HomeMy WebLinkAboutOrdinance 2002-162
ORDINANCE NO.: 2002- 1 i, ~
AN ORDINANCE OF THE CITY OF SUNNY ISLES BEACH, FLORIDA,
AUTHORIZING THE NEGOTIATIONS OF A LOAN IN AN
AGGREGATE AMOUNT NOT TO EXCEED EIGHTEEN MILLION
FIVE HUNDRED THOUSAND DOLLARS ($18,500,000) FROM THE
FLORIDA MUNICIPAL LOAN COUNCIL; APPROVING THE
EXECUTION AND DELIVERY OF A LOAN AGREEMENT WITH THE
FLORIDA MUNICIPAL LOAN COUNCIL ATTACHED HERETO AS
EXHIBIT "B"; APPROVING THE EXECUTION AND DELIVERY OF A
DISCLOSURE AGREEMENT ATTACHED HERETO AS EXHIBIT "C";
APPROVING THE EXECUTION AND DELIVERY OF A BOND
PURCHASE AGREEMENT ATTACHED HERETO AS EXHIBIT "D";
PROVIDING FOR THE PAYMENT OF ISSUANCE COSTS; PROVIDING
CERTAIN OTHER MATTERS IN CONNECTION WITH THE MAKING
OF SUCH LOAN; PROVIDING THE CITY MANAGER WITH THE
AUTHORITY TO DO ALL THINGS NECESSARY TO EFFECTUATE
THE LOAN AGREEMENT AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, participating governmental units (the "Members") have created the Florida
Municipal Loan Council (the "Council") pursuant to a certain Interlocal Agreement and pursuant
to Chapter 163, Part 1, Florida Statutes, for the purpose of issuing its bonds to make loans to
participating government units for qualified projects; and
WHEREAS, the City of Sunny Isles Beach, Florida (the "Borrower"), a municipal
corporation, is duly created and existing pursuant to the Constitution and laws of the State of
Florida (the "State") and
WHEREAS, the Borrower finds and declares that there is a substantial need for the
financing or refinancing of qualifying projects permitted by Florida Statutes and he State
Constitution; and
WHEREAS, the Borrower possesses the ability to finance such projects on its own, but
has determined that 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 or refinancing of such projects
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 Borrower with
a limited number of governmental units through the Florida Municipal Loan Council may be
obtained through promises to repay loans under the program and supported by a general
covenant to budget and appropriate for such purpose, by a specific pledge of taxes or revenues or
by a general obligation; and
Ordinance Authorizing Negotiation
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WHEREAS, by pooling the respective financial needs of these certain various local
government units, the Borrower 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 benefits being obtained for and inuring to the Borrower; and
WHEREAS, the Council is in the process of issuing its Florida Municipal Loan Council
Revenue Bonds, Series 2002C (the "Bonds") and is seeking to make loans (the "loans") to
governmental units; and
WHEREAS, it is hereby determined that a need exists to borrow funds to finance or
refinance the costs of the acquisition, construction and/or equipping of the qualifying projects set
forth on Exhibit "A" attached hereto (the "Project"); and
WHEREAS, it is determined to be in the best interest of the Borrower to borrow funds
from the Council from the proceeds of the Bonds to finance the cost of the Project.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF SUNNY ISLES BEACH, FLORIDA, as follows:
SECTION 1. AUTHORITY. This Ordinance is enacted pursuant to Chapter 166,
Florida Statutes, and other applicable provisions of law.
SECTION 2. PROJECT. The financing of the acquisition, construction and erection of
the Project is hereby approved.
SECTION 3. NEGOTIATED LOAN. Due to the complicated nature of the financing
and the ability of the Council to access additional markets and for the Borrower to receive the
benefits of lower interest rates and issuance costs, it is hereby determined that it is in the best
interest of the Borrower that the loan to the Borrower be made from the proceeds of the Bonds,
as opposed to the Borrower borrowing funds pursuant to a public sale.
SECTION 4. LOAN AMOUNT. The amount of the Loan of the Borrower evidenced
by the Loan Agreement shall not exceed $18,500,000. Such Loan shall be made at a discount
which shall include a pro-rata portion of costs of issuance incurred by the Council together with
a pro-rata portion of a reserve fund 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 Mayor or City Manager. The
loan shall bear interest at a true interest cost rate not in excess of seven percent (7%), and shall
mature no later than twenty (20) years and shall be in the amount set forth in the Loan
Agreement. The redemption provisions, if any, relating to such Loan shall be as provided in the
Loan Agreement.
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SECTION 5. AUTHORIZED OFFICERS. The Mayor in consultation with the City
Manager or any other appropriate officers of the Borrower are herby authorized and directed to
execute and deliver a Loan Agreement to evidence the Loan, to be entered into by and between
the Borrower and the Council in substantially the form attached hereto as Exhibit "B" with such
changes, insertions and omissions as may be approved by the Mayor in consultation with the
City Manager, the execution thereof being conclusive evidence of such approval.
Further, the Mayor in consultation with the City Manager or any other appropriate
officers of the Borrower are hereby authorized and directed to execute and deliver a Continuing
Disclosure Agreement concerning compliance with existing or proposed rules of the Securities
and Exchange Commission concerning continuing disclosure by the Borrower, to be entered into
by and between the Underwriter, the Borrower and the Council in substantially the form attached
hereto as Exhibit "c" with such changes, insertions and omissions as may be approved by the
Mayor or City Manager, the execution thereof being conclusive evidence of such approval.
SECTION 6. RATES. The City Manager or his designee is hereby authorized to
approve the final rates of interest on the Bonds, and the redemption provisions thereof, if any, on
behalf of the Borrower. The City Manager or his designee is hereby authorized and directed to
execute and deliver a Bond Purchase Contract, to be entered into by and between the
Underwriter, the Borrower and the Council in substantially the form attached hereto as Exhibit
"D" with such changes, insertions and omissions as my be approved by the City Manager, the
execution by the Mayor thereof being conclusive evidence of such approval.
SECTION 7. INDENTURE The Borrower herby acknowledges and consents to the
Bonds being issued pursuant to a Trust Indenture (the "Indenture") to be executed by the Council
and a bank or trust company to be selected by the Council, as Trustee.
SECTION 8. OTHER INSTRUMENTS. The Mayor, the City Manager and the
Finance Director, or any other appropriate officers of the Borrower are hereby authorized and
directed to execute any and all certifications or other instruments or documents required by this
Ordinance, the Loan Agreement, the Trust 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
Borrower. All action taken to date by the officers of the Borrower in furtherance of the issuance
of the Bonds and the making of the Loan is hereby approved, confirmed and ratified.
SECTION 9. 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 10. ADDITIONAL TERMS. Pursuant to subsequent resolution, the
Borrower may establish such additional terms as it may so determine to be in the best interests of
the Borrower.
Ordinance Authorizing Negotiation
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SECTION 11. EFFECTIVE DATE. This Ordinance shall take effect ten (10) days
after enactment on second reading.
PASSED AND ADOPTED on first reading the r day of ~ 2002.
PASSED AND ADOPTED on second reading this \~-tLday of C) t:A,.. ~ , 2002.
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Second on second reading by:
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Motion on second reading by:
VOTE: 6-0
Mayor David Samson
Vice Mayor Danny Iglesias
Commissioner Norman S. Edelcup
Commissioner Gerry Goodman
Commissioner Lila Kauffman
(yes) V
(yes) ---1L
(yes) V
(yes) ;:7
(yes) V
(no)_
(no)_
(no)_
(no)_
(no)_
Ordinance Authorizing Negotiation
of Loan not to Exceed $18,500,000.
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EXHffiIT A
PROJECTS
Capital projects of the City pursuant to the City's Capital Improvement Program,
including, but not limited to, park improvements; streetscape design and improvements; city hall,
police station, municipal pool; public works facility; road resurfacing; and stormwater
improvements.
EXHffiIT B
FORM OF LOAN AGREEMENT
BMO Draft #1
9/13/02
LOAN AGREEMENT
By and Between
FLORIDA MUNICIPAL LOAN COUNCIL
and
[BORROWER]
Dated as of
,2002
FLORIDA MUNICIPAL LOAN COUNCIL
REVENUE BONDS, SERIES 2002C
This Instrument Prepared By:
Grace E. Dunlap, Esq.
Bryant, Miller and Olive, P.A.
101 East Kennedy Boulevard, Suite 2100
Tampa, Florida 33602
and
JoLinda Herring, Esq.
Bryant, Miller and Olive, P.A.
201 South Monroe Street, Suite 500
Tallahassee, Florida 32301
~-
LOAN AGREEMENT
TABLE OF CONTENTS
Page
ARTICLE IDEFINITIONS ................. ....... .... .......... ..... ..... ......3
ARTICLE II REPRESENTATIONS, WARRANTIES
AND COVENANTSOF BORROWER AND COUNCIL
SECTION 2.01. Representations, Warranties and Covenants ......................................................10
SECTION 2.02. Covenants of Borrower ................... ..... ..... ............................................ ........ .....13
ARTICLE III THE LOAN
SECTION 3.01. The Loan ......... '" ....... ......................................... ...................... ........... ............. ..17
SECTION 3.02. Evidence of Loan ...............................................................................................17
ARTICLE IV LOAN TERM AND LOAN CLOSING
REQUIREMENTS
SECTION 4.01. Commencement of Loan Term ............. ............................ ............... ............. .....18
SECTION 4.02. Termination of Loan Term.................................................................. .............. .18
SECTION 4.03. Loan Closing Submissions....... ................ ....... ...................... ........................ .... .18
ARTICLE V LOAN REPAYMENTS
SECTION 5.01. Payment of Basic Payments ...............................................................................20
SECTION 5.02. Payment of Surety Bond Costs. .......... .................. ................................. ........ .....20
SECTION 5.03. Payment of Additional Payments .......................................................................20
SECTION 5.04. Credit for Interest Earnings or Investment Losses and Excess Payments..........21
SECTION 5.05. Obligations of Borrower UnconditionaL....................................................... .....22
SECTION 5.06. Refunding Bonds............... ................... ......... .................................................. ...22
SECTION 5.07. Prepayment....... ...................................... .......................................................... ..22
ARTICLE VIDEFEASANCE....... .......................... ............ .....23
ARTICLE VII ASSIGNMENT AND PAYMENT BY
THIRD PARTIES
SECTION 7.01. Assignment by Council........... ...................... ...................... ............................ ...24
SECTION 7.02. Assignment by Borrower................................................... ................... ......... .....24
SECTION 7.03. Payments by the Bond Insurer............................................................................24
SECTION 7.04. Payments by the Surety Bond Provider.................................................. ......... ...24
ARTICLE VIII EVENTS OF DEFAULT AND
REMEDIES
SECTION 8.01. Events of Default Defined........ ........................................................... ............. ..25
SECTION 8.02. Notice of Default............................ ................................. ............................ .......26
SECTION 8.03. Remedies on Default .............. .......................................... ..................... ....... ......26
SECTION 8.04. [Reserved]......... ..... ...... .......... ............................... ........... ........................ ....... ...27
SECTION 8.05. No Remedy Exclusive; Waiver, Notice .............................................................27
SECTION 8.06. Application of Moneys. ................ ........... .... ...................................... .............. ...27
ARTICLE IX MISCELLANEOUS
SECTION 9.01. Notices....... ....... ....................................................................... ............... ...... ... ...28
SECTION 9.02. Binding Effect ............... ....... .................... ............... .......... ........................... ... ...28
SECTION 9.03. Severability.. .......... ... ..... .... .......... ............................................ .... .................. .....29
SECTION 9.04. Amendments, Changes and Modifications ........................................................29
SECTION 9.05. Execution in Counterparts.......... .............................. ..... ............ ........... ....... ..... ..29
SECTION 9.06. Applicable Law..... ........ .............................................................................. .... ...29
SECTION 9.07. Benefit of Bondholders; Compliance with Indenture.........................................29
SECTION 9.08. Consents and Approvals....................................................................... ............ ..29
SECTION 9.09. Immunity of Officers, Employees and Members of Council and Borrower ......29
SECTION 9.10. Captions.. .......... ......... ... .................. ............... .............................. ........ ........... ...30
SECTION 9.11. No Pecuniary Liability of Council.. ............... ........................ ..................... .... ...30
SECTION 9.12. Payments Due on Holidays ................................................................................30
SECTION 9.13. Calculations... ......... ................................................................... ...................... ...30
SECTION 9.14. Time of Payment .... ........................... ........................................................... ..... .30
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EXHffiIT A
EXHmIT B
EXHffiIT C
EXHffiIT D
EXHffiIT E
USE OF LOAN PROCEEDS
CERTIFIED ORDINANCE OF BORROWER
OPINION OF BORROWER'S COUNSEL
DEBT SERVICE SCHEDULE
FORM OF REQUISITION CERTIFICATE
111
LOAN AGREEMENT
This Loan Agreement (the "Loan Agreement"or the "Agreement") dated as of
2002 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 the [BORROWER] ("the Borrower"), a duly
constituted municipality under the laws of the State of Florida.
WIT N E SSE T H:
WHEREAS, pursuant to the authority ofthe hereinafter defined Act, the Council desires to
loan to the Borrower the amount necessary to enable the Bprrower to finance, refinance or reimburse
the cost ofthe 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 ofthe Council, in accordance with Chapter 163, Part I,
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 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 ,2002, 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 ofthe public welfare ofthe 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 AFlorida Municipal Loan Council Revenue
Bonds, Series 2002C=: (the ABonds=:) 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:
2
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 ofthe Indenture.
"Act" means, collectively, to the extent applicable to the Borrower, Chapter 163, Part I,
Florida Statutes, Chapter 166, Part n, Florida Statutes, and Chapter 125, Part I, 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.
"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 performs the duties of the Mayor; 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 and Olive, P.A., Tampa, Florida or any other
nationally recognized bond counsel.
3
"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 Coun~il Revenue Bonds, Series 2002C issued
pursuant to Article IT 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
2002.
"Borrower" means the governmental unit which is described in the fIrst paragraph and on the
cover page ofthis Loan Agreement and which is borrowing and using the Loan proceeds to finance,
refinance and/or be reimbursed for, all or a portion ofthe 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 ofthe Bonds.
"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 ofthe
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.
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"Council" means the Florida Municipal Loan Council.
"Cost" means "Cost" as defined in the Act.
"Cost ofIssuance 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 Councilor the Borrowers.
"Default" means an event or condition the occurrence of which would, with the lapse oftime
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 Buyer 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 ofthe 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 liquidated or
shall no longer perform the functions of a securities rating agency, AfitclE 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;
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(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 inve~tment 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 , 2002 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 May 1 and November I of each year, commencing November
1,2002.
"Interest Period" means the semi-annual period between Interest Payment Dates.
"Interlocal Act" means Chapter 163, Part I, 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 ofRockledge, 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.
"Loans" means all loans made by the Council under the Indenture to the Borrowers.
6
"Loan Agreement" or "Loan Agreements" means this Loan Agreement and any amendments
and supplements hereto.
"Loan Repayment Date" means , 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 ofthis Loan Agreement, including, without limitation,
Additional Payments.
"Loan Term" means the term provided for in Article N of this Loan Agreement.
"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 ofthe Bond Insurer, by notice to the Trustee.
"Non-Ad Valorem Revenues" means all revenues and taxes ofthe Borrower derived from any
source whatever other than ad valorem taxation on real and personal property, which are legally
available for Loan Repayments.
"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.
"Outstanding Bonds" or "Bonds Outstanding" means all Bonds which have been
authenticated and delivered by the Trustee under the Indenture, except:
( a) Bonds canceled after purchase in the open market 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 ofthe 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.
7
"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
corporation.
"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 ofthe
Indenture.
"Proportionate Share" means, with respect to any Borrower, a fraction the numerator of
which is the outstanding principal amount ofthe Loan of such Borrower made from proceeds ofthe
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.
"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.
8
"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 as provided therein or any
Alternate Surety Bond.
"Surety Bond Provider" means
any Alternate Surety Bond Provider.
and any successors thereto or
"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.
9
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:
(I) is a duly organized and validly existing municipality ofthe 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 ofthe 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 ofthe 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 ofthe 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 ofthe 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) ofthe 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 ofthe 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 ofthe date ofthis Agreement or (ii) with the giving of notice or the passage oftime 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 ofthis Agreement or the Borrower's
ability to perform fully its obligations under this Agree~ent; nor does such action result in any
violation of the provisions ofthe 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 ofthis Agreement and/or the passage oftime
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 ofthe
Borrower to perform hereunder.
(f) Governmental Consent. The Borrower has obtained, or will obtain, all permits,
approvals and findings of non-reviewability required as ofthe date hereofby any governmental body
or officer for the acquisition and/or installation ofthe Project, including construction and renovation
work, the financing or refinancing thereof or the reimbursement ofthe Borrower therefor, or the use
of such Project, and, prior to the Loan, the Borrower will obtain all other such permits, approvals and
findings as may be necessary for the foregoing and for such Loan and the proper application thereof;
the Borrower has complied with or will comply with all applicable provisions oflaw 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) Comoliance 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 ofthe proceeds ofthe Loan at the Closing ofthe Loan,
Borrower shall, as quickly as reasonably possible, with due diligence, and in any event prior to
, _, 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 ofthe Councilor 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 , _' Borrower will provide the Trustee with a requisition in the form of the
requisition attached hereto as Exhibit E for the expenditure ofthe remaining amounts ofthe 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 ofthe
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 ofthe 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 ofthe 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 may do so,
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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) Proiect. All items constituting the Project are permitted to be financed with the
proceeds of the Bonds and the Loan pursuant to the Act.
(j) Compliance with Interlocal Act and Interlocal Agreement. All agreements and
transactions provided for herein or contemplated hereby are in full compliance with the terms ofthe
Interlocal Agreement and the Interlocal Act.
SECTION 2.02. Covenants of Borrower. The Borrower makes the following covenants
and representations as ofthe date first above written and such covenants shall continue in full force
and effect during the Loan Term:
(a) Security for Loan Repavment. Subject to the provisions of Section 2.02(k) hereof, the
Borrower covenants and agrees to appropriate in its annual budget, by amendment, if required, and to
pay when due under this Loan Agreement as promptly as money becomes available directly to the
Trustee for deposit into the appropriate Fund or Account created in the Indenture, amounts of
Non-Ad Valorem Revenues of the Borrower sufficient to satisfy the Loan Repayment as required
under this Loan Agreement. Such covenant is subject in all respects to the payment of obligations
secured by a pledge of such Non-Ad Valorem Revenues heretofore or hereinafter entered into. Such
covenant and agreement on the part of the Borrower to budget and appropriate such amounts of
Non-Ad Valorem Revenues shall be cumulative, and shall continue until such Non-Ad Valorem
Revenues or other legally available funds in amounts sufficient to make all required Loan
Repayments, including delinquent Loan Repayments, shall have been budgeted, appropriated and
actually paid to the Trustee for deposit into the appropriate Fund or Account. The Borrower further
acknowledges and agrees that the Indenture shall be deemed to be entered into for the benefit ofthe
Holders of any of the Bonds and that the obligations of the Borrower to include the amount of any
deficiency in Loan Repayments in each of its annual budgets and to pay such deficiencies from
Non-Ad Valorem Revenues may be enforced in a court of competent j urisdiction in accordance with
the remedies set forth herein and in the Indenture. Notwithstanding the foregoing or any provision of
this Loan Agreement to the contrary, the Borrower does not covenant to maintain any services or
programs now maintained by the Borrower which generate Non-Ad Valorem Revenues or to
maintain the charges it presently collects for any such services or programs.
During such time as the Loan is outstanding hereunder, the Borrower agrees that, as soon as
practicable upon the issuance of debt by the Borrower which is secured by its Non-Ad Valorem
Revenues, it shall deliver to the Council and the Bond Insurer a certificate setting forth the
calculations of the financial ratios provided below and certifying that it is in compliance with the
following: (i) Non-Ad Valorem Revenues (average of actual receipts over the prior two years) must
cover projected maximum annual debt service on debt secured by and/or payable solely from such
Non-Ad Valorem Revenues by at least 1.5x; and (ii) projected maximum annual debt service
requirements for all debt secured by and/or payable solely from such Non-Ad Valorem Revenues
will not exceed 20% of Governmental Fund Revenues (defined as general fund, special fund, debt
13
service fund and capital projects funds), exclusive of (i) ad valorem revenues restricted to payment of
debt service on any debt and (ii) any debt proceeds, and based on the Borrower=s audited financial
statements (average of actual receipts of the prior two years). For the purposes ofthese covenants
maximum annual debt service means the lesser of the actual maximum annual debt service on all
debt or 15% of the original par amount of the debt, in each case, secured by Borrower Non-Ad
Valorem Revenues.
(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 finandal 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) [Reserved].
(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 ofthe 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, ifunpaid, 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.
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(h) Compliance with Laws. Etc. Subject to an annual appropriation oflegally 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 ~uch interest becoming included in gross
Income.
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 and 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.
(j) 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 ofthe Borrower hereunder 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 on real or personal property within the boundaries ofthe 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 ofthe Borrower or taxation of any real or personal property therein for
15
the payment 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 ofthe 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 ofthe Borrow~r. 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 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 oftheir 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 Loan 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.
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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 $ reofIeringpremium][less $ reofIeringdiscountD.
This amount includes a discount equal to % which reflect the Borrower's share ofthe 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 discount 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 3.0 I, together with interest thereon, and other payments required under
this Loan Agreement, shall be evidenced by this Loan Agreement.
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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 ofthis Loan Agreement and the payment in
full of principal and interest hereunder. Upon termination ofthe 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)
hereto;
Certified resolutions ofthe Borrower substantially in the form of Exhibit B attached
(b) An opinion ofthe Borrower's Counsel in the form of Exhibit C attached hereto to the
effect that the Loan Agreement is a valid and binding obligation ofthe 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 ofthe Borrower are true and correct;
(d) A certificate signed by the Authorized Representative ofthe Borrower, in form and
substance satisfactory to Bond Counsel, stating (i) the estimated dates and the amounts ofprojected
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 '_'
and that the projected expenditures are based on the reasonable expectations ofthe Borrower having
due regard for its capital needs and the revenues available for the repayment thereof.
( e) This executed Loan Agreement;
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(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
Loan proceeds is permitted under the Act, the Indenture and the resolution authorizing this Loan
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 ofthe 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 ofthe 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 ofthe 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 the fifteenth (15th) day ofthe month immediately preceding each Interest Payment Date,
the Trustee shall give Borrower notice in writing ofthe total amount ofthe 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
,2003, 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. Therefore the Borrower hereby agrees to make
deposits as set forth in subsection (c) of Section 5.03 hereof. Such Surety Bond maybe 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 ofthe Councilor the Trustee, the following Additional Payments:
(a) (i) Borrower's Proportionate Share of: the annual fees or expenses ofthe 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 oflssuance Fund); the fees of the
Program Administrator and the fees ofthe 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 ofthe Registrar and Paying Agent; and the Surety Bond premium ofthe 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 Councilor Trustee relating to this Loan
Agreement, including, but not limited to:
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(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 ofthis 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 deposit to the Reserve Fund held by the Trustee an amount equal to any amount
drawn from the Surety Bond in the Reserve Fund 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 from the Reserve
Fund due to the Borrower=s failure to pay its Basic Payments with the first available funds after
payment ofthe 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 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
held under the Indenture.
21
(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. Ifpast-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. Ifthe 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 ofthis 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 ofthe 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.
22
ARTICLE VI
DEFEASANCE
This Loan Agreement shall continue to be obligatory and binding upon the Borrower in the
performance ofthe 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 Councilor the Trustee. Provided, however, if, at any time, the
Borrower shall have paid, or shall have made provision for payment of, the principal amount ofthe
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 revem,J.es 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
sufficient cash and/or Governmental Obligations in irrevocable trust with a banking institution or
trust company, for the sole benefit of the Council in respect to which such Governmental
Obligations, the principal and interest received 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 redemption premiums, if any, on the Outstanding Bonds, shall be considered "provision
for payment."
Nothing herein shall be deemed to require the Council to call any ofthe outstanding Bonds
for redemption prior to maturity pursuant to any applicable optional redemption provisions, or to
impair the discretion of the Council in determining whether to exercise any such option for early
redemption.
Ifthe Borrower shall make advance payments to the Council in an amount sufficient to retire
the Loan ofthe 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 35 days= notice by
certified or registered mail to the Council.
23
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 ofthe 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.
24
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, anyone 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
25
limitation a receiver, liquidator or trustee) of the Borrower or any of its 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 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 ofthis Loan Agreement shall at any time for any reason cease
to be valid and binding on Borrower, or shall be declared to be null and void, or the validity or
enforceability of this Loan Agreement shall be contested by Borrower or any governmental agency or
authority, or if Borrower shall deny any further liability or obligation under this Loan Agreement; or
(j) Final judgment for the payment of money in the amount of $250,000 or more is
rendered against 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) 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
thereofto 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) 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 ofthe
Indenture, and, without limitation, one or more of the following:
(a) Declare all Loan Repayments, in an amount equal to 100% ofthe 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
26
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.
(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 Councilor 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 o.r 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 Councilor the
Trustee pursuant to Section 8.03 hereof shall be applied (a) first, to pay any attorney's fees or other
, expenses owed by 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).
27
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, 3rd 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, 3rd Floor
Jacksonville, Florida 32202
Borrower:
Any ofthe 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.
28
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.
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 b~ governed by and
construed in accordance with the laws ofthe 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 ofthe 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 ofthe 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 ofthis Loan Agreement, such consent or approval
may be given by an Authorized Representative of the Councilor 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 Councilor the Borrower, either directly or
through the Councilor 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.
29
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 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, ifthe
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]
30
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 [Borrower], 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.
(SEAL)
FLORIDA MUNICIPAL LOAN COUNCIL
ATTEST:
By:
Name:
Title; Chairman
By:
Name: Michael Sittig
Title: Executive Director
31
LOAN AGREEMENT
(SEAL)
[BORROWER]
By:
Name:
Title: Mayor
ATTESTED BY:
By:
Name:
Title: Clerk
Approved as to form and correctness
this _ day of , 2002.
By:
Name:
Title: Attorney
32
EXHffiIT A
[BORROWER]
USE OF LOAN PROCEEDS
DESCRIPTION OF PROJECT TO BE ACQUIRED OR CONSTRUCTED
PROJECT
[to come]
A-I
TOTAL AMOUNT
TO BE FINANCED
EXHffiIT B
CERTIFIED ORDINANCEOF THE BORROWER
See Document No.
B-1
EXHffiIT C
OPINION OF BORROWER'S COUNSEL
[Letterhead of Counsel to Borrower]
,2002
Florida Municipal Loan Council
c/o League of Cities, Inc.
301 Bronough Street
Tallahassee, Florida 32301
Wachovia Bank, National Association
Corporate Trust Department
225 Water Street, 3rd Floor
Jacksonville, Florida 32202
Bryant, Miller and Olive, P.A.
10 I East Kennedy Blvd., Suite 2100
Tampa, Florida 33602
Banc of America Securities LLC
1640 Gulf-to-Bay Boulevard
Clearwater, Florida 33755
MBIA Insurance Corporation
Armonk, New York
Gentlemen:
Weare counsel to [Name of Borrower] , Florida (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 , 2002 (the "Loan Agreement"), between the
Council and the Borrower.
In this connection, we have reviewed such records, certificates and other documents as we
have considered necessary or appropriate for the purposes ofthis opinion, including applicable laws,
and ordinances adopted by the [name of governing board] ofthe Borrower, the Loan Agreement, an
Trust Indenture dated as of , 2002 (the "Indenture") between the Council and
, as trustee (the "Trustee") and Ordinance No. enacted by the
Borrower on , 2002 (the "Ordinance"). Based on such review, and such other
considerations oflaw and fact as we believe to be relevant, we are of the opinion that:
(a) The Borrower is a municipality duly organized and validly existing under the
Constitution 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
C-l
into the Loan Agreement, to enact the Ordinance and to consummate the transactions contemplated
thereby and otherwise to carry on its activities and own its property.
(b) The Borrower has duly authorized, executed and delivered the Ordinance, 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 hereof 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 ofthe
State of Florida and the constitutional powers of the United States of America.
(c) The execution and deli very of the Ordinanc.e, the Continuing Disclosure Agreement,
the Bond Purchase Contract and the Loan Agreement, the consummation of the transactions
contemplated thereby, the purchase or construction ofthe Project or the reimbursement for costs of
the acquisition or construction thereof or the refinancing ofthe indebtedness to be refinanced with
the proceeds of the loan 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, ordinance,
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 our knowledge, threatened by governmental authorities or to
which the Borrower is a party or of which any property ofthe 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 ofthe Loan Agreement, the Bond Purchase Contract or the Continuing Disclosure
Agreement.
(e) Any indebtedness being refinanced, directly or indirectly, with the proceeds of the
Loan was initially incurred by the Borrower, and the proceeds of such indebtedness have been fully
expended, to finance the cost of the Project.
Weare attorneys 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,
C-2
Date
Principal
Amounts
EXHffiIT D
DEBT SERVICE SCHEDULE
Interest
Rate
Interest
Total
[TO COME]
D-l
EXHffiIT E TO LOAN AGREEMENT
FORM OF REQUISITION CERTIFICATE
, AS TRUSTEE
TO:
FROM:
(THE "BORROWER")
SUBJECT: LOAN AGREEMENT DATED AS OF THE
,2002
DAY OF
This represents Requisition Certificate No. _ in the total amount of $
payment of those Costs of the Project detailed in the schedule attached.
for
The undersigned does certify that:
1. All of the expenditures for which monies are requested hereby represent proper Costs
ofthe 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 ofthe 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:
J: \BONDS \2002\4118.04 \FormdocI \FormLA-1. wpd
Sept....ber 16, 2002
E-1
EXHffiIT C
FORM OF CONTINUING DISCLOSURE AGREEMENT
CLOSING DOCUMENT NO.
CONTINUING DISCLOSURE AGREEMENT
This CONTINUING DISCLOSURE AGREEMENT dated as of , 2002 (the
"Continuing Disclosure Agreement") is executed and delivered by the City of ,
Florida, a Florida municipal corporation ("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 Undertakine:. This Continuing Disclosure Agreement constitutes
an undertaking by the Borrower under paragraph (b)(5) Qf the Rule to provide Annual 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 paragraph
(b)(5)(i)(A) of the Rule and Section 4 hereof, which contains Annual 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 paragraph (b)(5)(i)(B) of the
Rule and 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 paragraph
(b )(5)(i)(C) of the Rule and 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 paragraph
(b)(5)(i)(D) of the Rule and Section 4(e) hereof, of any failure to disseminate an Annual Report in
accordance with the preceding clause (i) 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 Financial Information" shall have the meaning ascribed thereto in paragraph
(f)(9) of the Rule.
"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): (i) 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) (I) 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 former 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. The Audited Financial Statements shall be prepared in accordance
with generally accepted accounting principles on a comparative basis for the two Fiscal Years
immediately preceding the date of the Annual Report.
"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 term may be modified by an interpretation of the SEC of paragraph (b)( 5) of the
Rule.
"Bonds" means the $
2002B.
Florida Municipal Loan Council Revenue Bonds, Series
"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 (as defined in paragraph
(f)(3) of the Rule) prepared in connection with the Offering of the Bonds.
2
"Financial Information" means financial information 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 date
that the Annual Report is provided to the Dissemination Agent, such Financial Information may be
prepared on the basis of the Unaudited Financial Statements.
"Governing Body" shall mean the governing body of the Borrower which shall approve the
Audited Financial Statements.
"Indenture" means the Trust Indenture dated as of
Florida Municipal Loan Council, as Issuer, and
, 2002 by and between the
, as Trustee.
"Insurer" means
"Issuer" means Florida Municipal Loan Council.
"Loan Agreement" means the Loan Agreement dated as of
Issuer and the Borrower.
, 2002 between the
"Listed Events" means any of the events which are listed in paragraph (b )(5)(i)(C) of the
Rule as in effect on the date hereof and which are set forth in Section 6 hereof.
"MSRB" 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" shall have the meaning ascribed thereto in paragraph (a) of the Rule.
"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.
"Repository" or "Repositories" means the NRMSIRs and the Sills, either individually or
collectively, as the context requires.
"Rule" means Rule 15c2-12 adopted by the 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.
Rating Agencies" means Fitch, Inc. and Standard & Poor's Rating Service.
3
"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 SEe.
, as trustee under the Indenture.
"Trustee" means
"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. Aooointment of Dissemination Ae:ent: Oblie:ations of Borrower
Resoectine: Undertakine:.
(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 paragraph (5)(i) of the Rule in connection with the issuance of the Bonds 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 paragraph (5)(i) of the Rule.
SECTION 4. Annual Financial Information.
(a) The Annual 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 10 accordance with Section 4(b) hereof, the Annual Financial Statements, to each
4
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.
( 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, the Rating Agencies and the Insurer within five (5) Business Days of the Annual Report
Date.
SECTION 5. Continuinl! 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 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 (iii) 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. Reportinl! 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;
5
(ii) non-payment related defaults;
(iii) unscheduled draws on debt service reserves reflecting financial
difficulties;
(iv) unscheduled draws on credit enhancements reflecting financial
difficulties;
(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 ofthe 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 ofthe original execution and delivery hereof.
(b) Whenever the Borrower obtains actual knowledge of the occurrence of any of
the Listed Events, 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 determination 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
determination, and no Event Notice shall be provided pursuant to Section 6(e) hereof. The
determination 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).
6
(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
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 (i) 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 Information, 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. Assie:nment. 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. ComDensation of the Dissemination Ae:ent. As compensation to the
Dissemination Agent for its services pursuant to this Continuing Disclosure Agreement, the
Borrower agrees to pay all reasonable 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 permitted by law
7
indemnify and save the Dissemination Agent and its officers, directors, attorneys, agents and
employees harmless from and 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.
SECTION 11. Concernine: the Dissemination Ae:ent 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 Continuine: Disclosure Ae:reement. This Continuing
Disclosure Agreement shall terminate at such time as the Loan Agreement terminates.
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. Governine: Law. This Continuing Disclosure Agreement shall be governed
by the laws of the State of Florida.
8
IN WITNESS WHEREOF, the Borrower and the Dissemination Agent have caused this
Continuing Disclosure Agreement to be executed and delivered as of the date first written above.
CITY OF
Borrower
FLORIDA, as
By:
Its: City Manager
S-l
CONTINUING DISCLOSURE AGREEMENT
FLORIDA LEAGUE OF CITIES, INC.,
as Dissemination Agent
By: Michael Sittig
Its: Executive Director
S-2
EXHIBIT A
Form of Annual Report Certificate
The undersigned duly appointed and acting City Manager of the City of
Florida, a Florida municipal corporation, 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 , 2002 (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
[AuditedlUnaudited] 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 they have
been approved by the Governing Body.]
A-1
IN WITNESS WHEREOF, the undersigned has executed and delivered this Annual Report
Certificate to the Dissemination Agent, which has received such certificate and the Annual Report,
all as of the _ day of _,200_.
City of
, Florida, as Borrower
By:
Its:
Acknowledgment of Receipt:
as Dissemination Agent
By:
Its:
A-2
EXHIBIT B
Form of Section 5(8) Continuin2 Disclosure Certificate
Florida League of Cities
Tallahassee, Florida
[Trustee]
Florida Municipal Loan Council
Tallahassee, Florida
Banc of America Securities, LLC
Clearwater, Florida
The undersigned duly appointed and acting Mayor of the City of ,
Florida (the "Borrower") hereby certifies on behalf of the Borrower pursuant to the Continuing
Disclosure Agreement dated as of , 2002 (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:
I. Definitions. Capitalized terms used but not defined herein shall have the
meanings ascribed thereto in the Continuing Disclosure Agreement.
2. PU1J>ose. The Borrower is delivering this Continuing Disclosure Certificate to the
Dissemination Agent pursuant to Section 5(a) of the Continuing Disclosure Agreement.
3. Written Undertaking. On behalf of the Borrower, the Borrower hereby designates
the Continuing Disclosure Agreement to be the written undertaking under paragraph (b)(5) of the
Rule with respect to the $ Florida Municipal Loan Council Revenue Bonds, Series
2002B.
4. Financial Information and Operating Data Included in Final Official Statement.
The following types of Financial Information and Operating Data were included in the Final
Official Statement for the Bonds and are to be included in the Annual Report:
(a) Financial Information - NONE
(b) Operating Data - NONE
5. Annual Report. Until such time as the Borrower delivers a revised Continuing
Disclosure Certificate and an opinion of disclosure counsel to the Dissemination Agent pursuant
to Section 5 of the Continuing Disclosure Agreement, the Financial Information and Operating
Data of the types identified in paragraph 4 of this certificate shall be included in the Annual
Reports delivered by the Dissemination Agent pursuant to Section 4 of the Continuing Disclosure
Agreement.
B-1
IN WITNESS WHEREOF, the undersigned has executed and delivered this Continuing
Disclosure Certificate to the Dissemination Agent, which has received the same, all as of the
_ day of , 2002.
Acknowledgment of Receipt:
as Dissemination Agent
By:
Its: Executive Director
City of
, Florida, as Borrower
By:
Its: Mayor
B-2
EXHmIT D
FORM OF BOND PURCHASE CONTRACT
BOND PURCHASE CONTRACT
_,2002
RE: $ Florida Municipal Loan Council
Revenue Bonds, Series 2002C
Florida Municipal Loan Council
cj 0 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
(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.
SECfION 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 and Olive, P.A., Tampa, Florida.
"Bond Indenture" means the Trust Indenture dated as of
2002, between the Issuer and the Bond Trustee.
-,
"Bond Insurance Policy" means the
with respect to the Bonds.
issued by
"Bond Trustee" means
"Bonds" means the $
Revenue Bonds, Series 2002C.
Florida Municipal Loan Council
"Borrowers"
means
"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
,2002, 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
, 2002 between the Issuer and that Borrower.
"Loan Agreements" means the Loan Agreements, each dated as of
, 2002 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 _, 2002 of the Issuer and the Borrowers with respect to the
Bonds, including the cover page and all appendices, exhibits and statements included
therein or attached thereto.
2
"Reserve Fund Instrument" means the
issued by
"State" means the State of Florida.
with respect to the Bonds.
"Underwriter" means Banc of America Securities LLC.
"Underwriter's Counsel" means Moyle, Flanigan, Katz, Raymond & Sheehan,
P.A.
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 $ , plus accrued interest from
, 2002 to the date of Closing. The discount of $ reflected
in the foregoing purchase price represents $ of net original issue discount
and $ 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
40) 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.
3
(b) The Issuer is authorized under the laws of the State to: (i) 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
, 2002 approving and authorizing the adoption, execution and
delivery of this Agreement, 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
4
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, (iii) 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 title 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.
(i) 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.
G) 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.
5
(m) 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.
(0) The information contained in the Preliminary Official Statement (other
than the information in the section captioned ''The Borrowers," and in Appendices
A-F, 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 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.
(q) If between the date ofthis Agreement and the earlier of (i) ninety (90)
days from the end ofthe "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, ifin 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 its
expense of the Borrowers supplement or amend the Official Statement.
SECfION 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:
6
(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, the Continuing Disclosure Agreement,
and the Official Statement, to approve the Bond Indenture and the Bonds, and to
perform any acts required to be performed by continuing disclosure in 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 terms and
conditions set forth herein, in the Preliminary Official Statement and in the Bond
Indenture; (ii) the approval of the Preliminary Official Statement, the Bonds and the
Bond Indenture; (iii) the execution and delivery of this Agreement, the Continuing
Disclosure Agreement, the Loan Agreement and the Official Statement; 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.
(e) The information with respect to such Borrower contained in the
Preliminary Official Statement under the captioned ''The Borrower" and in
Appendices A- _, as applicable, 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.
(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 financing statements.
(g) The proceeds of the Bonds will not be used 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 of this Agreement, the Continuing
Disclosure Agreement, the Official Statement and the Loan Agreement and the other
documents contemplated herein and in the Official Statement, the approval by such
7
Borrower of the Bonds and the Bond Indenture, the application 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, 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.
(i) Except as may be described 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 such Borrower threatened, against or
affecting such Borrower 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, (iii) the
existence of such Borrower or the titles 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 of the interest on the 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.
G) Such Borrower is not now, and as of the date of Closing will not be, in
default with respect to any agreement to which either such Borrower is a party 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 refinanced, whether directly or indirectly, by such
Borrower with the proceeds of the Bonds is and will be owned by such Borrower.
0) 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
8
availability of the Official Statement by the Underwriter in obtaining such
qualification.
(m) 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.
(0) 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.
SECfION 5. Closing, Delivery and Payment. The Closing shall be held on
-' 2002 in , Florida or at such other time and 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 performance 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 permitted by this
Agreement, this Agreement shall terminate and none of the Underwriter, the Issuer or the
9
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;
(0 the Continuing Disclosure Agreements;
(g) the Resolutions of the Issuer referred to in Section g(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 A- _, 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;
(i) the closing certificate of each Borrower confirming the accuracy as of the
Closing of the representations made by it herein, and certifying that, the information
concerning such Borrower 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 that the Official
Statement 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;
G) the approving opinion of Bond Counsel substantially in the form included as
Appendix to the Preliminary Official Statement for the Bonds;
(k) a supplemental opinion of Bond Counsel;
10
0) an opinion oflegal counsel for each Borrower;
(m) an opinion of counsel to the Bond Trustee;
(n) an opinion of the Issuer's Counsel;
(0) 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;
(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 Counselor 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 Counselor 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
11
(aa) such additional legal opinions, certificates, instruments and other documents
as the Underwriter, the Borrowers, the Issuer, Underwriter's Counsel, Issuer's Counselor
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 perlormance or satisfaction by them of all
material agreements to be perlormed 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 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 of such 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 make
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 market price 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, any material restrictions not now 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
12
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.
SECfION 8. Termination by the Issuer. This Agreement may be terminated 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.
SECfION 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 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.
SECfION 10. Expenses. Except as hereinafter specifically provided, all expenses
and costs of the Issuer incident to the performance 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.
SECfION 11. Notices. Any notice or other communication to be given to the
Issuer or the Borrowers under this Agreement may be given by delivering the same in
writing to their respective addresses set forth above; 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.
13
SECflON 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 any
rights 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.
SECflON 13. Governing Law. This Bond Purchase Contract is to be governed
by and construed according to the laws of the State of Florida.
BANC OF AMERICA SECURITIES LLC
By:
Its
FLORIDA MUNICIPAL LOAN COUNCIL
By:
Its
[BORROWER]
By:
Its
[BORROWER]
By:
Its
[BORROWER]
By:
Its
14
SCHEDULE A
Terms of the Bonds
Dated:
, 2002
Interest Payment Dates:
land
1, commencing
1,
Maturity Date
( 1)
Amount
Interest
Rate
OPTIONAL REDEMPTION
The Bonds maturing on or before 1, are not subject to optional
redemption by the Issuer. The Bonds maturing after 1, are subject to
redemption at the option of the Issuer at the following prices plus accrued interest as
follows:
Redemption Date
Redemption Price
1,
1,
through
and thereafter
31,
_%
_%
MANDATORY REDEMPTION OF TERM BONDS
The term bond maturing 1, is subject to mandatory
redemption on November 1 in the following years and amounts:
Amount
$
Year
15
1, is subject to mandatory
1 in the following years and amounts:
The term bond maturing
redemption on
Year
Amount
$
The term bond maturing 1, is subject to mandatory redemption
on 1 in the following years and amounts:
S&P:
Fitch:
( insured)
Year
Amount
$ .
RATINGS
C:\DOCUMENTS AND SETTINGS\RTORRES\LOCAL SETI1NGS\TEMP<l&RY INTERNET FILES\OLXE\FORM-BPC.DOC