its Loan Repayments, Borrower's share of any interest earnings which were
received during the prior Interest Period by the Trustee on the Funds and Accounts (except the
20
Project Loan Fund) held under the Indenture, or shall increase the Borrower's obligation to pay
• its Loan Repayment, by Borrower's share of any investment losses which were incurred during
the prior Interest Period on the Funds and Accounts (except the Project Loan Fund) held under
the Indenture.
(b) The credits provided for in (a) shall not be given to the extent the Borrower is in
default in payment of its Loan Repayments. If past-due Loan Repayments are later collected
from such defaulting Borrower, the amount of the missed credit shall, to the extent of the amount
collected, be credited in proportion to the amount of credit missed, to the now non-defaulting
Borrower from the past-due Loan Repayments.
(c) The credits may be accumulated. If the credit allowable for an Interest Period is
more than required on the next ensuing Interest Payment Date to satisfy the current Loan
Repayment, it may be used on the following Interest Payment Date.
SECTION 5.05. Obligations of Borrower Unconditional. Subject in all respects to the
provisions of this Loan Agreement, including but not limited to Section 2.02(a) and (k) hereof,
the obligations of Borrower to make the Loan Repayments required hereunder and to perform
and observe the other agreements on its part contained herein, shall be absolute and
unconditional, and shall not be abated, rebated, set-off, reduced, abrogated, terminated, waived,
diminished, postponed or otherwise modified in any manner or to any extent whatsoever, while
any Bonds remain outstanding or any Loan Repayments remain unpaid, regardless of any
contingency, act of God, event or cause whatsoever. This Loan Agreement shall be deemed and
• construed to be a"net contract," and Borrower shall pay absolutely net the Loan Repayments and
all other payments required hereunder, regardless of any rights of set-off, recoupment, abatement
or counterclaim that Borrower might otherwise have against the Council, the Trustee, the Bond
Insurer or any other party or parties.
SECTION 5.06. Refunding Bonds. In the event the Bonds are refunded, all references
in this Loan Agreement to Bonds shall be deemed to refer to the refunding bonds or, in the case
of a crossover refunding, to the Bonds and the refunding bonds (but Borrower shall never be
responsible for any debt service on or fees relating to crossover refunding bonds which are
covered by earnings on the escrow fund established from the proceeds of such bonds). The
Council agrees not to issue bonds or other debt obligations to refund the portion of the Bonds
allocable to this Agreement without the prior written consent of the Authorized Representative of
the Borrower.
SECTION 5.07. Prepayment. The Loan may be prepaid in whole or in part by the
Borrower on the dates and in the amounts on which the Bonds are subject to optional redemption
and notice provisions pursuant to Section 3.01 of the Indenture.
21
ARTICLE VI
DEFEASANCE
This Loan Agreement shall continue to be obligatory and binding upon the Borrower in
the performance of the obligations imposed by this Loan Agreement and the repayment of all
sums due by the Borrower under this Loan Agreement shall continue to be secured by this Loan
Agreement as provided herein until all of the indebtedness and all of the payments required to be
made by the Borrower shall be fully paid to the Council or the Trustee. Provided, however, if, at
any time, the Borrower shall have paid, or shall have made provision for payment of, the
principal amount of the Loan, interest thereon and redemption premiums, if any, with respect to
the Bonds and shall have paid all amounts due pursuant to Section 5.03 hereof, then, and in that
event, the covenant regarding the Non-Ad Valorem Revenues and the lien on the revenues
pledged, if any, to the Council for the benefit of the holders of the Bonds shall be no longer in
effect and all future obligations of the Borrower under this Loan Agreement shall cease. For
purposes of the preceding sentence, deposit of cash and/or Governmental Obligations in
irrevocable trust with a banking institution or trust company, for the sole benefit of the Council,
which cash and/or principal of and interest on such Governmental Obligations, will be sufficient
(as reflected in an accountants verification report provided to the Trustee by the Borrower) to
make timely payment of the principal, interest and prepayment premiums, if any, on the
Outstanding Loan, shall be considered "provision for payment." The prepayment premium, if
any, shall be calculated based on the prepayment date selected by the Borrower in accordance
with Section 5.07 hereof.
If the Borrower determines to prepay all or a portion of the Loan pursuant to Section 5.07
hereof, the Council shall redeem a like amount of Bonds which corresponds in terms of amount
and scheduled maturity date to such Loan prepayment pursuant to Section 3.01 of the Indenture.
If the Borrower shall make advance payments to the Council in an amount sufficient to
retire the Loan of the Borrower, including redemption premium and accrued interest to the next
succeeding redemption date of the Bonds, all future obligations of the Borrower under this Loan
Agreement shall cease, including the obligations under Section 5.03 hereof, except as provided
in Section 4.02 hereof. However, prior to making such payments, the Borrower shall give at
least 60 days' irrevocable notice by certified or registered mail to the Council.
22
ARTICLE VII
ASSIGNMENT AND PAYMENT BY THIRD PARTIES
SECTION 7.01. Assignment by Council. The Borrower expressly acknowledges that
this Loan Agreement and the obligations of the Borrower to make payments hereunder (with the
exception of certain of the Council rights to indemnification, fees, notices and expenses), have
been pledged and assigned to the Trustee as security for the Bonds under the Indenture, and that
the Trustee shall be entitled to act hereunder and thereunder in the place and stead of the Council
whether or not the Bonds are in default.
SECTION 7.02. Assignment by Borrower. This Loan Agreement may not be assigned
by the Borrower for any reason without the express prior written consent of the Council, the
Bond Insurer and the Trustee.
SECTION 7.03. Payments by the Bond Insurer. The Borrower acknowledges that
payment under this Loan Agreement from funds received by the Trustee or Bondholders from
the Bond Insurer do not constitute payment under this Loan Agreement for the purposes hereof
or fulfillment of its obligations hereunder.
SECTION 7.04. Payments by the Surety Bond Provider. The Borrower
acknowledges that payment under this Loan Agreement from funds received by the Trustee or
Bondholders from the Surety Bond Provider do not constitute payment under this Loan
Agreement for the purposes hereof or fulfillment of its obligations hereunder.
23
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
SECTION 8.01. Events of Default Defined. The following shall be "Events of
Default" under this Loan Agreement and the terms "Event of Default" and "Default" shall mean
(except where the context clearly indicates otherwise), whenever they are used in this Loan
Agreement, any one or more of the following events:
(a) Failure by the Borrower to timely pay any Loan Repayment, when due, so long as
the Bonds are outstanding;
(b) Failure by the Borrower to timely pay any other payment required to be paid
hereunder on the date on which it is due and payable, provided the Borrower has prior written
notice of any such payments being due;
(c) Failure by the Borrower to observe and perform any covenant, condition or
agreement other than a failure under (a), on its part to be observed or performed under this Loan
Agreement, for a period of thirty (30) days after notice of the failure, unless the Council, the
Bond Insurer and the Trustee shall agree in writing to an extension of such time prior to its
expiration; provided, however, if the failure stated in the notice can be wholly cured within a
period of time not materially detrimental to the rights of the Council, the Bond Insurer or the
Trustee, but cannot be cured within the applicable 30-day period, the Council, the Bond Insurer
and the Trustee will not unreasonably withhold their consent to an extension of such time if
corrective action is instituted by the Borrower within the applicable period and diligently
pursued until the failure is corrected;
(d) Any warranty, representation or other statement by the Borrower or by an officer
or agent of the Borrower contained in this Loan Agreement or in any instrument furnished in
compliance with or in reference to this Loan Agreement, is false or misleading in any material
respect when made;
(e) A petition is filed against the Borrower under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction,
whether now or hereafter in effect, and is not dismissed within 60 days of such filing;
(f) The Borrower files a petition in voluntary bankruptcy or seeking relief under any
provision of any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect, or consents
to the filing of any petition against it under such law;
(g) The Borrower admits insolvency or bankruptcy or its inability to pay its debts as
they become due or is generally not paying its debts as such debts become due, or becomes
insolvent or bankrupt or makes an assignment for the benefit of creditors, or a custodian
(including without limitation a receiver, liquidator or trustee) of the Borrower or any of its
24
property is appointed by court order or takes possession thereof and such order remains in effect
or such possession continues for more than 60 days;
(h) Default under any agreement to which the Borrower is a party evidencing,
securing or otherwise respecting any indebtedness of the Borrower outstanding in the amount of
$100,000 or more if, as a result thereof, such indebtedness may be declared immediately due and
payable or other remedies may be exercised with respect thereto;
(i) Any material provision of this Loan Agreement shall at any time for any reason
cease to be valid and binding on the Borrower, or shall be declared to be null and void, or the
validity or enforceability of this Loan Agreement shall be contested by the Borrower or any
governmental agency or authority, or if the Borrower shall deny any further liability or
obligation under this Loan Agreement; or
0) Final judgment for the payment of money in the amount of$250,000 or more is
rendered against the Borrower and at any time after 90 days from the entry thereof, unless
otherwise provided in the final judgment, (i) such judgment shall not have been discharged, or
(ii) the Borrower shall not have taken and be diligently prosecuting an appeal therefrom or from
the order, decree or process upon which or pursuant to which such judgment shall have been
granted or entered, and have caused the execution of or levy under such judgment, order, decree
or process of the enforcement thereof to have been stayed pending determination of such appeal,
provided that such execution and levy would materially adversely affect the Borrower's ability to
meet its obligations hereunder; or (iii) the Borrower is not obligated with respect to such
judgment pursuant to the provisions of Chapter 768, Florida Statutes.
SECTION 8.02. Notice of Default. The Borrower agrees to give the Trustee, the Bond
Insurer and the Council prompt written notice if any petition, assignment, appointment or
possession referred to in Section 8.01(e), 8.01(f) and 8.01(g) is filed by or against the Borrower
or of the occurrence of any other event or condition which constitutes a Default or an Event of
Default, or with the passage of time or the giving of notice would constitute an Event of Default,
immediately upon becoming aware of the existence thereof.
SECTION 8.03. Remedies on Default. Whenever any Event of Default referred to in
Section 8.01 hereof shall have happened and be continuing, the Council or the Trustee shall, with
the written consent of the Bond Insurer or upon the direction of the Bond Insurer, in addition to
any other remedies herein or by law provided, have the right, at its or their option without any
further demand or notice, to take such steps and exercise such remedies as provided in Section
9.02 of the Indenture, and, without limitation, one or more of the following:
(a) Declare all Loan Repayments, in an amount equal to 100% of the principal
amount thereof plus all accrued interest thereon to the date on which such Loan Repayments
shall be used to redeem Bonds pursuant to Section 3.02 of the Indenture and all other amounts
due hereunder, to be immediately due and payable, and upon notice to the Borrower the same
shall become immediately due and payable by the Borrower without further notice or demand.
25
(b) Take whatever other action at law or in equity which may appear necessary or
desirable to collect amounts then due and thereafter to become due hereunder or to enforce any
other of its or their rights hereunder.
SECTION 8.04. [Reserved].
SECTION 8.05. No Remedy Exclusive; Waiver, Notice. No remedy herein conferred
upon or reserved to the Council or the Trustee is intended to be exclusive and every such remedy
shall be cumulative and shall be in addition to every other remedy given under this Loan
Agreement or now or hereafter existing at law or in equity. No delay or omission to exercise any
right, remedy or power shall be construed to be a waiver thereof, but any such right, remedy or
power may be exercised from time to time and as often as may be deemed expedient. In order to
entitle the Council or the Trustee to exercise any remedy reserved to it in this Article VIII, it
shall not be necessary to give any notice other than such notice as may be required in this Article
VIII.
SECTION 8.06. Application of Moneys. Any moneys collected by the Council or the
Trustee pursuant to Section 8.03 hereof shall be applied (a) first, to pay any attorney's fees or
other expenses owed by the.Borrower pursuant to Section 5.03(b)(3) and (4) hereof, (b) second,
to pay interest due on the Loan, (c) third, to pay principal due on the Loan, (d) fourth, to pay any
other amounts due hereunder, and (e) fifth, to pay interest and principal on the Loan and other
amounts payable hereunder but which are not due, as they become due (in the same order, as to
amounts which come due simultaneously, as in (a) through (d) in this Section 8.06).
26
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, certificates or other communication hereunder
shall be sufficiently given and shall be deemed given when hand delivered or mailed by
registered or certified mail, postage prepaid, to the parties at the following addresses:
Council: Florida Municipal Loan Council
c/o Florida League of Cities
301 South Bronough Street
Tallahassee, Florida 32301
Bond Insurer: MBIA Insurance Corporation
113 King Street
Armonk, New York 10504
Trustee: Wachovia Bank, National Association
Corporate Trust Department
225 Water Street, 3`d Floor
Jacksonville, Florida 32202
For purposes other than presentation of Bonds for transfer, exchange or payment:
Wachovia Bank,National Association
Corporate Trust Department
225 Water Street, 3`d Floor
Jacksonville, Florida 32202
Borrower: City of Dania Beach, Florida
100 W. Dania Beach Boulevard
Dania Beach, Florida 33004
Attention: Director of Finance
Any of the above parties may, by notice in writing given to the others, designate any
further or different addresses to which subsequent notices, certificates or other communications
shall be sent.
SECTION 9.02. Binding Effect. This Loan Agreement shall inure to the benefit of and
shall be binding upon the Council and the Borrower and their respective successors and assigns.
SECTION 9.03. Severability. In the event any provision of the Loan Agreement shall
be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision hereof.
27
SECTION 9.04. Amendments, Changes and Modifications. This Loan Agreement
may be amended by the Council and the Borrower as provided in the Indenture; provided,
however, that no such amendment shall be effective unless it shall have been consented to in
writing by the Bond Insurer.
SECTION 9.05. Execution in Counterparts. This Loan Agreement may be
simultaneously executed in several counterparts, each of which, when so executed and delivered,
shall be an original and all of which shall constitute but one and the same instrument.
SECTION 9.06. Applicable Law. This Loan Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
SECTION 9.07. Benefit of Bondholders; Compliance with Indenture. This Loan
Agreement is executed in part to induce the purchase by others of the Bonds. Accordingly, all
covenants, agreements and representations on the part of the Borrower and the Council, as set
forth in this Loan Agreement, are hereby declared to be for the benefit of the holders from time
to time of the Bonds. The Borrower covenants and agrees to do all things within its power in
order to comply with and to enable the Council to comply with all requirements and to fulfill and
to enable the Council to fulfill all covenants of the Indenture. The Borrower also acknowledges
that the Council has delegated certain of its duties under the Indenture to its Program
Administrator, including the direction to make investments in accordance with Article VII
thereof, including but not limited to the investment of the Borrower's Project Loan Fund.
SECTION 9.08. Consents and Approvals. Whenever the written consent or approval
of the Council shall be required under the provisions of this Loan Agreement, such consent or
approval may be given by an Authorized Representative of the Council or such other additional
persons provided by law or by rules, regulations or resolutions of the Council.
SECTION 9.09. Immunity of Officers, Employees and Members of Council and
Borrower. No recourse shall be had for the payment of the principal of or premium or interest
hereunder or for any claim based thereon or upon any representation, obligation, covenant or
agreement in this Loan Agreement against any past, present or future official officer, member,
counsel, employee, director or agent, as such, of the Council or the Borrower, either directly or
through the Council or the Borrower, or respectively, any successor public or private corporation
thereto under any rule of law or equity, statute or constitution or by the enforcement of any
assessment or penalty or otherwise, and all such liability of any such officers, members,
counsels, employees, directors or agents as such is hereby expressly waived and released as a
condition of and consideration for the execution of this Loan Agreement.
SECTION 9.10. Captions. The captions or headings in this Loan Agreement are for
convenience only and in no way define, limit or describe the scope or intent of any provisions of
sections of this Loan Agreement.
SECTION 9.11. No Pecuniary Liability of Council. No provision, covenant or
agreement contained in this Loan Agreement, or any obligation herein imposed upon the
Council, or the breach thereof, shall constitute an indebtedness or liability of the State or any
28
political subdivision or municipal corporation of the State or any public corporation or
governmental agency existing under the laws thereof other than the Council. In making the
agreements, provisions and covenants set forth in this Loan Agreement, the Council has not
obligated itself except with respect to the application of the revenues, income and all other
property as derived herefrom, as hereinabove provided.
SECTION 9.12. Payments Due on Holidays. With the exception of Basic Payments, if
the date for making any payment or the last date for performance of any act or the exercise of
any right, as provided in this Loan Agreement, shall be other than on a Business Day, such
payments may be made or act performed or right exercised on the next succeeding Business Day
with the same force and effect as if done on the nominal date provided in this Loan Agreement.
SECTION 9.13. Calculations. Interest shall be computed on the basis of a 360-day
year of twelve 30-day months.
SECTION 9.14. Time of Payment. Any Loan Repayment or other payment hereunder
which is received by the Trustee or Council after 2:00 p.m. (New York time) on any day shall be
deemed received on the following Business Day.
[Remainder of page intentionally left blank]
•
29
IN WITNESS WHEREOF, the Florida Municipal Loan Council has caused this Loan
Agreement to be executed in its corporate name with its corporate seal hereunto affixed and
attested by its duly authorized officers and the City of Dania Beach, Florida, has caused this
Loan Agreement to be executed in its corporate name with its corporate seal hereunto affixed
and attached by its duly authorized officers. All of the above occurred as of the date first above
written.
FLORIDA MUNICIPAL LOAN COUNCIL
(SEAL)
By:
Name: Raul Martinez
Title: Chairman
ATTEST:
By:
Name: Michael Sittig
Title: Executive Director
\4118\14\agrmnt\00020176.DOC
•
S-1
LOAN AGREEMENT
•
CITY OF DANIA BEACH, FLORIDA
(SEAL)
By:
Name: Anne Castro
Title: Mayor
ATTESTED BY:
By:
Name: Louise Stilson
Title: City Clerk
Approved as to form and correctness
this day of , 2005.
By:
Name: Tom Ansbro
Title: City Attorney
S-2
EXHIBIT A
•
USE OF LOAN PROCEEDS
DESCRIPTION OF PROJECT TO BE ACQUIRED OR CONSTRUCTED
TOTAL AMOUNT
PROJECT TO BE FINANCED
[1. Construction and Equipping of Downtown Library
with Parking Structure]
2. Construction and Equipping of a Fire Station with a
Broward Sheriffs Operations Sub Station
3. Recreation Centers and Parks Expansion and Improvements
•
Exhibit A-1
EXHIBIT B
•
CERTIFIED RESOLUTION OF THE BORROWER
See Document No.
•
Exhibit B-1
EXHIBIT C
OPINION OF BORROWER'S COUNSEL
[Letterhead of Counsel to Borrower]
, 2005
Florida Municipal Loan Council Wachovia Bank, National Association
c/o Florida League of Cities, Inc. Corporate Trust Department
301 Bronough Street 225 Water Street, P Floor
Tallahassee, Florida 32301 Jacksonville, Florida 32202
Bryant Miller & Olive P.A. Banc of America Securities LLC
One Tampa City Center 1640 Gulf-to-Bay Boulevard
201 North Franklin Street, Suite 2700 Clearwater, Florida 33755
Tampa, Florida 33602
MBIA Insurance Corporation
113 King Street
Armonk, New York 10504
Gentlemen:
I am the City Attorney of the (the "Borrower"), and have been requested
by the Borrower to give this opinion in connection with the loan by the Florida Municipal Loan
Council (the "Council") to the Borrower of funds to finance or refinance or reimburse the
Borrower for all or a portion of the cost of a certain Project (the "Project") as defined in, and as
described in Exhibit A of, the Loan Agreement, dated as of 1, 2005 (the "Loan
Agreement"), between the Council and the Borrower.
In this connection, I have reviewed such records, certificates and other documents as I
have considered necessary or appropriate for the purposes of this opinion, including applicable
laws, and ordinances adopted by the City Commission of the Borrower, the Loan Agreement, a
Trust Indenture dated as of 1, 2005 (the "Indenture") between the Council and Wachovia
Bank, National Association, as trustee (the "Trustee"), Resolution No. enacted by the
Borrower on (the `'Resolution"), a Continuing Disclosure Agreement dated as of
1, 2005 (the "Continuing Disclosure Agreement") between the Borrower and the
Florida League of Cities, Inc. and a Bond Purchase Contract dated , 2005 (the "Bond
Purchase Contract") between the Council, Banc of America Securities LLC and the Borrowers.
Based on such review, and such other considerations of law and fact as I believe to be relevant, I
am of the opinion that:
Exhibit C-1
(a) The Borrower is a municipality duly organized and validly existing under the
iConstitution and laws of the State of Florida and under the provisions of the Constitution and
laws of the State of Florida. The Borrower has the legal right and all requisite power and
authority to enter into the Loan Agreement, to enact/adopt the Resolution and to consummate the
transactions contemplated thereby and otherwise to carry on its activities and own its property.
(b) The Borrower has duly adopted/enacted the Resolution, has authorized, executed
and delivered the Loan Agreement, the Bond Purchase Contract and the Continuing Disclosure
Agreement, and such instruments are legal and binding obligations of the Borrower enforceable
against the Borrower in accordance with its terms, except to the extent that the enforceability
thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights heretofore or hereafter enacted and that their enforcement may be
subject to the exercise of judicial discretion in accordance with general principles of equity, and
to the sovereign police powers of the State of Florida and the constitutional powers of the United
States of America.
(c) The adoption/enactment of the Resolution, execution and delivery of the
Continuing Disclosure Agreement, the Bond Purchase Contract and the Loan Agreement, the
consummation of the transactions contemplated thereby, the purchase or construction of the
Project or the reimbursement for costs of the acquisition or construction thereof and the
fulfillment of or compliance with the terms and conditions of the Loan Agreement, the Bond
Purchase Contract and the Continuing Disclosure Agreement does not and will not conflict with
or result in a material breach of or default under any of the terms, conditions or provisions of any
agreement, contract or other instrument, or law, resolution, regulation, or judicial or other
governmental order, to which the Borrower is now a party or it or its properties is otherwise
subject or bound, and the Borrower is not otherwise in violation of any of the foregoing in a
manner material to the transactions contemplated by the Loan Agreement.
(d) There is no litigation or legal or governmental action, proceeding, inquiry or
investigation pending or, to the best of my knowledge, threatened by governmental authorities or
to which the Borrower is a party or of which any property of the Borrower is subject, which has
not been disclosed in writing to the Council and the Bond Insurer and which, if determined
adversely to the Borrower, would individually or in the aggregate materially and adversely affect
the validity or the enforceability of the Loan Agreement, the Bond Purchase Contract or the
Continuing Disclosure Agreement.
I am admitted to practice law only in the State of Florida and express no opinion as to the
laws of any other state and further express no opinion as to the status of interest on the Bonds
under either Federal laws or the laws of the State of Florida.
Very truly yours,
Exhibit C-2
EXHIBIT D
DEBT SERVICE SCHEDULE
Principal Total Debt
Date Amounts Interest Service
•
*Loan repayments are actually due 20'h and 20'h of each year.
Exhibit D-1
EXHIBIT E TO LOAN AGREEMENT
FORM OF REQUISITION CERTIFICATE
TO: WACHOVIA BANK, NATIONAL ASSOCIATION, AS TRUSTEE
FROM: (THE "BORROWER")
SUBJECT: LOAN AGREEMENT DATED AS OF THE 1 IT DAY OF , 2005
This represents Requisition Certificate No. in the total amount of$ for
payment of those Costs of the Project detailed in the schedule attached.
The undersigned does certify that:
1. All of the expenditures for which monies are requested hereby represent proper
Costs of the Project, have not been included in a previous Requisition Certificate and have been
properly recorded on the Borrower's books as currently due and owing.
2. The monies requested thereby are not greater than those necessary to meet
obligations due and payable or to reimburse the Borrower for funds actually advanced for Costs
of the Project. The monies requested do not include retention or other monies not yet due or
• earned under construction contracts.
3. This requisition is in compliance with Section 5.03 of the Indenture.
4. After payment of monies hereby requested, to the knowledge of the undersigned,
there will remain available to the Borrower sufficient funds to complete the Project substantially
in accordance with the plans.
5. The Borrower is not in default under the Loan Agreement and nothing has
occurred that would prevent the performance of its obligations under the Loan Agreement.
Executed this day of ,
[BORROWER]
By:
Name:
Title:
•
Exhibit E-1
EXHIBIT C
• FORM OF CONTINUING DISCLOSURE AGREEMENT
7 RESOLUTION #2005-098
• CONTINUING DISCLOSURE AGREEMENT FOR BORROWERS
This CONTINUING DISCLOSURE AGREEMENT dated as of 1,2005(the
"Continuing Disclosure Agreement") is executed and delivered by ,a Florida
(Borrower"),and by Florida League of Cities,Inc.,a Florida corporation not-
for-profit, as Dissemination Agent(the 'Dissemination Agent") hereunder. Additional capitalized
terms used herein shall have the meanings ascribed thereto in Section 2 hereof.
SECTION 1. Nature of Undertaking. This Continuing Disclosure Agreement
constitutes an undertaking by the Borrower under paragraph(b)(5)of the Rule to provide Financial
Information and notice of the occurrence of certain events with respect to the Bonds, as provided in
paragraph(b)(5)(i)(C)of the Rule,and otherwise to assist the Participating Underwriter in complying
with paragraph(b)(5)of the Rule with respect to the Offering of the Bonds.Among other things,the
Borrower is hereby undertaking(i)to disseminate an Annual Report not later than 270 days after the
end of each Fiscal Year of the Borrower in accordance with Section 4 hereof, which contains
Financial Information with respect to the Borrower, (ii) if an Annual Report does not contain the
Audited Financial Statements,to disseminate the Audited Financial Statements in accordance with
Section 4 hereof as soon as practicable after they shall have been approved by the Governing Body,
(iii)to provide notice in a timely manner,in accordance with Section 6 hereof,of the occurrence of
any of the Listed Events related to the Borrower and (iv) to provide notice in a timely manner, in
accordance with Section 4(e)hereof, of any failure to disseminate an Annual Report in accordance
with the preceding clause (1) of this sentence.
SECTION 2. Definitions. In addition to the definitions set forth above and in the herein-
defined Indenture,which shall apply to any capitalized terms used herein,the following capitalized
terms shall have the following meanings, unless otherwise defined therein:
"Annual Report"means a document or set of documents which(a)identifies the Borrower;
(b)contains(or includes by reference to documents which were provided to each Repository or filed
with the SEC or, if by reference to the Final Official Statement, filed with the MSRB prior to the
date that the Annual Report containing such reference is provided to the Dissemination Agent in
accordance with Section 4 hereof): (1)Financial Information and Operating Data for the Borrower;
(ii)Audited Financial Statements if such Audited Financial Statements shall have been approved by
the Governing Body at the time the Annual Report is required to be provided to the Dissemination
Agent in accordance with Section 4 hereof, and(iii)Unaudited Financial Statements if the Audited
Financial Statements shall not have been approved by the Governing Body at the time the Annual
Report is required to be provided to the Dissemination Agent in accordance with Section 4 hereof,
(c)in the event that the Borrower delivers a Continuing Disclosure Certificate to the Dissemination
Agent pursuant to Section 5(b)hereof, contains (in the case of the Annual Report disseminated on
or immediately after the date such Continuing Disclosure Certificate is so delivered) a narrative
explanation of the reasons for the changes in Financial Information and/or Operating Data set forth
in such Continuing Disclosure Certificate and the effect of the changes on the types of Financial
Information and/or Operating Data being provided in such Annual Report; and(d) in the event that
the Borrower authorizes a change in the accounting principles by which its Audited Financial
Statements are prepared,contains(in the case of the Annual Report disseminated on or immediately
after the date of such change) (1)a comparison between the Financial Information prepared on the
basis of the new accounting principles which is contained in such Annual Report and the Financial
. Information prepared on the basis of the fonner accounting principles which was contained in the
previous Annual Report disseminated immediately prior to such Annual Report and(2)a discussion
of the differences between such accounting principles and the effect of such change on the
presentation of the Financial Information being provided in such Annual Report.
"Annual Report Certificate" means an Annual Report Certificate in the form attached
hereto as Exhibit A.
"Annual Report Date" means the date which is 270 days after the end of a Fiscal Year.
"Audited Financial Statements" means the financial statements of the Borrower which
have been examined by independent certified public accountants in accordance with generally
accepted auditing standards.
"Bondholder" means (i)the registered owner of a Bond and (ii) the beneficial owner of a
Bond, as the term "beneficial owner"is used in any agreement with a securities depository for the
Bonds and as the tenn may be modified by an interpretation by the SEC of paragraph (b)(5) of the
Rule.
"Bonds" means the$ Florida Municipal Loan Council Revenue Bonds,
Series 2005D.
"Continuing Disclosure Agreement"means this Continuing Disclosure Agreement,as the
same may be supplemented and amended pursuant to Section 8 hereof.
"Continuing Disclosure Certificate"means a Continuing Disclosure Certificate in the form
attached hereto as Exhibit B delivered by the Borrower to the Dissemination Agent pursuant to
Section 5 hereof.
"Dissemination Agent" means Florida League of Cities, Inc., acting in its capacity as
Dissemination Agent hereunder,or any successor Dissemination Agent which is appointed pursuant
to Section 3 hereof or to which the responsibilities of Dissemination Agent under this Continuing
Disclosure Agreement shall have been assigned in accordance with Section 9 hereof.
"Event Notice" means notice of the occurrence of a Listed Event.
"Final Official Statement" means the Final Official Statement prepared in connection
with the Offering of the Bonds.
"Financial Information" means financial infonnation related to the Borrower of the types
identified in the Continuing Disclosure Certificate most recently delivered by the Borrower to the
Dissemination Agent in accordance with Section 5 hereof. The Financial Information (i) shall be
prepared for the Fiscal Year immediately preceding the date of the Annual Report containing such
Financial Information, and (ii) shall be prepared on the basis of the Audited Financial Statements
to be provided to the Dissemination Agent concurrently with the Annual Report, provided that, if
the Audited Financial Statements are to be provided to the Dissemination Agent subsequent to the
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date that the Annual Report is provided to the Dissemination Agent,such Financial Informationmay
be prepared on the basis of the Unaudited Financial Statements.
"Governing Body"shall mean the governing bodyof the Borrower which shall approve the
Audited Financial Statements.
"Indenture"means the Trust Indenture dated of even date herewith by and between Florida
Municipal Loan Council, as Issuer, and Wachovia Bank, National Association, as Trustee.
"Insurer" means MBIA Insurance Corporation.
"Issuer" means Florida Municipal Loan Council.
"Loan Agreement" means the Loan Agreement dated of even date herewith, between the
Issuer and the Borrower.
"Listed Events" means any of the events which are set forth in Section 6 hereof.
"NISRB" means the Municipal Securities Rulemaking Board.
"NRMSIR" means, as of the date of determination,any Nationally Recognized Municipal
Securities Information Repository for purposes of paragraph (b)(5) of the Rule.
"Offering" means the primary offering of the Bonds for sale by the Participating
Underwriter.
"Operating Data"means operating data of the types identified in the Continuing Disclosure
Certificate most recently delivered by the Borrower to the Dissemination Agent in accordance with
Section 5 hereof. The Operating Data shall be prepared for the Fiscal Year immediately preceding
the date of the Annual Report containing such Operating Data.
"Participating Underwriter" means Banc of America Securities LLC.
"Rating Agencies"means Fitch, Inc. and Standard &Poor's Ratings Services.
"Repository" or"Repositories"means the NRMSIRs and the SIDs,either individuallyor
collectively, as the context requires.
"Rule"means Rule 15c2-12 adopted bythe SEC under the Securities Exchange Act of 1934,
as amended, as the Rule may be amended from time to time, or any successor provision thereto.
"SEC" means the Securities and Exchange Commission.
"SID" means, as of the date of determination, any public or private repositories or entities
which are designated by the State of Florida as state information depositories for purposes of
paragraph (b)(5) of the Rule and recognized as such by the SEC.
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. "Trustee" means Wachovia Bank, National Association, as trustee under the Indenture.
"Unaudited Financial Statements"means unaudited financial statements of the Borrower
for any Fiscal Year which have been prepared on a basis substantially consistent with the Audited
Financial Statements to be subsequently prepared for such Fiscal Year. The Unaudited Financial
Statements for any Fiscal Year shall be prepared on a comparative basis with the Audited Financial
Statements prepared for the preceding Fiscal Year.
SECTION 3. Appointment of Dissemination Agent: Obligations of Borrower
Respecting Undertaking. (a) The Borrower hereby appoints Florida League of Cities, Inc. to act
as the initial Dissemination Agent hereunder. Florida League of Cities, Inc. hereby accepts such
appointment. The Borrower may, from time to time, appoint a successor Dissemination Agent or
discharge any then acting Dissemination Agent,with or without cause. If at any time there shall be
no Dissemination Agent appointed and acting hereunder or the then appointed and acting
Dissemination Agent shall fail to perform its obligations hereunder, the Borrower shall discharge
such obligations until such time as the Borrower shall appoint a successor Dissemination Agent or
the then appointed and acting Dissemination Agent shall resume the performance of such
obligations.
(b) The Borrower hereby acknowledges that the Borrower is obligated to
comply with this Continuing Disclosure Agreement and that the appointment of the Dissemination
Agent as agent of the Borrower for the purposes herein provided does not relieve the Borrower of
its obligations with respect to this Continuing Disclosure Agreement.
SECTION 4. Annual Financial Information. (a) The Financial Information shall be
contained in the Annual Reports and,if provided separately in accordance with Section 5(b)hereof,
the Audited Financial Statements which the Borrower is required to deliver to the Dissemination
Agent for dissemination in accordance with this Section 4.
(b) The Dissemination Agent shall notify the Borrower of each Annual Report
Date and of the Borrower's obligation hereunder not more than 60 and not less than 30 days prior to
each Annual Report Date. The Borrower shall provide an Annual Report to the Dissemination
Agent,together with an Annual Report Certificate,not later than each Annual Report Date,provided
that, if the Annual Report does not include the Audited Financial Statements, the Borrower shall
provide the Audited Financial Statements to the Dissemination Agent as soon as practicable after
they shall have been approved by the Governing Body.
(c) The Dissemination Agent shall provide the Annual Report and, if received
separately in accordance with Section 4(b) hereof, the Annual Financial Statements, to each
Repository, the Trustee, the Issuer, the Rating Agencies and the Insurer within five (5) Business
Days after receipt thereof from the Borrower.
(d) The Dissemination Agent shall provide the Issuer, the Borrower and the
Trustee written confirmation that the Annual Report and, if received separately in accordance with
Section 4(b) hereof, the Annual Financial Statements, were provided to each Repository in
accordance with Section 4(c) hereof.
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• (e) If the Dissemination Agent shall not have filed the Annual Report by the
Annual Report Date, the Dissemination Agent shall so notify the Borrower, the Repositories,the
Trustee and the Insurer within five (5) Business Days of the Annual Report Date.
SECTION 5. Continuing Disclosure Certificates. (a) The Borrower shall prepare a
Continuing Disclosure Certificate in the form attached hereto as Exhibit B in connection with the
Offering of the Bonds and shall deliver the same to the Dissemination Agent for dissemination to
the Participating Underwriter, Issuer and Trustee.
(b) Prior to the deletion or substitution of any Financial Information and
Operating Data from the information listed in Exhibit B hereto the Borrower will obtain an opinion
of nationally recognized disclosure counsel (which may also act as outside counsel to of the
Borrower)addressed to the Issuer,the Participating Underwriter,the Trustee and the Dissemination
Agent to the effect that the Financial and Operating Data to be provided will comply with the Rule,
as in effect on the date of the Offering of the Bonds and taking into account any amendment or
interpretation of the Rule by the SEC or any adjudication of the Rule by a final decision of a court
of competent jurisdiction which may have occurred subsequent to the execution and delivery of this
Continuing Disclosure Agreement. The Dissemination Agent is entitled to rely on such opinion
without further investigation.
(c) Notwithstanding Section 5(b)hereof, the Borrower shall not be required to
comply with Section 5(b) hereof if such Section shall no longer be deemed to be required in order
for this Continuing Disclosure Agreement to comply with the Rule as a result of the adoption,
rendering or delivery of (i) an amendment or interpretation of the Rule by the SEC, (ii) an
adjudication of the Rule by a final decision of a court of competent jurisdiction or(ill) an opinion
of nationally recognized disclosure counsel(which may also act as outside counsel to the Borrower),
in each case, to that effect.
(d) Any delivery of a Continuing Disclosure Certificate pursuant to Section 5(b)
hereof shall not be deemed to be an amendment to this Continuing Disclosure Agreement and shall
not be subject to the provisions of Section 8 hereof.
SECTION 6. Reporting of Listed Events. (a)This Section 6 governs the provision of
Event Notices relating to Listed Events with respect to the Bonds. The following events are "Listed
Events":
(i) principal and interest payment deficiencies;
(ii) non-payment related defaults;
(iii) unscheduled draws on debt service reserves reflecting financial
difficulties;
(iv) unscheduled draws on credit enhancements reflecting financial
difficulties;
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(v) substitution of credit or liquidity providers or their failure to perform;
(vi) adverse tax opinions or events affecting the tax-exempt status of the
Bonds;
(vii) modifications to the rights of the holders of the Bonds;
(viii) optional,contingent or unscheduled redemption calls;
(ix) defeasances;
(x) release, satisfaction or sale of property securing repayment of the
Bonds; and
(xi) rating changes;
provided that each of the Listed Events shall be interpreted in accordance with any interpretation of
the Rule by the SEC or adjudication of the Rule by a final decision of a court of competent
jurisdiction which may occur subsequent to the date of the original execution and delivery hereof.
(b) Whenever the Borrower obtains actual knowledge of the occurrence of any
of the Listed Events with respect to or caused by the Borrower,the Borrower shall,on a timely basis
and in any event within ten(10)Business Days, determine whether the occurrence of such event is
material to any of the Bondholders.
(c) If the Borrower determines that the occurrence of any of the Listed Events is
material to any of the Bondholders,the Borrower shall promptly notify the Dissemination Agent of
such detennination in writing and instruct the Dissemination Agent to provide Event Notice in
accordance with Section 6(e)hereof.
(d) If the Borrower determines that the occurrence of the Listed Event described
in such notice is not material, the Borrower shall notify the Dissemination Agent of such
detennination, and no Event Notice shall be provided pursuant to Section 6(e) hereof. The
detennination of the Borrower under this paragraph(d)shall be conclusive and binding on all parties
hereto.
(e) If the Borrower instructs the Dissemination Agent to provide an Event Notice
pursuant to Section 6(c) hereof, the Dissemination Agent shall, within three (3) Business Days
thereafter, file an Event Notice with each Repository, the Trustee, the Rating Agencies, the Issuer
and the Insurer. The Dissemination Agent shall provide the Borrower, the Issuer and the Trustee
written confirmation that such Event Notice was provided to each Repository in accordance with this
Section 6(e).
(f) Notwithstanding the foregoing,an Event Notice with respect to a Listed Event
described in Section 6(a)(viii) or (ix) shall not be given under this Section 6 any earlier than the
notice (if any) of such event is given to the affected Bondholders pursuant to the Indenture, as
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confirmed to the Dissemination Agent by the Trustee. The Dissemination Agent shall have no
liability for failure of notice given to Bondholders if it does not receive the necessary confirmation
from the Trustee after written request.
(g) Notwithstanding the foregoing, whenever the Borrower authorizes a change
in either its Fiscal Year or the accounting principles by which its Audited Financial Statements are
prepared, the Borrower shall provide the Dissemination Agent with written notice of such change
and instruct the Dissemination Agent to file a copy of such notice with each Repository,the Issuer,
the Insurer, the Rating Agencies and the Trustee, and the Dissemination Agent shall, within three
(3)Business Days thereafter,file a copy of such notice with each Repository,the Issuer,the Insurer,
the Rating Agencies and the Trustee. The Dissemination Agent shall provide the Borrower written
confirmation that such notice was provided to each Repository in accordance with this Section 6(g).
SECTION 7. Additional Information.Nothing in this Continuing Disclosure Agreement
shall be deemed to prevent (1) the Borrower from disseminating any information or notice of the
occurrence of any event using the means of dissemination specified in this Continuing Disclosure
Agreement or other means or(ii)the Borrower from including in an Annual Report any information
which shall be in addition to the Financial Infonmation, Operating Data and Audited or Unaudited
Financial Statements required by Section 4 hereof to be included in such Annual Report,provided
that this Continuing Disclosure Agreement shall not be deemed to require the Borrower to include
or update any such additional information in any subsequently prepared Annual Report.
SECTION,8. Amendments: Waivers. This Continuing Disclosure Agreement may be
amended,and any provision hereof may be waived,by the parties hereto if,prior to the effective date
of any such amendment or waiver,the Borrower delivers to the Dissemination Agent,the Issuer and
the Trustee an opinion of nationally recognized disclosure counsel (which may also act as outside
counsel to one or more members of the Borrower), to the effect that this Continuing Disclosure
Agreement(taking into account such amendment or waiver)complies with the Rule,as in effect on
the date of the Offering of Bonds or after the execution and delivery of this Continuing Disclosure
Agreement, taking into account any amendment or interpretation of the Rule by the SEC or any
adjudication of the Rule by a final decision of a court of competent jurisdiction which may have
occurred subsequent to the execution and delivery of this Continuing Disclosure Agreement. The
Dissemination Agent shall notify the Repositories of any such amendment and shall provide the
Repositories with a copy of any such amendment.
SECTION 9. Assignment. The Borrower may not assign its obligations under this
Continuing Disclosure Agreement. The Dissemination Agent may assign its rights and
responsibilities hereunder to a third party with the consent of the Borrower which shall not be
unreasonably withheld.
SECTION 10. Compensation of the Dissemination Agent. As compensation to the
Dissemination Agent for its services pursuant to this Continuing Disclosure Agreement, the
Borrower agrees to pay all fees and all expenses of the Dissemination Agent including, without
limitation,all reasonable expenses,charges,costs and other disbursements in the administration and
performance of its duties hereunder,and shall to the extent pennitted by law indemnify and save the
Dissemination Agent and its officers,directors,attorneys,agents and employees harmless from and
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• against any costs,expenses,damages or other liabilities(including attorneys fees)which it(or they)
may incur in the exercise of its(or their)powers and duties hereunder,except with respect to its(or
their)willful misconduct or gross negligence. Nothing contained herein is intended to be nor shall
it be construed as a waiver of any immunity from or limitation of liability that the Borrower may be
entitled to pursuant to the Doctrine of Sovereign Immunity or Section 768.28, Florida Statutes.
Notwithstanding anything to the contrary contained herein, the obligations of the Borrower
hereunder shall be limited obligations payable solely from the sources provided under Section
2.02(a)of the Loan Agreement.
SECTION 11. Concerning the Dissemination Agent and the Borrower. (a)The
Dissemination Agent is not answerable for the exercise of any discretion or power under this
Continuing Disclosure Agreement or for anything whatever in connection herewith, except only its
own willful misconduct or gross negligence.The Dissemination Agent shall have no liability to the
Bondholders or any other person with respect to the undertakings described in Section 1 hereof,
except as expressly set forth in this Continuing Disclosure Agreement regarding its own willful
misconduct or gross negligence.
(b) The Dissemination Agent has no responsibility or liability hereunder for
determining compliance for any information submitted hereunder with any law, rule or regulation
or the terms of this agreement. The Dissemination Agent shall have no responsibility for
disseminating information not delivered to it or giving notice of non-delivery except as specifically
required hereunder; and
(c) The parties to this Continuing Disclosure Agreement acknowledge and agree
that the Borrower assumes no obligations hereunder other than those specifically assumed by the
Borrower herein.
SECTION 12. Termination of this Continuing_Disclosure Agreement.This Continuing
Disclosure Agreement shall terminate at such time as the Loan Agreement tenninates.
SECTION 13. Beneficiaries. This Continuing Disclosure Agreement shall inure solely
to the benefit of the Borrower,.the Dissemination Agent, the Trustee, the Issuer, the Insurer, the
Participating Underwriter and the Bondholders. This Continuing Disclosure Agreement shall not
be deemed to inure to the benefit of or grant any rights to any party other than the parties specified
in the preceding sentence.
SECTION 14. Counterparts. This Continuing Disclosure Agreement may be executed
in several counterparts, each of which shall be an original and all of which shall constitute one and
the same instrument.
SECTION 15. Governing Law. This Continuing Disclosure Agreement shall be governed
by the laws of the State of Florida.
IN WITNESS WHEREOF, the Borrower and the Dissemination Agent have caused this
Continuing Disclosure Agreement to executed and delivered as of the date first written above.
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• , as Borrower
By:
Its:
FLORIDA LEAGUE OF CITIES, INC.,
as Dissemination Agent
By:
Its:
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• EXHIBIT A
Form of Annual Report Certificate
The undersigned duly appointed and acting of ,
a Florida , as Borrower under the Continuing Disclosure Agreement
(hereinafter described)(the"Borrower"),hereby certifies on behalf of the Borrower pursuant to the
Continuing Disclosure Agreement dated as of 1, 2005 (the "Continuing Disclosure
Agreement")executed and delivered by the Borrower and accepted by Florida League of Cities,Inc.,
as Dissemination Agent(the"Dissemination Agent"), as follows:
1. Definitions. Capitalized terms used but not defined herein shall have the meanings
ascribed thereto in the Continuing Disclosure Agreement.
2. Annual Report. Accompanying this Annual Report Certificate is the Annual Report
for the Fiscal Year ended
3. Compliance with Continuing Disclosure Agreement. The Annual Report is being
delivered to the Dissemination Agent herewith not later than 270 days after the end of the Fiscal
Year to which the Annual Report relates. The Annual Report contains, or includes by reference,
Financial Information and Operating Data of the types identified in the Continuing Disclosure
Certificate most recently delivered to the Dissemination Agent pursuant to Section 5 of the
Continuing Disclosure Agreement.To the extent any such Financial Information or Operating Data
• is included in the Annual Report by reference, any document so referred to has been previously
provided to the Repositories or filed with the SEC or, in the case of a reference to a Final Official
Statement, has been filed with the MSRB.
Such Financial Information and Operating Data have been prepared on the basis of the
[Audited/Unaudited]Financial Statements. [Such Audited Financial Statements are included as part
of the Annual Report.] [Because the Audited Financial Statements have not been approved by the
Governing Body as of the date hereof, the Unaudited Financial Statements have been included as
part of the Annual Report. The Unaudited Financial Statements have been prepared on a basis
substantially consistent with such Audited Financial Statements. The Borrower shall deliver such
Audited Financial Statements to the Dissemination Agent as soon as practicable after theyhave been
approved by the Governing Body.]
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EXHIBIT D
FORM OF BOND PURCHASE CONTRACT
8 RESOLUTION 42005-098
. BOND PURCHASE CONTRACT
, 2005
RE: $ Florida Municipal Loan Council
Revenue Bonds, Series 2005D
Florida Municipal Loan Council
c/o Florida League of Cities, Inc.
Tallahassee, Florida
The Herein Defined Borrowers
Ladies and Gentlemen:
The undersigned, Banc of America Securities LLC (the "Underwriter"), hereby offers to
purchase all of the Bonds (as hereinafter defined) from the Florida Municipal Loan Council, a
separate legal entity of the State of Florida(the "Issuer"), subject to the acceptance of this offer by
the Issuer and the (collectively,the"Borrowers")
on or before 5:00 P.M. (Tallahassee, Florida time), on the date hereof, which offer, upon mutual
• acceptance by the Issuer and the Borrowers, will be binding upon all the parties hereto.
SECTION 1. Definitions: The following terms shall have the following meanings in this
Agreement unless another meaning is plainly intended,and capitalized terms not otherwise defined
herein have the meanings ascribed to them in the Bond Indenture or the Loan Agreements, as may
be applicable:
"Agreement" means this Bond Purchase Contract among the Underwriter, the Issuer and
the Borrowers.
"Bond Counsel" means Bryant Miller& Olive P.A., Tampa, Florida.
"Bond Indenture" means the Trust Indenture dated as of 1, 2005, between the
Issuer and the Bond Trustee.
"Bond Insurance Policy"means the Financial Guaranty Insurance Policy issued by MBIA
Insurance Corporation with respect to the Bonds.
"Bond Trustee" means Wachovia Bank, National Association.
"Bonds"means the$ Florida Municipal Loan Council Revenue Bonds,
Series 2005D.
"Borrowers" means the
• "Closing" refers to the transaction at which the Bonds are delivered by the Issuer to the
Underwriter and paid for by the Underwriter pursuant to this Agreement, as further described in
Section 5 hereof.
"Closing Documents" means the documents described in Section 6 hereof, which are
required to be delivered to the Underwriter at the Closing.
"Code"means the Internal Revenue Code of 1986,as amended,together with the regulations
thereunder.
"Continuing Disclosure Agreement"means,as to the Issuer and each respective Borrower,
the respective Continuing Disclosure Agreement,dated as of 1, 2005 made by the Issuer
and each Borrower, respectively, and the Bond Trustee.
"Issuer" means the Florida Municipal Loan Council.
"Issuer's Counsel" means Kraig A. Conn, Esq.
"Letter"means the Blanket Letter of Representations between the Issuer and The Depository
Trust Company,relating to the global book-entry system for ownership of beneficial interests in the
Bonds.
"Loan Agreement" means, as to a Borrower, the Loan Agreement, dated as of
• 1, 2005 between the Issuer and that Borrower.
"Loan Agreements" means the Loan Agreements, each dated as of 1, 2005
between the Issuer and the Borrowers.
"Official Statement" means the Official Statement of the Issuer and the Borrowers with
respect to the Bonds, substantially in the form of the Preliminary Official Statement,including the
cover page and all appendices, exhibits and statements included therein or attached thereto, and all
supplements thereto, with such changes as shall be necessary to conform to the terms of this
Agreement and shall be approved by the Underwriter, the Borrowers and the Issuer.
"Preliminary Official Statement" means the Preliminary Official Statement dated
2005 of the Issuer with respect to the Bonds,including the cover page and
all appendices, exhibits and statements included therein or attached thereto.
"Reserve Fund Instrument"means the Debt Service Reserve Fund Surety Bond issued by
MBIA Insurance Corporation with respect to the Bonds.
"State" means the State of Florida.
"Underwriter" means Banc of America Securities LLC.
"Underwriter's Counsel" means Moyle, Flanigan, Katz, Raymond& Sheehan, P.A.
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. SECTION 2. Purchase and Sale of the Bonds. Upon the terms and conditions contained
herein and upon the basis of the representations herein set forth,the Underwriter will purchase and
the Issuer will sell, all, but not less than all, of the Bonds at an aggregate purchase price of
S . The foregoing purchase price reflects S of net original issue premium
and S of underwriting discount with respect to the Bonds.
The Bonds will have such terms and conditions as described in the Preliminary Official
Statement and in Schedule A hereto, and will be issued pursuant to the Bond Indenture. The Issuer
will lend the proceeds of the Bonds to the Borrowers pursuant to the Loan Agreements. Pursuant
to the Loan Agreements,the Borrowers will in the aggregate agree to make payments in amounts and
at times corresponding to the principal and interest payments required on the Bonds.
The Underwriter agrees to make an initial bona-fide public offering of the Bonds at the
offering prices or yields set forth in Schedule A; provided,however, that the Underwriter reserves
the right to: (i) offer and sell the Bonds to certain dealers and others at prices lower than such
offering prices; (ii) change such offering prices after the initial offering to such extent as the
Underwriter shall deem necessary in connection with the marketing of the Bonds.
The Issuer and the Borrowers (i)ratify and approve the use by the Underwriter prior to the
date hereof of the Preliminary Official Statement in connection with the offering of the Bonds and
(ii)agree that the Official Statement and copies of the Loan Agreements and the Bond Indenture may
be used by the Underwriter in the offering of the Bonds and (iii) agree that they will cooperate
reasonably with the Underwriter if the Underwriter decides to qualify the Bonds under the securities
act of any state except as limited by Sections 30) and-4(l) hereof. The Issuer and the Borrowers
acknowledge that they have received a copy of the Preliminary Official Statement and have reviewed
the same to their satisfaction, including the information therein under the section "Underwriting."
SECTION 3. Representations, Warranties and Covenants of the Issuer. The Issuer
represents and warrants to and covenants with the Underwriter and the Borrowers that:
(a) The Issuer is a separate legal entity duly created and validly existing under
Section 163.01, Florida Statutes.
(b) The Issuer is authorized under the laws of the State to: (1)issue the Bonds for
the purposes for which they are to be issued as set forth in the Preliminary Official
Statement; (ii)loan the proceeds of the Bonds to the Borrowers for the purposes set forth in
the Preliminary Official Statement; (iii) enter into this Agreement, the Bond Indenture, the
Continuing Disclosure Agreement,the Loan Agreements,the Letter and then;(iv)pledge and
assign to the Bond Trustee the payments to be made by the Borrowers pursuant to, and the
Issuer's rights under, the Loan Agreements(other than as provided in the Bond Indenture)
as security for the payment of the principal of, premium, if any, and interest on the Bonds;
and(v)otherwise consummate the transactions contemplated by this Agreement,the Bonds,
the Bond Indenture, the Loan Agreements and the Preliminary Official Statement.
(c) The Resolutions of the Issuer adopted on December 17, 1998,and December
16,2004 approving and authorizing the adoption,execution and delivery of this Agreement,
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. the Bond Indenture,the Loan Agreements,the Continuing Disclosure Agreement,the Letter,
the Bonds and the Official Statement, were duly adopted at meetings of the Board of
Directors of the Issuer which were duly called and held pursuant to law and at which
quorums were present and acting throughout, and are in full force and effect.
(d) The Issuer has duly authorized (i) the execution and delivery of this
Agreement;(ii)the issuance and sale of the Bonds and the loan of the proceeds of the Bonds
to the Borrowers upon the terms and for the purposes set forth herein; (iii) the approval,
execution,delivery and/or receipt by the Issuer of the Bond Indenture,the Loan Agreements,
the Bonds,the Continuing Disclosure Agreement,the Letter and this Agreement and any and
all such other agreements and documents which may be required to be approved, executed,
delivered and/or received by the Issuer in order to carry out,give effect to,and consummate
the transactions contemplated herein and therein.
(e) The Issuer will on or before the Closing execute and deliver the Bond
Indenture, the Loan Agreements, the Letter, the Continuing Disclosure Agreement, the
Official Statement,the Bonds,and any and all such other agreements and documents which
may be required to be executed by the Issuer in order to carry out, give effect to, and
consummate the transactions contemplated herein and therein.
(f) The Bonds,when issued,delivered and paid for as provided herein and in the
Bond Indenture will constitute valid and binding limited obligations of the Issuer enforceable
in accordance with their terms and entitled to the benefits and security of the Bond Indenture
(subject to any applicable bankruptcy, reorganization, insolvency, moratorium or other
similar laws affecting the enforcement of creditors'rights generally and further subject to the
availability of equitable remedies).
(g) Except as may be set forth in the Preliminary Official Statement, there is no
action,suit,referendum,proceeding,inquiry or investigation at law or in equity or before or
by any court, governmental agency, arbitrator, authority, public board or body pending or,
to the knowledge of the Issuer, threatened against or affecting the Issuer (and, to the
knowledge of the Issuer, there is no meritorious basis therefor) wherein an unfavorable
decision, ruling or finding would adversely affect(i)the transactions contemplated herein
or in the Preliminary Official Statement, (ii) the issuance or sale of the Bonds or any other
bonds of the Issuer, (Ili)the validity or enforceability of the Bonds,the Bond Indenture, the
Loan Agreements, the Continuing Disclosure Agreement,the Letter,this Agreement or any
agreement or instrument to which the Issuer is a party and which is used or contemplated for
use in the consummation of the transactions contemplated herein or in the Preliminary
Official Statement,or(iv)the exclusion from gross income for federal income tax purposes
of the interest on the Bonds or the amounts to be received by the Issuer pursuant to the Loan
Agreements.
(h) Neither the corporate existence,authority or powers of the Issuer nor the titl e
of the officers of the Issuer to their respective offices are being contested or questioned by
any proceeding or in any manner, and no authority or proceeding for the issuance of the
Bonds granted or taken by the Issuer has been repealed,revoked or rescinded.
4
(1) The execution and delivery by the Issuer of the Official Statement, this
Agreement,the Bonds,the Bond Indenture,the Loan Agreements,the Continuing Disclosure
Agreement, the Letter and the other documents contemplated herein or in the Preliminary
Official Statement,and the compliance by the Issuer with their provisions do not and will not
conflict with or constitute on the part of the Issuer a breach of or a default under any existing
law, court or administrative regulation, decree, order, agreement, indenture, mortgage or
lease by which the Issuer is or may be bound.
(j) The Issuer agrees to cooperate reasonably with the Underwriter and
Underwriter's Counsel in any endeavor to qualify the Bonds for offering and sale under the
securities or "blue sky" laws of such jurisdictions of the United States as the Underwriter
may request; provided, however, that the Issuer shall not be required to qualify to transact
business or file written consent to suit or to file written consent to service of process in any
jurisdiction in connection with any such endeavor. The Issuer consents to the use by the
Underwriter of the Preliminary Official Statement and the final Official Statement in
obtaining such qualification. The Issuer shall not be obligated to pay any expenses or costs
(including legal fees) incurred in connection with such qualification.
(k) The Issuer will take no action between the date hereof and the date of initial
issuance of the Bonds which will cause any of the representations or warranties made in this
Section 3 to be untrue as of the initial issuance of the Bonds.
(1) The Issuer will not take any action or,to the extent the Issuer has control over
• such action, permit any action to be taken, which might result in the loss of the exclusion
from gross income for federal income tax purposes of interest on the Bonds.
(in) The Issuer is not and has not since December 31, 1975 been in default in the
payment of the principal of or interest on any obligation issued or guaranteed by it and the
Issuer has no knowledge that any event has occurred or is continuing that,with the lapse of
time or the giving of notice or both, would constitute an event of default under any such
obligation.
(n) Neither the Issuer nor anyone acting on its behalf has, directly or indirectly,
offered the Bonds for sale to,or solicited any offer to buy the same from,anyone other than
the Underwriter.
(o) The information contained in the Preliminary Official Statement(other than
the information in the section captioned"The-Borrowers,"and in Appendices G through_,
as to which no representation is made) is true and correct in all material respects, does not
contain any untrue statement of a material fact, and does not omit to state a material fact
required to be stated therein or necessary to make the statements made therein, in the light
of the circumstances under which they were made, not misleading.
(p) The Issuer has previously delivered to the Underwriter for review copies of
the Preliminary Official Statement. As of its date, the Preliminary Official Statement was
deemed final by the Issuer for purposes of Securities and Exchange Commission Rule
5
15c2-12 (17 CFR 240.15c2-12) ("Rule 15c2-12"). The Issuer shall provide to the
Underwriter, within a sufficient time period for final Official Statements to accompany
confirmations delivered by the Underwriter to potential investors in accordance with the rules
of the Municipal Securities Rule Making Board("MSRB"),but in no event later than seven
(7)business days following the date hereof,a quantity of final Official Statements adequate
to enable the Underwriter to meet the continuing obligations imposed on it by Rule 15c2-12
and the rules of the MSRB. The Issuer has complied in all material respects with all prior
undertakings made by it pursuant to Rule 15c2-12.
(q) If between the date of this Agreement and the earlier of(i)ninety(90) days
from the end of the "Underwriting Period"as defined in Rule 15c2-12 or(ii)the time when
the Official Statement is available to any person from a nationally recognized municipal
securities information repository (but in no event less than twenty-five(25) days following
the end of the Underwriting Period), any event shall occur, of which the Issuer has actual
knowledge, which might or would cause the Official Statement, as then supplemented or
amended,to contain any untrue statement of a material fact or to omit to state a material fact
necessary to make the statements therein,in the light of the circumstances under which they
were made, not misleading, the Issuer shall notify the Underwriter thereof, and, if in the
opinion of the Underwriter or the Issuer such event requires the preparation and publication
of a supplement or amendment to the Official Statement,the Issuer will at the expense of the
Borrowers supplement or amend the Official Statement.
SECTION 4. Representations, Warranties and Covenants of the Borrowers. Each
Borrower severally and not jointly represents and warrants to and covenants with the Underwriter
and the Issuer that:
(a) Such Borrower is duly organized and existing as a municipality under the laws
of the State.
(b) Such Borrower has full right, power and authority to enter into and execute
this Agreement,the Loan Agreement and the Continuing Disclosure Agreement,to approve
the Bond Indenture,those portions of the Official Statement applicable to such Borrower and
the Bonds, and to perforn any acts required to be performed by it by such documents.
(c) Such Borrower has duly authorized all necessary action to be taken by it for:
(i) the issuance and sale of the Bonds by the Issuer upon the teens and conditions set forth
herein,in the Preliminary Official Statement and in the Bond Indenture; (ii)the approval of
those portions of the Preliminary Official Statement applicable to such Borrower,the Bonds
and the Bond Indenture; (ill)the execution and delivery of this Agreement, the Continuing
Disclosure Agreement and the Loan Agreement;and (iv)any and all such other agreements
and documents as may be required to be executed, delivered or received by such Borrower
in order to carry out, effectuate and consummate the transactions contemplated herein and
therein.
(d) Such Borrower will at or before the Closing execute the Loan Agreement and
the Official Statement.
6
• (e) The information with respect to such Borrower contained in the Preliminary
Official Statement under the caption "The Borrowers" and in Appendices G through L as
applicable(the"Borrower Information"),is true and correct in all material respects,doesnot
contain any untrue statement of a material fact, and does not omit to state a material fact
required to be stated therein or necessary to make the statements made therein, in the light
of the circumstances under which they were made, not misleading.
(f) The audited financial statements of such Borrower contained in the
Preliminary Official Statement and to be contained in the final Official Statement, present
fairly the financial position of such Borrower as of the dates indicated and the results of its
operations for the periods specified;such financial reports and statements have been prepared
in conformity with generally accepted accounting principles consistently applied in all
material respects to the periods involved, except as may otherwise be stated in the notes
thereto; and there has been no material adverse change in the condition, financial or
otherwise,of such Borrower from that set forth in the audited financial statements,and such
Borrower has not incurred any material liabilities since the date of such financial statements.
(g) The proceeds of the Bonds will not be used by such Borrower in any way that
would adversely affect the exclusion from gross income for federal income tax purposes of
the interest on the Bonds.
(h) The execution and delivery by such Borrower of this Agreement, the
Continuing Disclosure Agreement and the Loan Agreement and the other documents
contemplated herein and in the Official Statement, the approval by such Borrower of the
Bonds,those portions of the Official Statement applicable to such Borrower and the Bond
Indenture, the application by such Borrower of the proceeds from the sale of the Bonds,
together with certain other moneys and securities, for the purposes set forth in the Official
Statement, and the compliance by such Borrower with the provisions hereof and thereof,
under the circumstances contemplated herein and therein, to the best knowledge of such
Borrower, will not in any material respect conflict with or constitute on the part of such
Borrower a breach of or default under either such Borrower's charter or under any ordinance,
resolution, indenture,mortgage,deed of trust,loan agreement,contract or any agreement or
other instrument of such Borrower to which such Borrower is a party,or of any existing law,
administrative regulation, court order or consent decree to which such Borrower or such
Borrower's property is subject.
(1) Except as may be described in the Preliminary Official Statement,to the best
knowledge of such Borrower, there is no action, suit, referendum, proceeding, inquiry or
investigation at law or in equity or before or by any court, governmental agency, arbitrator,
authority, public board or body pending or threatened, against or affecting such Borrow er
wherein an unfavorable decision,ruling or finding would materially and adversely affect(i)
the transactions contemplated herein or in the Preliminary Official Statement, (ii) the
issuance or sale of the Bonds, (ill) the existence of such Borrower or the entitlement of its
respective officers to their respective offices, (iv) the collection of revenues by such
Borrower from which such Borrower is obligated to make payments under the Loan
Agreement, (v)the financial condition of such Borrower, (vi) the federal tax-exempt status
• 7
of the interest on the Bonds, (vii)the validity or enforceability of the Loan Agreement;the
Continuing Disclosure Agreement,the Bond Indenture,the Bonds,or this Agreement,(viii)
the power of such Borrower to execute, deliver or approve such documents, (viii) the
business,properties,assets or financial condition of such Borrower or(ix)the ability of such
Borrower to comply with its obligations under :the Loan Agreement, the Continuing
Disclosure Agreement,the Bond Indenture,this Agreement or the transactions contemplated
by the Official Statement.
0) To the best knowledge of such Borrower, it is not now, and as of the date of
Closing will not be, in default with respect to any agreement to which such Borrower is a
party and which could have a material financial impact on such Borrower or which could
materially and adversely affect the ability of such Borrower to consummate the transactions
contemplated by the Preliminary Official Statement.
(k) All the property financed or refinanced,whether directly or indirectly,by such
Borrower with the proceeds of the Bonds is and will be owned by such Borrower.
(1) Such Borrower agrees to cooperate reasonably with the Underwriter and its
counsel in any endeavor to qualify the Bonds for offering and sale under the securities or
"blue sky" laws of such jurisdictions of the United States as the Underwriter may request,
provided that such Borrower shall not be required to qualify to do business in any jurisdiction
where it is not now so qualified, or to take any action which would subject it to general
service of process in any jurisdiction where it is not now so subject. Such Borrower ratifies
and consents to the use of the Preliminary Official Statement, the Official Statement and
drafts thereof prior to the availability of the Official Statement by the Underwriter in
obtaining such qualification.
(rn) No default, event of default or event which, with the giving of notice or the
passage of time, or both, would constitute a default or an event of default under the Bond
Indenture,the Loan Agreement or under any document executed by such Borrower relating
to the Bonds,has occurred and is continuing.
(n) Such Borrower has not taken or omitted to take any action, and knows of no
action that any other person has taken or omitted to take,which would cause the interest on
the Bonds to be includible in the gross income of the recipients thereof for federal income
tax purposes, and covenants that it will not take any action or omit to take any action which
could have such result.
(o) Such Borrower has not since December 31, 1975, been in default as to the
payment of principal or interest on any obligation issued or guaranteed by it or on its behalf.
(p) Such Borrower has complied in all material respects with all prior
undertakings made by it pursuant to Rule 15c2-12.
SECTION 5. Closing, Delivery and Payment. The Closing shall be held on _
2005 at the offices of Bryant Miller& Olive P.A. in Tallahassee, Florida or at such other time and
8
• other place as is agreed upon by the Underwriter and the Issuer. The Bonds will be delivered no later
than 24 hours prior to the Closing to the offices of The Depository Trust Company in New York,
New York or to such other place in New York, New York designated by the Underwriter, in
typewritten fully registered form,bearing CUSIP numbers and with one certificate for each maturity
of the Bonds in the entire principal amount of such maturity registered in the name of Cede &Co.
Subject to the terms and conditions hereof,the Underwriter will on the Closing date accept
the delivery of the Bonds and pay the purchase price thereof in immediately available funds to the
order of the Issuer. The Underwriter has entered into this Agreement in reliance upon the
representations and warranties of the Issuer and the Borrowers contained herein,and in reliance upon
the representations and warranties to be contained in the Closing Documents, and upon the
perfonnance by the Issuer and the Borrowers of their respective obligations hereunder,both as of the
date hereof and as of the date of the Closing. Accordingly,the Underwriter's obligation under this
Agreement to purchase, to accept delivery of and to pay for the Bonds is conditioned upon the
performance by the Issuer and the Borrowers of their respective obligations to be performed
hereunder and under such documents and instruments at or prior to the date of the Closing, and is
also subject to the following additional conditions: (a) all representations and warranties of the
Issuer and the Borrowers contained herein shall be true,complete and correct on the date hereof and
on and as of the date of the Closing; (b) at or prior to the Closing, the Underwriter shall have
received all of the Closing Documents.
If the Issuer or the Borrowers shall be unable to satisfy the conditions to the obligation of the
Underwriter to purchase,to accept delivery of and to pay for the Bonds contained in this Agreement,
or if the obligation of the Underwriter to purchase, to accept delivery of and to pay for the Bonds
shall be terminated for any reason pennitted by this Agreement,this Agreement shall terminate and
none of the Underwriter,the Issuer or the Borrowers shall be under any further obligation hereunder,
except that the respective obligations of the parties set forth in Section 10 hereof shall continue in
full force and effect.
SECTION 6. Closing Documents. The Closing Documents shall consist of the following
documents,each properly executed, certified or otherwise verified, dated,and in such form as shall
be satisfactory to Bond Counsel,the Borrowers,the Issuer,the Issuer's Counsel,the Underwriter and
Underwriter's Counsel:
(a) the Bond Indenture;
(b) the Loan Agreements;
(c) the Preliminary Official Statement;
(d) the Official Statement;
(e) the Letter;
(f) the Continuing Disclosure Agreements;
9
(g) the Resolutions of the Issuer referred to in Section 3(c) hereof,
(h) the Issuer's closing certificate confirming the accuracy as of the Closing of the
representations made by the Issuer herein, and certifying that the information contained in the
Official Statement (other than the information in the section captioned "The Borrowers," and in
Appendices G through_as to which no representation is made)as of its date and as of the date of
the Closing was and is true and correct in all material respects, and did not as of the date of the
Official Statement contain and does not as of the date of the Closing contain any untrue statement
of a material fact and did not as of the date of the Official Statement and does not as of the date of
Closing omit to state a material fact required to be stated therein or necessary to make the statements
made therein, in the light of the circumstances under which they were made, not misleading;
(1) the closing certificate of each Borrower confinning the accuracy as of the Closing of
the representations made by it herein,and certifying that,the Borrower Information contained in the
Official Statement as of its date and as of the date of the Closing was and is true and correct in all
material respects,and did not as of its date contain and does not as of the date of the Closing contain
any untrue statement of a material fact and did not as of its date and does not as of the date of
Closing omit to state a material fact required to be stated therein or necessary to make the statements
made therein, in the light of the circumstances under which they were made, not misleading;
(j) the approving opinion of Bond Counsel substantially in the form included as
Appendix E to the Preliminary Official Statement for the Bonds;
(k) a supplemental opinion of Bond Counsel;
(1) an opinion of legal counsel for each Borrower;
(m) an opinion of counsel to the Bond Trustee;
(n) an opinion of the Issuer's Counsel;
(o) evidence satisfactory to Bond Counsel and Underwriter's counsel that each Borrower
is a Florida municipality.
(p) appropriate certifications by the Issuer and each Borrower in form and substance
satisfactory to Bond Counsel, to enable it to opine that the interest on the Bonds is excluded from
gross income for federal income tax purposes;
(q) copies of any and all documents required by the provisions of the Loan Agreements
and the Bond Indenture to be obtained or furnished by the Borrower and/or the Issuer at or prior to
the Closing including, but not limited to, the certificates, written statements, certified resolutions,
executed documents, opinions, requests and authorizations described in the Bond Indenture;
(r) the Bond Insurance Policy;
(s) the Reserve Fund Instrument;
10
(t) the Bond Trustee's closing certificate, including certificate of fiduciary powers and
good standing and certified resolution with respect to authority to authenticate the Bonds and serve
as trustee under the Bond Indenture, together with an appropriate certificate of incumbency;
(u) the opinion of Underwriter's Counsel covering such matters related to the transactions
herein contemplated as the Underwriter may reasonably request;
(v) IRS Form 8038 - G with respect to the Bonds executed by the Issuer;
(w) evidence that the Bonds have been rated not lower than the ratings set forth in
Schedule A hereto and that such ratings are in effect at the date of Closing and are not then being
reviewed;
(x) specimen Bonds;
(y) evidence as may be required by Bond Counsel or Underwriter's Counsel as to the
compliance with the conditions of the Bond Indenture and Loan Agreements for the issuance of the
Bonds thereunder;
(z) such documents as may be required by Bond Counsel or Underwriter's Counsel to
evidence the satisfaction of the conditions of the Bond Indenture and Loan Agreements to the
issuance of the Bonds thereunder; and
(aa) such additional legal opinions, certificates, instruments and other documents as the
Underwriter, the Borrowers, the Issuer, Underwriter's Counsel, Issuer's Counsel or Bond Counsel
may reasonably request to evidence compliance by the Issuer and the Borrowers with legal
requirements; the truth and accuracy in all material respects, as of the date of Closing, of the
respective representations,warranties and covenants contained herein and in the Official Statement;
and the due performance or satisfaction by them of all material agreements to be perfonned by them
and all material conditions to be satisfied by them at or prior to the Closing.
SECTION 7. Termination by the Underwriter. This Agreement may be terminated in
writing by the Underwriter if any of the following shall occur: (i)this Agreement shall not have been
accepted by the Issuer or shall not have been approved by the Borrowers within the time herein
provided; (ii) the signed Official Statement shall not have been provided within the time required
by this Agreement;(iii)the Bonds and all of the Closing Documents shall not have been delivered
to the Underwriter as of 1:00 P.M. (New York, New York time) on the date of Closing; (iv)
legislation shall be enacted, or actively considered for enactment,or a court decision announced,or
a ruling,regulation or decision by or on behalf of a governmental agency having jurisdiction of the
subject matter shall be made,to the effect that the revenues or other income of the general character
to be derived by the Issuer or by any similar body,or interest on obligations of the general character
of the Bonds, shall not be excludable from gross income for federal income taxes purposes, or that
securities of the general character of the Bonds shall not be exempt from registration under the
Securities Act of 1933, as amended, or that the Bond Indenture shall not be exempt from
qualification under the Trust Indenture Act of 1939, as amended; (v)there shall exist any event or
circumstance which, in the reasonable opinion of the Underwriter,either makes untrue or incorrect
�. 11
in a material respect any statement or information contained in the Official Statement, or is not
reflected in the Official Statement but should be reflected therein in order to make the statements and
information contained therein not misleading in a material adverse respect; (vi) there shall have
occurred any outbreak or escalation of hostilities or other national or international calamity or crisis,
the effect ofsuch outbreak,escalation,calamity or crisis on the financial markets of the United States
of America being such as,in the reasonable opinion of the Underwriter,would snake it impracticable
for the Underwriter to sell the Bonds; (vii)there shall be in force a general suspension of trading on
the New York Stock Exchange, or minimum or maximum prices for trading shall have been fixed
and be in force, or a stop order, ruling or regulation by the Securities and Exchange Commission
shall be issued or made,the effect of which would be that the issuance,offering or sale of the Bonds
would be in violation of any provision of the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934,as amended,the Trust Indenture Act of 1939,as amended,or the Investment
Company Act of 1940,as amended;(viii)in the reasonable judgment of the Underwriter,the market
price of the Bonds,or the marketprice generally of obligations of the general character of the Bonds,
might be materially and adversely affected because: (a)additional material restrictions not in force
as of the date hereof shall have been imposed upon trading in securities generally by any
governmental authority or by any national securities exchange,or(b)the New York Stock Exchange
or other national securities exchange, or any governmental authority, shall have imposed, as to the
Bonds or similar obligations,anymaterial restrictions notnow in force,'or increased materially those
now in force, with respect to the extension of credit by,or the charge to the net capital requirements
of, the Underwriter; (ix) a general banking moratorium shall have been declared by either federal,
New York or Florida authorities; (x) a war involving the United States of America shall have been
declared,or any conflict involving the armed forces of any country shall have escalated,or any other
national emergency relating to the effective operation of government or the financial community
shall have occurred,which,in the reasonable opinion of the Underwriter,materially adversely affects
the market price of the Bonds;(xi)any litigation shall be instituted,pending or threatened to restrain
or enjoin the issuance or sale of the Bonds or in any way protesting or affecting any authority for or
the validity of the Bonds,the Bond Indenture or the Loan Agreements or the existence or powers of
the Issuer or the Borrowers; (xii)there is a withdrawal or downgrading of any investment rating on
the Bonds or on any other obligations of any of the Borrowers; or(xiii) there shall have occurred a
default with respect to the debt obligations of, or the institution of proceedings under any federal
bankruptcy laws by or against,any state of the United States or any city located in the United States
having a population of more than 100,000, the effect of which, in the reasonable opinion of the
Underwriter, would materially and adversely affect the ability of the Underwriter to market the
Bonds.
SECTION 8. Termination by the Issuer. This Agreement may be tenninated in writing
by the Issuer in the event that the Underwriter shall fail to accept delivery of the Bonds on the
Closing date upon tender thereof to the Underwriter by the Issuer and delivery to the Underwriter
of all of the Closing Documents.
SECTION 9. Changes Affecting the Official Statement after the Closing. If any event
relating to or affecting the Issuer or the Borrowers shall occur, the result of which would make it
necessary, in the opinion of the Issuer, or the Underwriter or Underwriter's Counsel, to amend or
supplement the Official Statement in order to make it not misleading in the light of the circumstances
existing at that time, Issuer shall forthwith prepare and furnish to the Underwriter, at the Issuer's
12
expense,a reasonable number of copies of an amendment of or supplement to the Official Statement
in form and substance satisfactory to the Issuer, so that the Official Statement then will not contain
an untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances existing at that time, not misleading.
SECTION 10. Expenses. Except as hereinafter specifically provided, all expenses and
costs of the Issuer incident to the perfomlance of its obligations in connection with the authorization,
issuance and sale of the Bonds, including fees of accountants, feasibility consultants, financial
advisors, Issuer's Counsel, Bond Counsel, the Bond Trustee and the expenses of printing the
Preliminary Official Statement and the Official Statement, shall be paid by the Issuer. The
agreement contained in this section shall survive any termination of this Agreement.
SECTION 11. Notices. Any notice or other communication to be given to the Issuer orthe
Borrowers under this Agreement may be given by delivering the same in writing to their respective
addresses set forth above or on the applicable signature page,as the case may be;and any such notice
or other communication to be given to the Underwriter may be given by delivering the same in
writing to the Underwriter at Banc of America Securities LLC, 1640 Gulf-to-Bay Boulevard,FL2-
020-01-04, Clearwater, Florida 33755.
SECTION 12. Parties in Interest; Borrowers's Undertakings; Survival of
Representations. This Agreement is made solely for the benefit of the Issuer, the Borrowers and
the Underwriter, including the successors and assigns of the Underwriter, and no other person,
partnership,association or corporation shall acquire or have anyrights hereunder or by virtue hereof.
All representations and agreements by the Issuer, the Underwriter and the Borrowers contained in
this Agreement shall remain in full force and effect regardless of any investigation made by or on
behalf of the Underwriter and shall survive the delivery of and payment for the Bonds.
SECTION 13. Governing Law. This Bond Purchase Contract is to be governed by and
construed according to the laws of the State of Florida.
[The signatures to this document are contained on pages S-1 through S-_, attached]
13
Signature Page to Bond Purchase Contract
dated _, 2005
Re: Florida Municipal Loan Council Revenue Bonds, Series 2005D
BANC OF AMERICA SECURITIES LLC
By:
Its Managing Director
S-1
• Signature Page to Bond Purchase Contract
dated _, 2005
Re: Florida Municipal Loan Council Revenue Bonds, Series 2005D
FLORIDA MUNICIPAL LOAN COUNCIL
By:
Its Chairinan
Address: c/o Florida League of Cities, Inc.
301 South Bronough Street
Suite 300
Tallahassee, Florida 32302
•
S-2
Signature Page to Bond Purchase Contract
dated _, 2005
Re: Florida Municipal Loan Council Revenue Bonds, Series 2005D
Florida
By:
Its:
Address:
S-3
SCHEDULE A
Tenns of the Bonds
Dated: _, 2005
Interest Payment Dates: -------- 1 and —1, commencing
--------------
1, 200
Maturity Date Interest
( 1 Amount Rate
Optional Redemption.
Scheduled Mandatory Redemption.
Extraordinary Mandatory Redemption. The Bonds are also subject to extraordinary mandatory
redemption as a result of acceleration of a Loan pursuant to a Loan Agreement at any time,in whole
or in part, at a redemption price equal to the principal amount thereof, plus accrued interest to the
• redemption date, without premium, but only with the approval of the Insurer, from all Liquidation
Proceeds or Insurance Proceeds received by the Trustee as a result of an acceleration of any Loan.
"Liquidation Proceeds"means amounts received by the Trustee or the Issuer in connection with the
enforcement of any of the remedies under a Loan Agreement after the occurrence of an "event of
default"under a Loan Agreement which has not been waived or cured. "Insurance Proceeds"means
amounts which are deposited by the Insurer with the Trustee pursuant to Article IX of the Indenture
as a condition of the direction of acceleration of all or a portion of the Bonds by the Insurer.
Ratings: Standard and Poor's Ratings Services, a division of The McGraw-Hill Companies and
Fitch, Inc. shall have assigned ratings of"AAA" and "AAA," respectively, to the Bonds with the
understanding that upon delivery of the Bonds, a financial guaranty insurance policy will be issued
by the Insurer. In addition, S&P shall have assigned a rating of"_"to the Bonds without regard to
the insurance policy.
G:\14184\446(mIc 2005D\Bond[lurch Contra ct(1).wpd A-I