HomeMy WebLinkAboutR-2002-033 Authorizing the issuance of its promissory notes, series 2002A and 2002B in the principal amounts RESOLUTION NO. 2002-033
A RESOLUTION OF THE CITY OF DANIA BEACH, FLORIDA,
AUTHORIZING THE ISSUANCE OF ITS PROMISSORY NOTES, SERIES
2002A AND 2002B IN THE PRINCIPAL AMOUNTS NOT TO EXCEED
$2,350,000 AND $650,000, RESPECTIVELY, TO PAY FOR CERTAIN
CAPITAL AND NON CAPITAL PROJECTS OF THE CITY AND COSTS
RELATED THERETO;PROVIDING FOR THE PAYMENT OF THE NOTES
FROM THE FRANCHISE FEES RECEIVED FROM FPL; PRESCRIBING
THE FORM, TERMS AND DETAILS OF THE NOTES; AWARDING THE
NOTES TO SUNTRUST BAND BY NEGOTIATED SALE; DESIGNATING
THE SERIES 2002A NOTE AS A "QUALIFIED TAX-EXEMPT
OBLIGATION"WITHIN THE MEANING OF SECTION 265(b)(3)OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED; MAKING
CERTAIN COVENANTS AND AGREEMENTS IN CONNECTION
THEREWITH;PROVIDING FOR CONFLICTS;AND PROVIDING FOR AN
EFFECTIVE DATE.
BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA;
SECTION 1. DEFINITIONS. As used herein, unless the context otherwise requires:
® "Act"means, as applicable,Article VIIl, Section 2 of the Constitution of the State of Florida,
Chapter 166, Florida Statutes, the Charter of the City of Dania Beach, and other applicable
provisions of law.
".Annual Budget" means the annual budget prepared by the City for each Fiscal Year in
accordance with Section 11 below and in accordance with the laws of the State of Florida.
"Business Day" means any day which is not a Saturday, Sunday or legal holiday in Broward
County, Florida.
"Chief Financial Officer"means the chief financial officer of the City as defined in Section
218.403, Florida Statutes.
"City" means the City of Dania Beach, a Florida municipal corporation, or its successor.
"City Manager" means the City Manager of the City and such other person as may be duly
authorized to act on his or her behalf.
"Clerk" means the City Clerk or any Deputy Clerk of the City.
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"Code" means the Internal Revenue Code of 1986, as amended, including the applicable
regulations of the Department of the Treasury (including applicable final regulations, temporary
regulations and proposed regulations), the applicable rulings of the Internal Revenue Service
(including published Revenue Rulings and private letter rulings) and applicable court decisions.
"Costs of the Project" means with respect to the Project, all items of cost authorized by the
Act, including the costs of issuance of the Notes.
"Dated Date" means the date of issuance of the Notes.
"Fiscal Year" means the period commencing on October 1 of each year and ending on the
succeeding September 30,or such other consecutive 12-month period as maybe hereafter designated
as the fiscal year of the City pursuant to general law.
"Franchise Fees" means the amounts received from Florida Power & Light Company
("FPL") pursuant to Ordinance No. 2002-013 of the City and that certain Franchise Agreement
between the City and FPL dated March 26, 2002, or otherwise.
"Governing Body" means the City Commission of the City, or its successor in function.
"Mayor"means the Mayor of the City and such other person as may be duly authorized to act
on the Mayor's behalf.
"Noteholder"or"Holder"means the registered owner(or its authorized representative)of the
Notes.
"Notes" means the Series 2002A Note and the Series 2002B Note.
"Series 2002A Note" means the Promissory Note, Series 2002A authorized to be issued by
the City in the aggregate principal amount not to exceed$2,350,000,the form of which is attached as
Exhibit"A"hereto.
"Series 2002B Note" means the Promissory Note, Series 2002B authorized to be issued by
the City in the aggregate principal amount not to exceed$650,000,the form of which is attached as
Exhibit "B" hereto.
"Series 2002A Project" means the capital and non capital projects listed on Exhibit "C"
hereto and costs related thereto, and includes interest_ accrued on the Series 2002A Note through
January 1, 2003.
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"Series 2002B Project" means the construction of a restaurant on the City's pier, including
costs related thereto, and includes interest accrued on the Series 2002B Note through January 1,
2003.
"Projects" means the Series 2002A Project and the Series 2002B Project.
"Resolution"means this Resolution, authorizing the issuance of the Notes, as the same may
from time to time be amended, modified or supplemented.
"State" means the State of Florida.
"SunTrust" means SunTrust Bank, the initial purchaser of the Notes, and its successors and
assigns
SECTION 2. AUTHORITY FOR RESOLUTION. This Resolution is enacted pursuant to
the provisions of the Act. The City has ascertained and hereby determined that enactment of this
Resolution is necessary to carry out the powers,purposes and duties expressly provided in the Act,
that each and every matter and thing as to which provision is made herein is necessary in order to
carry out and effectuate the purposes of the City in accordance with the Act and to carry out and
effectuate the plan and purpose of the Act, and that the powers of the City herein exercised are in
each case exercised in accordance with the provisions of the Act and in furtherance of the purposes
of the City.
• SECTION 3. RESOLUTION TO CONSTITUTE CONTRACT. In consideration of the
purchase and acceptance of the Notes by those who shall hold the same from time to time, the
provisions of this Resolution shall be a part of the contract of the City with the Holder, and shall be
deemed to be and shall constitute a contract between the City and the Holder from time to time of the
Notes. The pledge made in this Resolution and the provisions,covenants and agreements herein set
forth to be performed by or on behalf of the City shall be for the benefit, protection and security of
the Holder of the Notes in accordance with the terms hereof.
SECTION 4. AUTHORITY FOR ISSUANCE OF NOTES. Subject and pursuant to the
provisions hereof, a note to be known as "City of Dania Beach, Florida, Promissory Note, Series
2002A" is hereby authorized to be issued in an aggregate principal amount not to exceed Two
Million Three Hundred Fifty Thousand Dollars ($2,350,000.00) for the purpose of financing the
Series 2002A Project, and a note to be known as "City of Dania Beach, Florida, Promissory Note,
Series 2002B" is hereby authorized to be issued in an aggregate principal amount not to exceed Six
Hundred Fifty Thousand Dollars ($650,000.00) for the purpose of financing the Series 2002B
Project. The City shall not use the proceeds of the Notes for any purpose other than the Projects
without the written approval of SunTrust,which approval may be conditioned upon the receipt of an
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opinion of nationally recognized bond counsel to the effect that such use will not adversely affect the
exclusion from the gross income of the Holder of the interest on the Series 2002A Notes.
SECTION 5. DESCRIPTION OF NOTES.
The Series 2002A Note shall be issued in one(1)typewritten certificate and shall be dated the
Dated Date. The Series 2002A Note shall bear interest from the Dated Date at the rate of 4.33%.
Principal of and accrued interest on the Series 2002A Note will be payable in 120 equal installments,
with the first installment payable January 1, 2003. Interest on the Series 2002A Note shall be
calculated on the basis of a 360 day year consisting of twelve (12) thirty day months. The interest
rate on the Series 2002A Note shall be adjusted upon the occurrence of an"Event of Taxability" as
set forth on the form of Series 2002A Note attached as Exhibit "A" hereto. Details of the Series
2002A Note shall be as provided in the form of Series 2002A Note attached as Exhibit "A"hereto.
The Series 2002B Note shall be issued in one(1)typewritten certificate and shall be dated the
Dated Date. The Series 2002B Note shall bear interest from the Dated Date at the rate of 6.54%.
Principal of and accrued interest on the Series 2002B Note will be payable in 120 equal installments,
with the first installment payable January 1, 2003. Interest on the Series 2002B Note shall be
calculated on the basis of a 360 day year consisting of twelve(12)thirty day months. Details of the
Series 2002B Note shall be as provided in the form of Series 2002B Note attached as Exhibit "B"
hereto.
Each Note shall be in registered form,contain substantially the same terms and conditions as
set forth in Exhibit"A" and Exhibit"B"hereto,respectively, shall be payable in lawful money of the
United States of America, and the principal thereof, interest thereon and any other payments
thereunder shall be payable by check, wire, draft or bank transfer to the Holder at such address as
may be provided in writing by such Holder to the Clerk. So long as the Notes shall remain
outstanding,the City shall maintain and keep books for the registration and transfer of the Notes.The
Notes may be assigned as provided in the form of Note attached as Exhibit "A" and Exhibit "B"
hereto, respectively.
SECTION 6. EXECUTION OF NOTES. The Notes shall be executed in the name of the
City by the manual signature of the Clerk and the City Manager, the seal of the City shall be
imprinted,reproduced or lithographed on the Notes,and the Notes shall be attested to by the manual
signature of the Mayor. If any officer whose signature appears on the Notes ceases to hold office
before the delivery of the Notes, such signature shall nevertheless be valid and sufficient for all
purposes. In addition, the Notes may bear the signature of, or may be signed by, such persons as at
the actual time of execution of the Notes shall be the proper officers to sign the Notes although at the
date of the Notes or the date of delivery thereof such persons may not have been such officers.
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SECTION 7. NOTES MUTILATED,DESTROYED,STOLEN OR LOST. If allote is
mutilated,destroyed, stolen or lost,the City may,in its discretion(i)'deliver a duplicate replacement
Note,or(ii)pay a Note that has matured or is about to mature.A mutilated Note shall be surrendered
to and canceled by the Clerk or its duly authorized agent. The Holder must furnish the City or its
agent proof of ownership of any destroyed, stolen or lost Note; post satisfactory indemnity; comply
with any reasonable conditions the City or its agent may prescribe; and pay the City's or its agent's
reasonable expenses.
Any such duplicate Note shall constitute an original contractual obligation on the part of the
City whether or not the destroyed, stolen, or lost Note be at any time found by anyone, and such
duplicate Note shall be entitled to equal and proportionate benefits and rights as to lien on, and
source of and security for payment from,the funds pledged to the payment of the Note so mutilated,
destroyed, stolen or lost.
SECTION 8. PROVISIONS FOR REDEMPTION. Each Note may be prepaid in whole
or in part at any time prior to maturity in the manner and with the prepayment premium provided in
the form of Note attached as Exhibit "A" and Exhibit "B" hereto, respectively.
SECTION 9. NOTES NOT TO BE GENERAL.INDEBTEDNESS OF THE CITY. The
Notes shall not be or constitute a general obligation or indebtedness of the City within the meaning
of the Constitution of Florida,but shall be payable from and secured solely in the manner described
in Section 10 hereof,in the manner and to the extent herein provided. No Holder shall ever have the
right to compel the exercise of the ad valorem taxing power of the City or taxation in any form on
any real or personal property to pay the Notes or the interest thereon,nor shall any Holder be entitled
to payment of such principal and interest from any funds of the City other than the Franchise Fees.
The Holder shall have no lien upon any real or tangible personal property of the City.
SECTION 10. PLEDGE OF REVENUES. The payment of the principal of,premium,if
any, and interest on the Notes shall be secured forthwith equally and ratably by an irrevocable lien on
and pledge of the Franchise Fees, prior and superior to all other liens or encumbrances on the
Franchise Fees, and the City hereby irrevocably pledges the Franchise Fees to the payment of the
principal of,premium,if any,and interest on the Notes as the same shall become due. Such pledge of
the Franchise Fees shall be cumulative to the extent not paid,and shall continue until the Notes have
been paid in full.
The City covenants that for so long as the Notes shall remain unpaid, it will continue to
impose the Franchise Fees,and will not amend or repeal the provisions of the resolutions,ordinances
and/or agreements of the City that impose the Franchise Fees as of the date hereof so as to reduce the
rate at which the Franchise Fees are imposed or the services or commodities subject to the Franchise
Fees, or otherwise modify the proceedings of the City relevant to the Franchise Fees in any manner
so as to impair or adversely affect the ability of the City to impose and collect the Franchise Fees.
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The City further agrees to take such legal action as may be necessary to enforce its rights under the
resolutions, ordinances and/or agreements pursuant to which the City impose the Franchise Fees.
The City represents that the Franchise Fees are not pledged or encumbered in any manner.
The City further represents that the revenues generated by the Franchise Fees are estimated to be
sufficient to pay the principal of,premium,if any,and interest on the Notes as the same shall become
due.
SECTION 11. OPERATING BUDGET;FINANCIAL STATEMENTS. Before the first
day of each Fiscal Year the Governing Body shall prepare, approve and adopt in the manner
prescribed by law, a detailed Annual Budget. Such Annual Budget shall provide for revenues
sufficient to comply with the City's obligations hereunder,including any unsatisfied obligations from
prior Fiscal Years. The City shall annually provide to SunTrust a copy of the Annual Budget and the
City's audited financial statements prepared in accordance with law, each within thirty(30)days of
its completion.
SECTION 12. ISSUANCE OF ADDITIONAL OBLIGATIONS. The City will not issue
any obligations or incur any liability payable from or secured by the Franchise Fees and having a
right to payment therefrom that is prior to the right to payment therefrom of the Notes. The City may
issue obligations payable from the Franchise Fees on a parity with the Notes("Additional Debt"),so
long as no Event of Default exists hereunder and, for the most recently concluded Fiscal Year
preceding the proposed issuance of such Additional Debt (a)the Franchise Fees in such Fiscal Year
equaled at least one hundred fiftypercent(150%)of the sum of(i)the maximum annual debt service
on the Notes and (ii) the maximum annual debt service on such Additional Debt, and (b) the other
covenants of the City contained herein will continue to be met. For purposes of determining
compliance with (a)(ii) immediately above, the interest rate on any Additional Debt which bears
interest at a variable rate will be deemed to be the greater of(a)the projected initial rate of interest to
be borne by such Additional Debt or(ii)six percent(6.00%)per annum if the Additional Debt is tax
exempt and nine percent (9.00%) per annum if the debt is not tax exempt.
SECTION 13.AWARD OF NOTES BY NEGOTIATED SALE.Because of the nature of
the Notes,the maturity of the Notes and the prevailing market conditions,the negotiated sale of the
Notes to SunTrust in substantial accordance with SunTrust's Commitment Letter to the City dated
March 20,2002,which letter is attached hereto as Exhibit"D"(the"Commitment"),is hereby found
to be in the best interests of the City;provided,however,that the provisions of this Resolution shall
control to the extent of any conflict with the Commitment.
SECTION 14. MODIFICATION, AMENDMENT OR SUPPLEMENT. This
Resolution may be modified, amended or supplemented by the City from time to time prior to the
issuance of the Notes hereunder. Thereafter, no modification, amendment or supplement of this
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. Resolution,or of any resolution amendatory hereof or supplemental hereto,maybe made without the
consent in writing of the Holder.
SECTION 15. TAX COVENANTS. It is the intention of the City and all parties under its
control that the interest on the Series 2002A Note be and remain excluded from gross income for
federal income tax purposes and to this end the City hereby represents to and covenants with each
Holder of the Series 2002A Note issued hereunder that it will comply with the requirements
applicable to it contained in Section 103 and Part IV of Subchapter B of Chapter 1 of the Code to the
extent necessary to preserve the exclusion of interest on the Series 2002A Note issued hereunder
from gross income for federal income tax purposes. Specifically, without intending to limit in any
way the generality of the foregoing, the City covenants and agrees:
a) to refrain from using proceeds from the Series 2002A Note in a manner that might
cause the Series 2002A Note to be classified as a private activity bond under Section 141(a)
of the Code; and
b) to refrain from taking any action that would cause the Series 2002A Note to become
an arbitrage bond under Section 148 of the Code.
The City understands that the foregoing covenants impose continuing obligations of the City
that will exist as long as the requirements of Section 103 and Part IV of Subchapter B of Chapter 1
of the Code are applicable to the Series 2002A Note.
® SECTION 16. EVENTS OF DEFAULT; REMEDIES.
A. Events of Default. Any one or more of the following events shall be an 'Event of Default":
(i) The City shall fail to pay the principal of or interest on the Notes when due;
(ii) The City shall default under any obligation for the repayment of money;
(iii) The City shall (a) admit in writing its inability to pay its debts generally as they
become due, (b) file (or have filed against it and not dismissed within 90 days) a petition in
bankruptcy or take advantage of any insolvency act,(c)make an assignment for the general benefit of
creditors, (d) consent to the appointment of a receiver for itself or for the whole or any substantial
part of its property, or (e) be adjudicated a bankrupt; or
(iv) The City shall default in the due and punctual performance of any of its covenants,
conditions, agreements and provisions contained herein or in the Notes, and such default shall
continue for thirty(30)days after written notice specifying such default and requiring the same to be
remedied shall have been given to the City by the Holder of the Notes; provided that such default
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shall not be an Event of Default if the City within such 30 day period commences and carries out
with due diligence to completion(although not necessarily within such thirty(30) day period) such
action as is necessary to cure the same.
B. Remedies on Default. If an Event of Default shall have occurred and be continuing, the
Holder may proceed to protect and enforce its rights hereunder by a suit,action or special proceeding
in equity or at law,by mandamus or otherwise,either for the specific performance of any covenant or
agreement contained herein or for enforcement of any proper legal or equitable remedy as such
Holder shall deem most effectual to protect and enforce the rights aforesaid.
No remedy herein conferred upon or reserved to the Holder is intended to be exclusive of any
other remedy or remedies, and each and every such remedy shall be cumulative, and shall be in
addition to every other remedy given hereunder or now or hereafter existing at law or in equity.
No delay or omission of a Holder to exercise any right or power accruing upon any Event of
Default shall impair any such right or power or shall be construed to be a waiver of any such Event
of Default, or an acquiescence therein; and every power and remedy given by this article may be
exercised from time to time, and as often as may be deemed expeditious by a Holder.
SECTION 17. GENERAL AUTHORITY. The Mayor and the members of the Governing
Body and the officers, attorneys and other agents or employees of the City are hereby authorized to
do all acts and things required of them by this Resolution, or desirable or consistent with the
requirements hereof, for the full punctual and complete performance of all the terms,covenants and
agreements contained herein or in the Notes, including the execution of any documents or
instruments relating to payment of the Notes, and each member, employee, attorney and officer of
the City is hereby authorized and directed to execute and deliver any and all papers and instruments
and to do and cause to be done any and all acts and things necessary or proper for carrying out the
transactions contemplated hereunder.
SECTION 18. BANK QUALIFIED ISSUE. The City hereby designates the Series 2002A
Note to be a "qualified tax-exempt obligation" within the meaning of Section 265(b) of the Code.
SECTION 19. WAIVER OF JURY TRIAL. SUNTRUST AND THE CITY HEREBY
KNOWINGLY,VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY
HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS RESOLUTION, THE NOTES
OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION
HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN), OR ACTIONS OF EITHER PARTY.
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SECTION 20. SEVERABILITY. If any one or more of the covenants, agreements or
provisions of this Resolution should be held contrary to any express provision of law or contrary to
the policy of express law,though not expressly prohibited, or against public policy, or shall for any
reason whatsoever be held invalid,then such covenants, agreements or provisions shall be null and
void and shall be deemed separate from the remaining covenants, agreements or provisions of this
Resolution or of the Notes issued hereunder,which remaining covenants,agreements and provisions
shall remain in full force and effect.
SECTION 21. NO THIRD-PARTY BENEFICIARIES. Except as herein otherwise
expressly provided,nothing in this Resolution expressed or implied is intended or shall be construed
to confer upon any person, firm or corporation other than the parties hereto and a subsequent holder
of the Notes issued hereunder, any right, remedy or claim, legal or equitable, under or by reason of
this Resolution or any provision hereof, this Resolution and all its provisions being intended to be
and being for the sole and exclusive benefit of the parties hereto and the holder from time to time of
the Notes issued hereunder.
SECTION 22. CONTROLLING LAW; MEMBERS OF CITY NOT LIABLE. All
covenants, stipulations, obligations and agreements of the City contained in this Resolution and the
Notes shall be covenants, stipulations, obligations and agreements of the City to the full extent
authorized by the Act and provided by the Constitution and laws of the State of Florida. No
covenant, stipulation, obligation or agreement contained in this Resolution or the Notes shall be a
covenant, stipulation, obligation or agreement of any present or future member, agent, officer or
employee of the City or the Governing Body of the City in his or her individual capacity,and neither
the members or officers of the Governing Body of the City nor any official executing the Notes shall
be liable personally on the Notes or shall be subject to any personal liability or accountability by
reason of the issuance or the execution of the Notes by the City or such members thereof.
SECTION 23. REPEAL OF INCONSISTENT RESOLUTIONS.All resolutions or parts
thereof in conflict with this Resolution are repealed to the extent of such conflict.
SECTION 24. EFFECTIVE DATE. This Resolution shall be in force and take effect
immediately upon its passage and adoption.
PASSED AND ADOPTED THIS 26TH D F MARCH 2O02.
ROB RT CHUNN, JR.
MAYOR-COMMISSIONER
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ATT ST: ROLL CALL:
COMMISSIONER BERTINO-YES
COMMISSIONER MCELYEA-V=f�& ABSENT
CHARLENE JO ON COMMISSIONER MIKES-YES
CITY CLERK VICE-MAYOR FLURY-YES
MAYOR CHUNN-YES
APPROVED AS TO FO
AND CORRECTNESS
BY: >
THOM, S . Tt § R
CITY'XTTORNEY
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EXHIBIT "A"
FORM OF SERIES 2000A NOTE
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REGISTERED REGISTERED
No. R- 1 S 2,350,000.00
UNITED STATES OF AMERICA
STATE OF FLORIDA
CITY OF DANIA BEACH
PROMISSORY NOTE, SERIES 2002A
Interest Rate: Maturity Date: Dated Date:
4.33% December 1, 2012 March 27, 2002
REGISTERED OWNER: SUNTRUST BANK
PRINCIPAL AMOUNT: TWO MILLION, THREE HUNDRED FIFTY
THOUSAND DOLLARS
KNOW ALL MEN BY THESE PRESENTS, that the City of Dania Beach, Florida, a
municipal corporation of the State of Florida (hereinafter called the "City") for value received,
hereby promises to pay to the Registered Owner identified above, or to registered assigns or legal
representatives, but solely from the revenues hereinafter mentioned, on the dates hereinafter
provided, the Principal Amount identified above,and to pay,solely from such revenues,interest on
the Principal Amount remaining unpaid from time to time, at the interest rate per annum identified
above(the"Bond Rate"),until the entire Principal Amount has been repaid.Principal of and interest
on this Note will be paid by bank wire, check, draft or bank transfer delivered to the Registered
Owner hereof at his address as it appears on the registration books of the City at the close of business
on the fifth Business Day(as defined in the hereinafter described Resolution),next preceding each
interest payment date (the "Record Date").
Interest on this Note shall be calculated on the basis of a 360 day year and will be paid in
arrears for the actual number of days elapsed.
Payments of principal of and accrued interest on this Note will be due in 120 equal
installments on the 1 st day of each month, beginning January 1, 2003.
Each date when principal and/or interest on this Note is due is a 'Payment Date." If any
Payment Date is not a Business Day,the payment otherwise due on such Payment Date shall be due
on the preceding Business Day.
Any payment of principal hereof or interest hereon not paid when due shall bear interest from
the due date until paid at the maximum rate permitted by law.
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This Note is the entire authorized issue of notes in the aggregate principal amount of
• S2,350,000, issued to finance the Series 2002A Project(as defined in the Resolution),pursuant to the
authority of and in full compliance with the Constitution and laws of the State of Florida, including
particularly Article VIII, Section 2 of the Constitution of the State of Florida, Chapter 166, Florida
Statutes, the Charter of the City(collectively,the "Act"), and Resolution No. 2002-_, adopted by
the City Commission of the City on March 26, 2002 (the "Resolution").
This Note and the interest hereon are secured by and are payable from a prior lien upon and
pledge of the Franchise Fees(as defined in the Resolution),in the manner and to the extent provided
in the Resolution. Such lien and pledge are on a parity with the lien and pledge of the Franchise Fees
in favor of the holder of the City's $650,000 Promissory Note, Series 2002B, which is being issued
simultaneous with this Note. Reference is hereby made to the Resolution for the provisions, among
others, relating to the terms and security for the Note,the custody and application of the proceeds of
the Note, the rights and remedies,'of the Registered Owner of the Note, and the extent of and
limitations on the City's rights, duties and obligations, to all of which provisions the Registered
Owner hereof for himself and his successors in interest assents by acceptance of this Note. All terms
used herein in capitalized form; unless otherwise defined herein, shall have the meanings ascribed
thereto in the Resolution.
For purposes of this Note, the following definitions shall apply:
(1) "Code" means the Internal Revenue Code of 1986, as amended;
® (2) "Cost of Funds" means 100 multiplied by a fraction, the numerator of which
is equal to the total interest expense of SunTrust for its immediately preceding tax
year and the denominator of which is equal to the average total assets of SunTrust for such
tax year, but not to exceed-the cost of Fed Funds.
(3) "Fully Taxable Equivalent" means the Bond Rate multiplied by 1.65,
expressed as a number and not as a percentage.
(4) "Maximum Corporate Tax Rate"means the maximum Federal income tax rate
applicable to corporations, presently 35%.
(5) "Preference Reduction Rate"means the percentage reduction to be applied to
the amount allowable as a deduction under Chapter I of the Code with respect to any
financial institution preference item (as such term is defined in Section 291(e)of the Code),
presently 20%. If this Note is not or ceases to be a "qualified tax-exempt obligation" as
defined in Section 265(b) of the Code, the Preference Reduction Rate shall be deemed to
increase from twenty percent (20%) to one hundred percent (100%).
(7) "TEFRA Adjustment" means an adjustment equal to the product of the Cost
of Funds multiplied by the applicable Maximum Corporate Tax Rate multiplied by the
applicable Preference Reduction Rate.
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If for any reason the interest on this Note becomes includable in the gross income of the
holder of this Note for Federal income tax purposes (an "Event of Taxability"),this Note shall bear
interest from the earliest effective date of such Event of Taxability at a rate per annum equal to the
interest rate otherwise borne by this Note multiplied by 1.65. In addition to the foregoing, the City
shall pay any additions to tax, penalties and interest, and any arrears in interest imposed upon the
holder of this Note on account of an Event of Taxability. All such additional interest, additions to
tax and penalties shall be paid on the next succeeding Payment Date following the date the holder
was advised of such Event of Taxability.
No Event of Taxability shall be deemed to occur unless the City has been given timely
written notice of such occurrence by the holder of this Note and, to the extent permitted by law, an
opportunity to participate in and seek,at the City's own expense,a final administrative determination
by the Internal Revenue Service or determination by a court of competent jurisdiction(from which
no further right of appeal exists) as to the occurrence of such Event of Taxability;provided that the
City, at its own expense,delivers to the holder of this Note an opinion of bond counsel acceptable to
such holder to the effect that such appeal or action for judicial or administrative review is not without
merit and there is a reasonable possibility that the judgment, order, ruling or decision from which
such appeal or action for judicial or administrative review is taken will be reversed, vacated or
otherwise set aside.
The interest rate borne by this Note shall also be adjusted automatically as of the effective
date of any change in the Maximum Corporate Tax Rate or in the Preference Reduction Rate,to the
product obtained by multiplying the Bond Rate by a fraction, the numerator of which is equal to the
sum of(i) the product of the Fully Taxable Equivalent times 1 minus the Maximum Corporate Tax
Rate in effect as of the date of adjustment,plus(ii)the TEFRA Adjustment in effect as of the date of
adjustment, and the denominator of which is equal to the sum of(i)the product of the Fully Taxable
Equivalent times 0.65, plus (ii) the TEFRA Adjustment in effect on the date of closing of the Note.
A certificate of the Holder as to any such additional amount or amounts, in the absence of
manifest error, shall be final and conclusive. In determining such amount, the Holder may use any
reasonable averaging and attribution methods.
Upon the occurrence of an Event of Default (as defined in the Resolution), the Holder may
declare the entire outstanding balance due hereon to be immediately due and payable(but only from
the Franchise Fees), and in any such acceleration the City shall also be obligated to pay all costs of
collection and enforcement thereof, including such fees as maybe incurred on appeal or incurred in
any bankruptcy or insolvency proceeding.
THIS NOTE SHALL NOT BE DEEMED TO CONSTITUTE A GENERAL DEBT OR A
PLEDGE OF THE FAITH AND CREDIT.OF THE CITY, OR A DEBT OR PLEDGE OF THE
FAITH AND CREDIT OF THE STATE OF FLORIDA OR ANY POLITICAL SUBDIVISION
THEREOF WITHIN THE MEANING OF ANY CONSTITUTIONAL, LEGISLATIVE OR
;014536.0021/W8003901_1/3/25/02 11:43 AM}
3
CHARTER PROVISION OR LIMITATION, AND IT IS EXPRESSLY AGREED BY THE
® REGISTERED OWNER OF THIS NOTE THAT SUCH REGISTERED OWNER SHALL NEVER
HAVE THE RIGHT, DIRECTLY OR INDIRECTLY, TO REQUIRE OR COMPEL THE
EXERCISE OF THE AD VALOREM TAXING POWER OF THE CITY OR ANY OTHER
POLITICAL SUBDIVISION OF THE STATE OF FLORIDA OR TAXATION IN ANY FORM ON
ANY REAL OR PERSONAL PROPERTY FOR THE PAYMENT OF THE PRINCIPAL OF,
PREMIUM, IF ANY, AND INTEREST ON THIS NOTE OR FOR THE PAYMENT OF ANY
OTHER AMOUNTS PROVIDED FOR IN THE RESOLUTION.
This Note shall be and have all the qualities and incidents of negotiable instruments under the
law merchant and the Uniform Commercial Code of the State of Florida,subject to the provisions for
registration of transfer contained herein and in the Resolution.
It is further agreed between:the City and the Registered Owner of this Notethat this Note and
the indebtedness evidenced hereby shall not constitute a lien upon any real or tangible personal
property of or in the City. Neither the members of the governing body of the City nor any person
executing the Note shall be liable-personally on the Note by reason of its issuance.
The principal amount of this Note may be prepaid,in whole or in part, on any payment date,
at any time provided that the City pays a prepayment premium to SunTrust Bank (the 'Bank") and
provides the Bank with at least one week written notice of intended prepayment. The "Prepayment
Premium" shall be the amount, as of the date of each event of prepayment, equal to a lump sum
prepayment charge together with accrued and unpaid interest applicable to the prepaid amount plus
all other amounts owing hereunder. The Prepayment Premium shall be determined by the Bank as
follows:
The Prepayment Premium shall be the sum of(i)all out-of-pocket costs incurred by the Bank
due to prepayment, plus (ii) a prepayment processing fee of $100.00, plus (iii) the Economic
Revenue Loss which may be incurred by the Bank as a result of prepayment.
The Economic Revenue Loss, which shall be calculated for each prepayment, is defined as
the present value of the difference between the Original Interest Rate Swap Rate minus the Current
Interest Rate Swap Rate (expressed in decimals), times the amount prepaid and then divided by
twelve(12),discounted at the Current Interest Rate Swap Rate for the remaining term to maturity of
the loan,expressed in months. The Economic Revenue Loss shall be determined by the Bank in good
faith, and the result, absent manifest error, shall be conclusive.
If the Current Interest Rate Swap Rate is equal to or greater than the Original Interest Rate
Swap Rate, there is no Economic Revenue Loss.In this event, the prepayment charge shall be the
sum of(i) out-of-pocket costs and (ii) a prepayment processing fee of$100.00.
The Original Interest Rate Swap Rate is defined as the rate published by the Federal Reserve
Board of Governors in the Federal Reserve H.15 Statistical Release as of March 27,2002
1014536.0021/W8003901_1/3/25/02 11:43 AM}
4
and with a maturity corresponding to the original term of this Note. Should no maturity exist that
• corresponds to the original term of this Note, then the maturity is calculated on a straight-line
interpolation between the immediately preceding posted rate and the immediately following posted
rate.
The Current Interest Rate Swap Rate is defined as the rate published by the Federal Reserve
` Board of Governors in the Federal Reserve H.15 Statistical Release as of two Bank business days
prior to the prepayment date, and with a maturity corresponding to the maturity date of this Note.
Should no maturity exist that corresponds to the maturity date of this Note, then the maturity is
calculated on a straight-line interpolation between the immediately preceding posted rate and the
immediately following posted rate. For remaining terms of one year or less, the rate will be
calculated based on LIBOR as posted by the British Bankers Association which appears on
Bloomberg reporting service, or such similar service as determined by the Bank,two Bank business
days prior to the prepayment date.
Should the Federal Reserve no longer release rates for Interest Rate Swaps under the Federal
Reserve H.15 Statistical Release, the Bank may substitute this index with another similar index.
A Prepayment is the amount of a future scheduled principal installment which is being
prepaid. If more than one future principal installment will be prepaid at the same time, then the
Economic Revenue Loss shall be the sum of the several Economic Revenue Loss calculations for
each prepaid principal installment.
• Partial prepayments shall be applied to installments of principal in the inverse order of their
maturity. Prepayments of this Note may not be re-borrowed.Partial prepayments shall not lower the
amounts, or postpone the due dates, of any installments of principal and interest due hereunder,but
shall be applied to such installments in the inverse order of their maturities.
This Note may be assigned by the owner of this Note,or any assignee or successor-in-interest
thereto. Such assignment shall only be effective, and the City obligated to pay such assignee, upon
delivery to the Clerk at 100 West Dania Beach Boulevard, Dania Beach, Florida 33304 (or such
future address as may serve as the address of the City) of a written instrument or instruments of
assignment in the form provided herein, duly executed by the owner of this Note or by his
attorney-in-fact or legal representative,containing written instructions as to the details of assignment
of this Note, along with the social security number or federal employer identification number of such
assignee. In all cases of an assignment of this Note the City shall at the earliest practical time in
accordance with the provisions of the Resolution enter the change of ownership in the registration
books; provided,however, the written notice of assignment must be received by the Clerk no later
than the close of business on the fifth Business Day prior to a Payment Date in-order to carry the
right to receive the interest and principal payment due on such Payment Date. The City may charge
the registered owner of the Note for the registration of every such assignment of the Note an amount
sufficient to reimburse it for any tax, fee or any other governmental charge required to be paid,
except for any such governmental charge imposed by the City,with respect to the registration of such
1014536.0021/W8003901_1/3/25/02 11:43 AM}
5
assignment, and may require that such amounts be paid before any such assignment of the Note shall
be effective.
It is hereby certified and recited that all acts, conditions and things required to exist, to
happen, and to be performed precedent to and in the issuance of this Note exist, have happened and
have been performed in regular and due form and time as required by the laws and Constitution of
the State of Florida applicable hereto, and that the issuance of the Note does not violate any
constitutional or statutory limitation or provision.
THE REGISTERED OWNER, BY ITS ACCEPTANCE OF THIS NOTE, AND THE
CITY, BY ITS ACCEPTANCE OF THE PROCEEDS OF THE NOTE, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN
RESPECT TO ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS NOTE, THE RESOLUTION OR ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE
OF CONDUCT,COURSE OR DEALING, STATEMENTS(WHETHER VERBAL OR WRITTEN)
OR ACTIONS OF EITHER PARTY.
IN WITNESS WHEREOF, the City of Dania Beach, Florida has issued this Note and has
caused the same to be executed by the manual signature of the Clerk and the City Manager, and
attested by the manual signature of the Mayor and its corporate seal or a facsimile thereof to be
affixed or reproduced hereon, all as of the 27th day of March, 2002.
CITY OF DANIA BEACH, FLORIDA
(SEAL)
City Clerk
City Manager
ATTEST:
Mayor
-� {014536.00211AV8003901 1/3/25/02 11:43AM}
6
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
the within Note and all rights
thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within Note in the books
kept by the City for the registration thereof, with full power of substitution in the premises.
Dated:
NOTICE: The signature of this
SOCIAL SECURITY NUMBER OR assignment must correspond with
FEDERAL IDENTIFICATION NUMBER the name as it appears upon the
OF ASSIGNEE within Note in every particular,
without enlargement or alteration
or any change whatever.
[Form of Abbreviations]
The following abbreviations, when used in the inscription on the face of the within Note,
shall be construed as though they were written out in full according to the applicable laws or
regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN- as joint tenants with the right of survivorship and not as tenants in common
UNIFORM TRANS MIN ACT - Custodian for (Cust.) (Minor) under Uniform
Transfers to Minors Act of
(State)
Additional abbreviations may also be used
though not in the above list.
1014536.0021/W8003901 1/3/25/02 11:43 AM}
7
EXHIBIT "B"
s
FORM OF SERIES 2002B NOTE
® 1
{014536.0021/W8003900_1/3/25/02 04:04 PM}
REGISTERED REGISTERED
No. R- 1 $ 650,000.00
UNITED STATES OF AMERICA
STATE OF FLORIDA
CITY OF DANIA BEACH
` PROMISSORY NOTE,.SERIES 2002B
Interest Rate: Maturity Date: Dated Date:
6.54% December 1, 2012 March 27, 2002
REGISTERED OWNER: SUNTRUST BANK
PRINCIPAL AMOUNT:, SIX HUNDRED FIFTY THOUSAND DOLLARS
KNOW ALL MEN BY THESE PRESENTS, that the City of Dania Beach, Florida, a
municipal corporation of the State of Florida (hereinafter called the "City") for value received;
hereby promises to pay to the Registered Owner identified above, or to registered assigns or legal
representatives, but solely from the revenues hereinafter mentioned, on the dates hereinafter
provided, the Principal Amount identified above, and to pay,solely from such revenues, interest on
the Principal Amount remaining unpaid from time to time, at the interest rate per annum identified
• above(the"Bond Rate"),until the entire Principal Amount has been repaid.Principal of and interest
on this Note will be paid by bank wire, check, draft or bank transfer delivered to the Registered
Owner hereof at his address as it appears on the registration books of the City at the close of business
on the fifth Business Day(as defined in the hereinafter described Resolution), next preceding each
interest payment date (the "Record Date").
Interest on this Note shall be calculated on the basis of a 360 day year and will be paid in
arrears for the actual number of days elapsed.
Payments of principal of and accrued interest on this Note will be due in 120 equal
installments on the Ist day of each month, beginning January 1, 2003.
Each date when principal and/or interest on this Note is due is a "Payment Date." If any
Payment Date is not a Business Day,the payment otherwise due on such Payment Date shall be due
on the preceding Business Day.
Any payment of principal hereof or interest hereon not paid when due shall bear interest from
the due date until paid at the maximum rate permitted by law.
This Note is the entire authorized issue of notes in the aggregate principal amount of
$650,000, issued to finance the Series 2002B Project(as defined in the Resolution),pursuant to the
1014536.0021/W8003902 1/3/25/02 11:43 AM}
1
authority of and in full.compliance with the Constitution and laws of the State of Florida, including
particularly Article VIII, Section 2 of the Constitution of the State of Florida, Chapter 166, Florida
Statutes, the Charter of the City(collectively,the"Act"), and Resolution No. 2002-_, adopted by
the City Commission of the City on March 26, 2002 (the "Resolution").
This Note and the interest hereon are secured by and are payable from a prior lien upon and
` pledge of the Franchise Fees(as defined in the Resolution),in the manner and to the extent provided
in the Resolution. Such lien and pledge are on a parity with the lien and pledge of the Franchise Fees
in favor of the holder of the City's$2,350,000 Promissory Note, Series 2002A,which is being issued
simultaneous with this Note. Reference is hereby made to the Resolution for the provisions, among
others,relating to the terms and security for the Note,the custody and application of the proceeds of
the Note, the rights and remedies of the Registered Owner of the Note, and the extent of and
limitations on the City's rights, duties and obligations, to all of which provisions the Registered
Owner hereof for himself and his successors-in interest assents by acceptance of this Note. All terms
used herein in.capitalized.form, unless otherwise defined herein, shall have the meanings ascribed
thereto in the Resolution.
For purposes of this Note;,the following definitions shall apply:
(1) "Code" means the Internal Revenue Code of 1986, as amended;
(2) "Cost of Funds" means 100 multiplied by a fraction, the numerator of which
is equal to the total interest expense of SunTrust for its immediately preceding tax
year and the denominator of which is equal to the average total assets of SunTrust for such
tax year, but not to exceed the cost of Fed Funds.
(3) "Maximum Corporate Tax Rate"means the maximum Federal income tax rate
applicable to corporations, presently 35%.
The interest rate borne by this Note shall be adjusted automatically as of the effective date of
any change in the Maximum Corporate Tax Rate, to the product obtained by multiplying the Bond
Rate by a fraction, the numerator of which is equal to 1 minus the Maximum Corporate Tax Rate in
effect as of the date of adjustment, and the denominator of which is equal 0.65.
A certificate of the Holder as to any such additional amount or amounts, in the absence of
manifest error, shall be final and conclusive. In determining such amount, the Holder may use any
reasonable averaging and attribution methods.
Upon the occurrence of an Event of Default (as defined in the Resolution), the Holder may
declare the entire outstanding balance due hereon to be immediately due and payable(but only from
the Franchise Fees), and in any such acceleration the City shall also be obligated to pay all costs of
collection and enforcement thereof, including such fees as may be incurred on appeal or incurred in
any bankruptcy or insolvency proceeding.
1'014536.0021/W8003902 1/3/25/02 11:43 AM}
2
THIS NOTE SHALL NOT BE DEEMED TO CONSTITUTE A GENERAL DEBT OR A
PLEDGE OF THE FAITH AND CREDIT OF THE CITY, OR A DEBT OR PLEDGE OF THE
FAITH AND CREDIT OF THE STATE OF FLORIDA OR ANY POLITICAL SUBDIVISION
THEREOF WITHIN THE MEANING OF ANY CONSTITUTIONAL, LEGISLATIVE OR
CHARTER PROVISION OR LIMITATION, AND IT IS EXPRESSLY AGREED BY THE
REGISTERED OWNER OF THIS NOTE THAT SUCH REGISTERED OWNER SHALL NEVER
HAVE THE RIGHT, DIRECTLY OR INDIRECTLY, TO REQUIRE OR COMPEL THE
EXERCISE OF THE AD VALOREM TAXING POWER OF THE CITY OR ANY OTHER
POLITICAL SUBDIVISION OF THE STATE OF FLORIDA OR TAXATION IN ANY FORM ON
ANY REAL OR.PERSONAL PROPERTY FOR THE PAYMENT OF THE PRINCIPAL OF,
PREMIUM, IF ANY, AND INTEREST ON THIS NOTE OR FOR THE PAYMENT OF ANY
OTHER AMOUNTS PROVIDED FOR IN THE RESOLUTION.
This Note shall be and have all the qualities and incidents of negotiable instruments under the
law merchant and the Uniform Commercial Code of the State of Florida,subject to the provisions for
registration of transfer contained herein and in the Resolution.
It is further agreed between the City and the Registered Owner of this Note that this Note and
the indebtedness evidenced hereby shall not constitute a lien upon any real or tangible personal
property of or in the City. Neither the members of the governing body of the City nor any person
executing the Note shall be liable personally on the Note by reason of its issuance.
The principal amount of this Note may be prepaid,in whole or in part,on any payment date,
at any time provided that the City pays a prepayment premium to SunTrust Bank (the 'Bank") and
provides the Bank with at least one week written notice of intended prepayment. The "Prepayment
Premium" shall be the amount, as of the date of each event of prepayment, equal to a lump sum
prepayment charge together with accrued and unpaid interest applicable to the prepaid amount plus
all other amounts owing hereunder. The Prepayment Premium shall be determined by the Bank as
follows:
The Prepayment Premium shall be the sum of(i)all out-of-pocket costs incurred by the Bank
due to prepayment, plus (ii) a prepayment processing fee of $100.00, plus (Ili) the Economic
Revenue Loss which may be incurred by the Bank as a result of prepayment.
The Economic Revenue Loss, which shall be calculated for each prepayment, is defined as
the present value of the difference between the Original Interest Rate Swap Rate minus the Current
Interest Rate Swap Rate (expressed in decimals), times the amount prepaid and then divided by
twelve(12),discounted at the Current Interest Rate Swap Rate for the remaining term to maturity of
the loan, expressed in months. The Economic Revenue Loss shall be determined by the Bank in good
faith, and the result, absent manifest error, shall be conclusive.
{014536.0021/W8003902_1/3/25/02 11:43 ANI}
3
If the Current Interest Rate Swap Rate is equal to or greater than the Original Interest Rate
Swap Rate, there is no Economic Revenue Loss. In this event, the prepayment charge shall be the
sum of(1) out-of-pocket costs and (ii) a prepayment processing fee of$100.00.
The Original Interest Rate Swap Rate is defined as the rate published by the Federal Reserve
Board of Governors in the Federal Reserve H.15 Statistical Release as of March 27,2002( —%),
` and with a maturity corresponding to the original term of this Note. Should no maturity exist that
corresponds to the original term of this Note, then the maturity is calculated on a straight-line
interpolation between the immediately preceding posted rate and the immediately following posted
rate.
The Current Interest.Rate Swap Rate is defined as the rate published by the Federal Reserve
Board of Governors in the Federal Reserve H.15 Statistical Release as of two Bank business days
prior to the prepayment date, and with a maturity corresponding to the maturity date of this Note.
Should no maturity exist that corresponds to the maturity date of this Note, then the maturity is
calculated on a straight-line interpolation between the immediately preceding posted rate and the
immediately following posted rate. For remaining terms of one year or less, the rate will be
calculated based on LIBOR as posted by the British Bankers Association which appears on
Bloomberg reporting service, or such similar service as determined by the Bank,two Bank business
days prior to the prepayment date.
Should the Federal Reserve no longer release rates for Interest Rate Swaps under the Federal
Reserve H.15 Statistical Release, the Bank may substitute this index with another similar index.
A Prepayment is the amount of a future scheduled installment which is being
principal g
prepaid. If more than one future principal installment will be prepaid at the same time, then the
Economic Revenue Loss shall be the sum of the several Economic Revenue Loss calculations for
each prepaid principal installment.
Partial prepayments shall be applied to installments of principal in the inverse order of their
maturity.Prepayments of this Note may not be re-borrowed. Partial prepayments shall not lower the
amounts, or postpone the due dates, of any installments of principal and interest due hereunder,but
shall be applied to such installments in the inverse order of their maturities.
This Note may be assigned by the owner of this Note,or any assignee or successor-in-interest
thereto. Such assignment shall only be effective, and the City obligated to pay such assignee, upon
delivery to the Clerk at 100 West Dania Beach Boulevard, Dania Beach, Florida 33304 (or such
future address as may serve as the address of the City) of a written instrument or instruments of
assignment in the form provided herein, duly executed by the owner of this Note or by his
attorney-in-fact or legal representative, containing written instructions as to the details of assignment
of this Note, along with the social security number or federal employer identification number of such
assignee. In all cases of an assignment of this Note the City shall at the earliest practical time in
accordance with the provisions of the Resolution enter the change of ownership in the registration
{014536.0021/W8003902 1/3/25/02 11:43 AM}
4
books;provided, however, the written notice of assignment must be received by the Clerk no later
than the close of business on the fifth Business Day prior to a Payment Date in order to carry the
right to receive the interest and principal payment due on such Payment Date. The City may charge
the registered owner of the Note for the registration of every such assignment of the Note an amount
sufficient to reimburse it for any tax, fee or any other governmental charge required to be paid,
except for any such governmental charge imposed by the City,with respect to the registration of such
assignment, and may require that such amounts be paid before any such assignment of the Note shall
be effective.
It is hereby certified and recited that all acts, conditions and things required to exist, to
happen, and.to be performed precedent to and in the issuance of this Note exist,have happened and
have been performed in regular and due.form and time as required by the laws and Constitution of
the State of Florida applicable hereto, and that the issuance of the Note does not violate any
constitutional or statutory,limitation or provision.
THE REGISTERED OWNER, BY ITS ACCEPTANCE OF THIS NOTE, AND THE
CITY, BY ITS ACCEPTANCE OF THE PROCEEDS OF THE NOTE, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN
RESPECT TO ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS NOTE, THE RESOLUTION OR ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE
OF CONDUCT,COURSE OR DEALING,STATEMENTS(WHETHER VERBAL OR WRITTEN)
OR ACTIONS OF EITHER PARTY.
• IN WITNESS WHEREOF the Cityof Dania B Florida
each, has issued this Note and has
caused the same to be executed by the manual signature of the Clerk and the City Manager, and
attested by the manual signature of the Mayor and its corporate seal or a facsimile thereof to be
affixed or reproduced hereon, all as of the 27th day of March, 2002.
CITY OF DANIA BEACH, FLORIDA
(SEAL)
City Clerk
City Manager
ATTEST:
Mayor
1014536.0021/W8003902 1/3/25/02 l 1:43 AM}
5
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
the within Note and all rights
thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within Note in the books
kept by the City for the registration thereof, with full power of substitution in the premises.
Dated:
NOTICE: The signature of this
SOCIAL SECURITY NUMBER OR assignment must correspond with
FEDERAL IDENTIFICATION NUMBER the name as it appears upon the
OF ASSIGNEE within Note in every particular,
without enlargement or alteration
or any change whatever.
[Form of Abbreviations]
The following abbreviations, when used in the inscription on the face of the within Note,
shall be construed as though they were written out in full according to the applicable laws or
regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with the right of survivorship and not as tenants in common
UNIFORM TRANS MIN ACT - Custodian for (Cust.) (Minor) under Uniform
Transfers to Minors Act of
(State)
Additional abbreviations may also be used
though not in the above list.
;014536.0021/W8003902 1/3/25/02 11:43AMt
� 6
EXHIBIT "C"
SERIES 2002A PROJECT
{014536.0021/W8003900_1/3/25/02 04:04 PM}
City of Dania FY02 Debt Financing Projects
Tax Exempt Portion [2002A]
$ 300,000 City Match for 2 FRDAP Grants
>$150,000 each for CW Thomas and Frost Parks
95,000 City Match for Griffin Marine Park FIND grant
300,000 Swim Central swimming pool grant 1st quarter match
448,844 Other Park Improvements
250,000 PW Facility improvements
250,000 Police "803" project
100,000 Street Closing project, Phase 1
113,000 25th Year CDBG
50,000 Street Lighting, Phase 1
$ 1,906,844 subtotal of capital improvement projects
443,156 Payment to FPL as part of settlement
$ 2,350,000 Total, Tax Exempt Portion
Taxable Portion [200213]
$ 650,000 Pier Restaurant Project
$ 3,000,000 Total, Tax Exempt plus Taxable Debt Financing
EXHIBIT "D"
COMMITMENT LETTER
{014536.0021/W8003900 1/3/25/02 04:04 PM}
�. I vu ��V _ r. uu1
Proposal for Financing
For The City of Dania .Beach
March 20,2002
$3,000,000
Contact Information:
SunTrust Bank South Florida.
501 East Las Olas Boulevard
Fort Lauderdale, FL 33301
Contact person: W. Dane Sheldon
Phone: (954) 765-7605
Fax: (954) 765-7240
Conditions: Please see attached commitment Ietter.
*UNTRUST
March 20, 2002
SUBMITTED TO:
City of Dania Beach
100 W. Dania Beach Blvd.
Dania Beach, FL 33004
Attn.: Dave; Keller, Finance Director
Dear Dave,
SunTrust Bank, South Florida(Bank)is pleased to submit the following commitment to lend to The
City of Dania Beach, F1. (Borrower) under the following terms and conditions:
1. F ci it
A) $2,350,000 Term Loan
The issue is anticipated to be a "Qualified Tax-Exempt Obligation"for purposes of section
265(b)(3) of the Internal Revenue Code of 1986.
B) S650,000 Term Loan--Fully Taxable
2. Security:
A&B) The Loan will be for the City of Dania Beach. Florida and will be repaid from and
secured by a pledge of and lien on all revenues from the City's Electric Franchise Fees.
Current and future debt issues may carry a parity lien on Electric Franchise Fee revenues
provided 1) the aggregate Electric Franchise Fees collected over the last fiscal year is
sufficient to cover the highest combined annual debt service on all existing and proposed
debt secured by Electric Franchise Fees at least 1.5X; and 2) all payments on the existing
indebtedness are current.
3. Interest Rate:
A .fixed rate of A) 4.33% and B) 6.54% held for 15 days from the date of this commitment.
If the City closes the loan after April 5, 2002, the rate will be based on: the seven year
SWAP Ask rate as quoted by Bloomberg plus A) 85 basis points and B) same as A times
1.51, as reported three(3) days before the close of the loan. The rate will be set three(3)days
before closing and fixed for the term of the loan. The loan must close on or before April 15,
2002.
4. Re a ment Terms:
Principal and interest will be due monthly beginning on January 1, 2003 through December
1, 2012. Amortization wiI] be over ten (10) years,
5• Underwriting Fees:
None
6• B Counse Le al Fee:
$5,000.00 to be paid by Borrower ($6,000 if two separate bonds are required.)
7• N-T ose:
The proceeds of the loan shall be used for various capital projects. Breakout of use of the
Proceeds to be supplied and accepted by the Bank at its sole discretion.
8• re a,_yme1
Prepayment fee will apply.
9• I7isb semenr of Loan oceeds shall be within the control of the Borrower provided,
however, that the Borrower shall not apply any of the proceeds of the loan for a purpose
other than as set forth above,
10, Interest shall be calcu ted on a 301360 basis.
® I 1• ualifie Tax-Lxe t Obli anon" shall have the on -
of the Internal Revenue Code. The obligation must qualify for the Preference Reduction Rate
of 20% as defined below.
The fixed interest rate shall be adjusted, as set forth below, in the event of a change in the
Qualified Tax-Exempt status of the obligation.
Interest Rate if Loan Becomes Taxable. If the loan is deemed a "Qualified Tax-Exempt
Obligation"whereby the interest earned on the loan is excluded from the cross income of the
Bank when determining Federal and State tax liability,and the loan is issued at a tax exempt
rate but later the interest on the loan becomes taxable (i.e., ceases to be a "Qualified Tax-
Exempt Obligation") for whatever reason, then the loan will bear interest from the earliest
effective date as of which interest payable on the loan is includable in the gross income of
the Bank at a Fixed Rate per annum equal to the Fixed Rate times 1,54(the"Taxable Rate").
The Borrower shall also pay any additions to tax,penalties,and any interest on the loan and
its gross income for Federal Income Tax purposes,and any arrears in interest resulting from
a determination of taxability, Any penalties in the form of interest or otherwise shall be paid
by the Borrower on the next succeeding interest payment date.
12. Arbitra-c Responsibility The Borrower shall assume whatever responsibility and take
whatever action is necessary to assure that the loan will not constitute an "Arbitrage Loan"
under the provision of Section 148 of the Code. Additionally,the Borrower shall covenant
to comply with any and all rebate requirements contained in Section 148 of the Code.
I erest Rate Limitation. t Borrower shall take whatever action is necessary
13. n on If required, he
in order to comply with the provisions of Section 21 5.84, Florida Statutes, relating to
maximum rate of interest including, but not limited to, the filing of a request with the State
Board of Administration for authorization of the interest rate provided herein,if such interest
rate is in excess of the maximum rate.
14. The Borrower shall comply with and agree to such other covenants, terms, and conditions,
that may be reasonably,required by the Bank and its counsel and are customary in municipal
financing.of this.nature. These covenants would include, but not be limited to, covenants
regarding compliance with laws and regulations,the submission of audited financial data to
the Bank in a.timely,manner; events of default including faihue to make payments, failure
to perform any covenant,and the filing of bankruptcy by the Borrower;and remedies in the
event of default, including.acceleration.
15. It is understood:that the bid set forth herein is conditioned upon the accuracy of information
provided to,the-.Bank bylithe Borrower and,the:continued.financial strength:ofthe.Borrowen!
Any misrepresentation or false statement of material fashion made by the Borrower to induce
this bid or any material adverse change in the financial condition of the Borrower will be
sufficient cause for the Bank to terminate this proposal,
16. The Bank will require an opinion Prom a qualified Counsel regarding the bank qualified,tax-
exempt status of the notes, validity of issuance, enforceability of documents, and other
pertinent issues. This commitment is subject to all documentation for the loan
contemplated by this commitment being reviewed and accepted in form and substance
by the Bank and its Counsel.
17. This letter constitutes a commitment on the part of the bank:to lend and does not require any
additional internal approvals by the bank.
18. WAIVER: THE MAKER, BY EXECUTION HEREOF, AND THE LENDER, BY
ACCEPTANCE HEREOF, MUTUALLY AND WILLINGLY WAIVE THE RIGHT
TO A TRIAL BY JURY OF ANY AND ALL CLAIMS MADE BETWEEN THEM
WHETHER NOW EXISTING OR ARISING IN THE FUTURE, INCLUDING,
WITHOUT LIMITATION, ANY AND ALL CLAIMS, AND INTERVENOR'S
CLAIMS WHETHER ARISING FROM OR RELATED TO THE NEGOTIATION,
EXECUTION,AND PERFORMANCE OF THE TRANSACTIONS TO WHICH THIS
COMMITMENT RELATES.
THE COMMITMENT LETTER OUTLINES THE GENERAL TERMS AND CONDITIONS OF
THE LENDING AGREEMENT BETWEEN THE CITY OF DANIA BEACH,FL AND
SUNTRUS T BANK, SOUTH FLORIDA, IF THIS OFFER IS NOT ACCEPTED BY THE CITY
COMMISSION ON OR BEFORE APRIL 5, 2002, THE OFFER WILL EXPIRE UNLESS
r
° EXTENDED BY THE BANK. IF ACCEPTED,THE FACILITY MUST CLOSE BY APRIL 15,
2002.
We sincerely appreciate the opportunity to serve The City of Dania Beach and look forward to
hearing from you. Please sign below upon acceptance and return the original to my attention, If you
have any questions please call me at (954) 765-7605.
` Sincerely,
. Dane Sheldon
Vice President
SIGNED AND ACCEPTED THIS ADVn DAY OF tjL�, 2002.
The City of Dania.Beach, Fl.
BY:
AS ITS: i�aY1cY �1�e �