HomeMy WebLinkAbout2006 02 27 Regular Item 303 Adopt Resolution 2006-14
COMMISSION AGENDA
ITEM 303
Regular X
MGR./Dept.
February 27.2006
Meeting
REQUEST: The City Manager Is Requesting The Commission To Adopt
Resolution No. 2006-14, Accepting The Proposal From Wachovia Bank, National
Association (N.A.) To Provide The City With A Loan In The Amount Of $430,000
To Finance The Tuscawilla Beautification and Lighting District's (TLBD) Phase II
Construction Project.
PURPOSE: The purpose of this agenda item is to request the commission to adopt Resolution
No. 2006-14, accepting the proposal from Wachovia Bank, N.A. to provide the City with
a loan in the amount of $430,000 to finance the construction cost of the TLBD's Phase II
project; authorizing the execution and delivery of a loan agreement; authorizing the City
to secure payment of the loan with a non-ad valorem special assessment levied against
the benefited properties; authorizing the proper officials of the City to take action on
anything deemed necessary or advisable in connection with the execution of the loan
agreement, the note, and the security; and authorizing the execution and delivery of other
documents in connection with said loan.
CONSIDERATION: On November 14, 2005, Resolution No. 2005-43, "The Final
Improvement Resolution and Maintenance Assessment Resolution for the Tuscawilla
(Phase II) Assessment Area" was approved, setting a maximum Capital Improvement
Assessment rate at $17.00 and a maximum Maintenance Assessment rate at $48.00.
In January 2006, Progress Energy stated they would be able to begin the TLBD Phase II
streetlight installation in March 2006. With his in mind, it was determined that the funds
for the project would need to be available at the end of February.
City staff coordinated with Jay Glover of Public Financial Management, Inc. (PFM),
Matthew Matherne of Government Services Group (GSG) and Michael Williams of
Akerman Senterfitt on the financing with a closing date of February 28, 2006. On
January 31, 2006, Jay Glover distributed the Request for Proposals to four banks for a
fifteen year bank loan (15.33 years), with the first payment commencing on
Regular Agenda Item 303
February 27, 2006
Page 2 of2
January 1, 2007, to finance the cost of removal and replacement of existing street lights
and signage with decorative street lampposts and signage along the designated collector
roads in Tuscawilla. These proposals were due to Mr. Glover on Wednesday,
February 15, 2006 at 2:00 PM. Upon review of the four bids received, Mr. Glover
determined Wachovia Bank, N.A. had the lowest and most responsive bid at a fixed rate
of 4.10%, if closed on February 28, and has no prepayment penalty. See attached "Bank
Loan Response Summary." Annual debt service on this loan will not exceed $40,100 per
year.
Resolution No. 2006-14 is also attached to this agenda item. As of February 22, 2006,
this document was still being reviewed by staff, PFM, and the all attorneys - Bond, City
and Bank attorneys. Any changes to this document will be brought to the Commission at
tonight's meeting for consideration.
FUNDING: Funding to pay-off this financing would be from the Tuscawilla Phase II project
non-ad valorem assessment that will begin collection in November 2006.
RECOMMENDATIONS: City Manager recommends approval of Resolution No. 2006-14 and
authorization for the City Manager, Mayor, and staff to take action to facilitate closing
the financing.
ATTACHMENTS:
1. Bank Loan Response Summary
2. Resolution No. 2006-14
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City of Winter Springs, FL
Special Assessment Revenue Bonds, Series 2006
Bank Loan Response Summary
RESOLUTION NO. 2006-14
A RESOLUTION OF THE CITY OF WINTER SPRINGS, FLORIDA
AUTHORIZING THE ISSUANCE BY THE CITY OF ITS $430,000 IN
AGGREGATE PRINCIPAL AMOUNT OF SPECIAL ASSESSMENT
REVENUE BOND, SERIES 2006 (TUSCA WILLA PHASE II ASSESSMENT
AREA), TO FINANCE A PART OF THE COST OF THE REMOVAL OF
EXISTING STREET SIGNAGE AND STREETLIGHTS AND
INSTALLATION OF NEW DECORATIVE STREET LAMPPOSTS AND
SIGNAGE ALONG THE COLLECTOR ROADS IN THE TUSCA WILLA
(PHASE II) ASSESSMENT AREA AND TO PAY THE COSTS OF ISSUANCE
OF THE BONDS; PLEDGING TO SECURE PAYMENT OF THE
PRINCIPAL OF AND INTEREST ON THE BONDS, THE PROCEEDS OF
THE NON-AD VALOREM SPECIAL ASSESSMENTS LEVIED BY THE
CITY AGAINST PROPERTY WITHIN SUCH ASSESSMENT AREA
SPECIALLY BENEFITED BY SUCH PROJECT; DETERMINING THE
NEED FOR A NEGOTIATED SALE OF THE BONDS AND ACCEPTING
THE COMMITMENT OF W ACHOVIA BANK, NATIONAL ASSOCIATION
TO PURCHASE THE BONDS; APPROVING FORM OF SAID BONDS;
AUTHORIZING CERTAIN OFFICIALS AND EMPLOYEES OF CITY OF
WINTER SPRINGS, FLORIDA TO TAKE ALL ACTIONS REQUIRED IN
CONNECTION WITH THE ISSUANCE, SALE AND DELIVERY OF SAID
BONDS; DESIGNA TING THE BONDS AS BANK QUALIFIED;
APPOINTING THE PAYING AGENT AND REGISTRAR FOR THE BONDS;
MAKING CERTAIN COVENANTS AND AGREEMENTS FOR THE
BENEFIT OF THE HOLDERS OF THE BONDS; AND PROVIDING AN
EFFECTIVE DATE.
BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS,
FLORIDA:
SECTION 1. AUTHORITY FOR THIS RESOLUTION. This Resolution is adopted
pursuant to Chapter 166, Florida Statutes, Chapter 72-718, Laws of Florida, Special Acts of1972 as
amended and supplemented, being the Charter of the City of Winter Springs, Florida (the "City"),
Ordinance No. 98-704 of the City and other applicable provisions oflaw.
SECTION 2. DEFINITIONS. Unless the context otherwise requires, the terms
defined in this Resolution shall have the meanings specified in this section. Words importing
singular number shall include the plural number in each case and vice versa, and words importing
persons shall include firms and corporations.
"Acquired Obligations" shall mean and include any of the following securities, if and to the extent
the same are at the time legal for investment of funds of the Issuer:
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(1) any bonds or other obligations which as to principal and interest constitute direct
obligations of, or are unconditionally guaranteed by, the United States of America, including
obligations of any Federal agency or corporation which has been or may hereafter be created
pursuant to an act of Congress as an agency or instrumentality ofthe United States of America to the
extent unconditionally guaranteed by the United States of America or any other evidences of an
ownership interest in obligations or in specified portions thereof (which may consist of specified
portions of the interest thereon) of the character described in this clause (i) held by a bank or trust
company as custodian, under which the owner of the investment is the real party in interest and has
the right to proceed directly and individually against the obligor on the obligations described in this
clause (i), and which underlying obligations are not available to satisfy any claim of the custodian or
any person claiming through the custodian or to whom the custodian may be obligated; and
(2) any bonds or other obligations of (a) the State of Florida or any governmental unit
thereof or (b) any other state of the United States or governmental unit thereof, the interest on which
is excluded from gross income for federal income tax purposes and which are rated at such time in
the then highest rating category of two or more nationally recognized municipal rating agencies; and
(3) any bonds or other obligations of any state of the United States of America or
of any agency, instrumentality or local governmental unit of any such state (a) which are not callable
at the option of the obligor prior to maturity or as to which irrevocable notice has been given by the
obligor to call such bonds or obligations on the date specified in the notice, (b) which are fully
secured as to principal and interest and redemption premium, if any, bye fund consisting only of
cash or bonds or other obligations ofthe character described in clause (i) hereof which fund may be
applied only to the payment of such principal of and interest and redemption premium, if any, on
such bonds or other obligations on the maturity date or dates thereof or the specified redemption date
or dates pursuant to such irrevocable instructions, as appropriate, and ( c) as to which the principal of
and interest on the bonds and obligations ofthe character described in clause (i) hereof which have
been deposited in such fund along with any cash on deposit in such fund is sufficient to pay principal
of and interest and redemption premium, if any, on the bonds or other obligations described in this
clause (iii) on the maturity date or dates thereof or on the redemption date or dates specified in the
irrevocable instructions referred to in subclause (a) of this clause (iii), as appropriate.
"Amortization Installment" shall mean the payments contained in the Bond under the heading
"Amortization Installment" due on each July 1, commencing July 1, 2007.
"Assessment Area" shall mean that area within the City designated as the Tuscawilla (Phase
II) Assessment Area pursuant to City Resolution No. 2005-43 as amended and supplemented.
"Assessments" shall mean the proceeds to be derived from the Improvement Assessments
imposed and levied by the City pursuant to City Resolution No. 2005-40 against the property within
the Assessment Area to be specially benefitted by the construction of the Proj ect, including interest
on such Assessments and any penalties thereon and moneys received upon the foreclosure of the
liens of any such Assessments, but excluding moneys recovered for the expense of collecting
Assessments.
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"Bond Counse" shall mean Akerman Senterfitt or any other attorney at law or firm of
attorneys of nationally recognized standing in matters pertaining to the exclusion from gross income
for federal income tax purposes of interest on obligations issued by states and political subdivisions,
and duly admitted to practice law before the highest court of any state of the United States of
America.
"Bond Service Requirement" shall mean, for any Bond Year, the amount of principal of or
Amortization Installments and interest due on the Bonds for such Bond Year.
"Bond Year" shall mean the year commencing on July 2 of a year and ending on July I ofthe
following year.
"Bonds" shall mean the Special Assessment Revenue Bonds, Series 2006 (Tuscawilla Phase
II Assessment Area) herein authorized to be issued herein.
"City Attorney" shall mean the City Attorney of the Issuer.
"City Manager" shall mean the City Manager ofthe Issuer.
"Clerk" shall mean the City Clerk of the Issuer.
"Construction Fund" shall mean the Construction Fund created and established pursuant to
Section 17 of this Resolution.
"Delinquent Assessment Interest" shall mean the interest portion of the Assessments
deposited with the Issuer after the date on which such interest portion of the Assessments has
become due and payable.
"Delinquent Assessment Principal" shall mean the principal portion of the Assessments
deposited with the Issuer after the date on which such principal portion of the Assessments has
become due and payable.
"Finance Director" shall mean the Finance Director of the Issuer.
"Fiscal Year" shall mean the period commencing on October I of each year and ending on the
next succeeding September 3 0 or such other annual period as may be prescribed by law from time to
time for the Issuer.
"Holder of Bonds" or "Bondholders" or any similar term shall mean any persons who shall be
the registered owner of any outstanding Bonds.
"Issuer" or "City" shall mean the City of Winter Springs, Florida.
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"Outstanding" or "Bonds Outstanding" shall mean all Bonds which have been issued pursuant
to this Resolution, except:
(i) Bonds canceled after purchase in the open market or because of payment at or
redemption prior to maturity;
(ii) Bonds for the payment or redemption of which cash funds or Acquired
Obligations or any combination thereof shall have been theretofore irrevocably set aside in a special
account with an escrow agent (whether upon or prior to the maturity or redemption date of any such
Bonds) in an amount which, together with earnings on such Acquired Obligations, will be sufficient
to pay the principal of and interest on such Bonds at maturity or upon their earlier redemption;
provided that, if such Bonds are to be redeemed before the maturity thereof, notice of such
redemption shall have been given according to the requirements of this Resolution or irrevocable
instructions directing the timely publication of such notice and directing the payment of the principal
of and interest on all such Bonds at such redemption dates shall have been given; and
(iii) Bonds which are deemed paid pursuant to this Resolution or in lieu of which
other Bonds have been issued under Sections 11 and 13 hereof.
"Paying Agent" shall mean as to the Bonds, the City.
"Permitted Investments" shall mean investments authorized from time to time by applicable
laws of the State of Florida for deposit or purchase by the Issuer for the investment of its funds.
"Person" shall mean an individual, a corporation, a partnership, an association, ajoint stock
company, a trust, any unincorporated organization or governmental entity.
"Pledged Revenues" shall mean the Assessments, and until applied in accordance with the
provisions of this Resolution, the proceeds of the Bonds and all moneys including investments, in the
funds and accounts established hereunder, except the Rebate Fund.
"Prepayment Principal" shall mean the excess amount of the principal portion of the
Assessments received by the Issuer over the principal portion ofthe Assessments then due, but shall
not include Delinquent Assessment Principal.
"Project" shall mean the capital cost ofthe Tuscawilla (Phase II) Improvement Project all as
described in City Resolution No. 2005-40 as the same may be amended or supplemented from time
to time.
"Project Costs" shall mean all costs authorized to be paid from the Construction Fund
pursuant to Section 17 hereof to the extent permitted under the laws ofthe State and the ordinances
and resolutions of the City. It is intended that this definition be broadly construed to encompass all
costs, expenses and liabilities of the Issuer related to the Project which on the date of this Resolution
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or in the future shall be permitted to be funded with the proceeds ofthe Bonds pursuant to the laws
of the State.
"Purchaser" shall mean Wachovia Bank, National Association.
"Rebate Fund" shall mean the Rebate Fund created pursuant to Section 24 ofthis Resolution.
"Redemption Price" shall mean with respect to any Bond or portion thereof, the principal
amount or portion thereof, plus the applicable premium, if any, payable upon redemption thereof
pursuant to such Bond or this Resolution.
"Registrar" shall mean the City, and any other Person which may at any time be substituted in
its place pursuant to a supplemental resolution.
"Resolution" shall mean this resolution as from time to time may be amended or
supplemented, in accordance with the terms hereof.
"State" shall mean the State of Florida.
The terms "herein," "hereunder," "hereby," "hereto," "hereof' and any similar terms shall
refer to this Resolution; the term "heretofore" shall mean before the date of adoption of this
Resolution; and the term "hereafter" shall mean after the date of adoption of this Resolution.
Words importing the masculine gender include every other gender. Words importing the
singular number include the plural number, and vice versa.
SECTION 3.
FINDINGS. It is hereby ascertained, determined and declared that:
(1) It is in the best interests of the Issuer and the residents thereofthat the Issuer authorize
the issuance of the Bonds for the purpose of designing, permitting, acquiring and constructing the
Project.
(2) The Issuer has legally imposed the Assessments.
(3) The principal of and interest and redemption premium on the Bonds and all other
payments hereunder will be secured solely by the Pledged Revenues. The Issuer shall never be
required to use any ad valorem taxes for the payment ofthe Bonds. The Bonds shall not constitute a
pledge ofthe faith and credit of the Issuer, nor shall the Bondholders have any lien or encumbrance
on the Proj ect or upon any other property of the Issuer except the Pledged Revenues.
(4) The Pledged Revenues have not been pledged or encumbered in any manner.
SECTION 4. AUTHORIZATION OF DESIGN, PERMITTING, ACQUISITION
AND CONSTRUCTION OF THE PROJECT. There is hereby authorized the design, permitting,
acquisition and construction of the Project.
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SECTION 5. THIS RESOLUTION TO CONSTITUTE CONTRACT. In
consideration of the purchase and acceptance of any or all of the Bonds by those who shall hold the
same from time to time, the provisions ofthis Resolution shall be deemed to be and shall constitute a
contract between the Issuer and the Owners from time to time of the Bonds. The pledge made in this
Resolution and the provisions, covenants and agreements herein set forth to be performed by or on
behalf of the Issuer shall be for the equal benefit, protection and security ofthe Owners of any and all
of the Bonds. All of the Bonds, regardless of the time or times of their issuance or maturity, shall be
of equal rank without preference, priority or distinction of any of the Bonds over any other thereof
except as expressly provided in or pursuant to this Resolution.
SECTION 6. AUTHORIZATION OF BONDS. Subject and pursuant to the
provisions hereof, obligations of the Issuer to be known as "Special Assessment Revenue Bonds,
Series 2006 (Tuscawilla Phase II Assessment Area)," are authorized to be issued in the aggregate
principal amount of$430,000.
SECTION 7. DESCRIPTION OF BONDS. The Bonds shall be issued in fully
registered form in substantially the form set forth in Section 15 hereof and otherwise in accordance
with the commitment of the Purchaser attached hereto.
Each Bond shall bear interest from the interest date next preceding the date on which it is
authenticated, unless authenticated on an interest payment date, in which case it shall bear interest
from such interest payment date, or, unless authenticated prior to the first interest payment date, in
which case it shall bear interest from its date; provided, however, that if at the time of authentication
payment of any interest which is due and payable has not been made, such Bond shall bear interest
from the date to which interest shall have been paid.
The principal of and the interest on the Bonds shall be payable in any coin or currency of the
United States of America which on the respective dates of payment thereof is legal tender for the
payment of public and private debts. The interest on the Bonds shall be payable by the Paying Agent
on each interest payment date to the Person appearing on the registration books of the Issuer
hereinafter provided for as the registered Owner thereof on the 15th day of the calendar month
immediately preceding the applicable interest payment date, by check or draft mailed to such
registered Owner at his address as it appears on such registration books or by wire transfer or other
means mutually acceptable to the City and the Owner. Payment ofthe principal of all Bonds shall be
made upon the presentation and surrender of such Bonds as the same shall become due and payable.
SECTION 8. EXECUTION OF BONDS. The Bonds shall be signed by, or bear the
facsimile signature of the Mayor or Deputy Mayor of the Issuer, and shall be attested by, or bear the
facsimile signature of, the Clerk or any Deputy Clerk and a facsimile of the official seal of the Issuer
shall be imprinted on the Bonds.
In case any officer whose signature or a facsimile of whose signature shall appear on any
Bonds shall cease to be such officer before the delivery of such Bonds, such signature or such
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facsimile shall nevertheless be valid and sufficient for all purposes the same as ifhe has remained in
office until such delivery. Any Bond may bear the facsimile signature of or may be signed by such
persons who, at the actual time of the execution of such Bond, shall be the proper officers to sign
such Bonds although, at the date of such Bond, such persons may not have been such officers.
SECTION 9. AUTHENTICATION OF BONDS. Only such of the Bonds as shall
have endorsed thereon a certificate of authentication substantially in the form hereinbelow set forth,
duly executed by the Registrar, as authenticating agent, shall be entitled to any benefit or security
under this Resolution. No Bond shall be valid or obligatory for any purpose unless and until such
certificate of authentication shall have been duly executed by the Registrar, and such certificate of
the Registrar upon any such Bond shall be conclusive evidence that such Bond has been duly
authenticated and delivered under this Resolution. The Registrar's certificate of authentication on any
Bond shall be deemed to have been duly executed if signed by an authorized officer ofthe Registrar,
but it shall not be necessary that the same officer sign the certificate of authentication of all of the
Bonds that may be issued hereunder at anyone time.
SECTION 10. EXCHANGE OF BONDS. Any Bonds, upon surrender thereof at the
office of the Registrar, together with an assignment duly executed by the Bondholder or his attorney
or legal representative in such form as shall be satisfactory to the Registrar, may, at the option ofthe
Owner, be exchanged for an aggregate principal amount of Bonds equal to the principal amount of
the Bond or Bonds so surrendered.
The Registrar shall make provision for the exchange of Bonds at the designated office of the
Registrar. The Issuer and Registrar shall not be obligated to make any exchange of Bonds during the
fifteen (15) days next preceding an interest payment date or in the case of any proposed redemption
of Bonds during the fifteen (15) days next preceding the redemption date established for such Bonds.
SECTION 11. NEGOTIABILITY, REGISTRATION AND TRANSFER OF BONDS.
The Registrar shall keep books for the registration of and for the registration of transfers of Bonds as
provided in this Resolution. The transfer of any Bonds may be registered only upon such books and
only upon surrender thereof to the Registrar together with an assignment duly executed by the Owner
or his attorney or legal representative in such form as shall be satisfactory to the Registrar. Upon any
such registration oftransfer, the Issuer shall execute and the Registrar shall authenticate and deliver
in exchange for such Bond, a new Bond or Bonds registered in the name ofthe transferee, and in an
aggregate principal amount equal to the principal amount of such Bond or Bonds so surrendered. The
Issuer and Registrar shall not be obligated to make any transfer of Bonds during the fifteen (15) days
next preceding an interest payment date or in the case of any proposed redemption of Bonds during
the fifteen (15) days next preceding the redemption date established for such Bonds.
In all cases in which Bonds shall be exchanged, the Issuer shall execute and the Registrar
shall authenticate and deliver, at the earliest practicable time, a new Bond or Bonds in accordance
with the provisions of this Resolution. All Bonds surrendered in any such exchange or registration of
transfer shall forthwith be canceled by the Registrar. The Issuer or the Registrar may make a charge
for every such exchange or registration oftransfer of Bonds sufficient to reimburse it for any tax or
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other governmental charge required to be paid with respect to such exchange or registration of
transfer, but no other charge shall be made to any Owner for the privilege of exchanging or
registering the transfer of Bonds under the provisions of this Resolution.
SECTION 12. OWNERSHIP OF BONDS. The Person in whose name any Bond shall
be registered shall be deemed and regarded as the absolute owner thereof for all purposes, and
payment of or on account of the principal or redemption price of any such Bond, and the interest on
any such Bonds shall be made only to or upon the order of the registered owner thereof or his legal
representative. All such payments shall be valid and effectual to satisfy and discharge the liability
upon such Bond including the premium, if any, and interest thereon to the extent of the sum or sums
so paid.
SECTION 13. BONDS MUTILATED, DESTROYED, STOLEN OR LOST. In case
any Bond shall become mutilated, or be destroyed, stolen or lost, the Issuer may in its discretion
cause to be executed, and the Registrar shall authenticate and deliver, a new Bond oflike date and
tenor as the Bond so mutilated, destroyed, stolen or lost in exchange and substitution for such
mutilated Bond upon surrender and cancellation of such mutilated Bond or in lieu of and substitution
for the Bond destroyed, stolen or lost, and upon the Owner furnishing the Issuer and the Registrar
proof of his ownership thereof and satisfactory indemnity and complying with such other reasonable
regulations and conditions as the Issuer and the Registrar may prescribe and paying such expenses as
the Issuer and the Registrar may incur. All Bonds so surrendered shall be canceled by the Issuer. If
any ofthe Bonds shall have matured or be about to mature, instead of issuing a substitute Bond, the
Issuer may pay the same, upon being indemnified as aforesaid, and if such Bond be lost, stolen or
destroyed, without surrender thereof.
Any such duplicate Bonds issued pursuant to this Section shall constitute original, additional
contractual obligations on the part of the Issuer whether or not the lost, stolen or destroyed Bonds be
at any time found by anyone, and such duplicate Bonds shall be entitled to equal and proportionate
benefits and rights as to lien on and source and security for payment from the funds, as hereinafter
pledged, to the same extent as all other Bonds issued hereunder.
SECTION 14. PROVISIONS FOR REDEMPTION. The Bonds are redeemable prior
to their stated date of maturity, at the option of the Issuer, as a whole or in part on any date in such
manner as shall be determined by the Issuer at a redemption price of the principal amount to be
redeemed without premium plus accrued interest to the redemption date. The Bonds are also subject
to mandatory redemption from Amortization Installments as provided in the Bonds.
Notice of any optional redemption of Bonds shall be given by the Issuer in a written notice
delivered to the Owner not more than fifteen (15) and not less than five (5) days prior to the specified
redemption date.
SECTION 15. FORM OF BONDS. The text of the Bonds, together with the
certificate of authentication to be endorsed therein, shall be in substantially the following form, with
such omissions, insertions and variations as maybe necessary, desirable, authorized or permitted by
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this Resolution, or as may be necessary to comply with applicable laws, rules and regulations ofthe
United States and of the State in effect upon the issuance thereof.
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[FORM OF BOND]
No. R-
$430,000
UNITED STATES OF AMERICA
STATE OF FLORIDA
COUNTY OF SEMINOLE
CITY OF WINTER SPRINGS
SPECIAL ASSESSMENT REVENUE BOND, SERIES 2006
(TUSCA WILLA PHASE II ASSESSMENT AREA)
MATURITY DATE
July 1, 2021
INTEREST RATE
4.10%
DATED DATE
February 28,2006
Registered Owner: Wachovia Bank, National Association
Principal Amount: Four Hundred Thirty Thousand Dollars
KNOW ALL MEN BY THESE PRESENTS that the City of Winter Springs, Florida
(hereinafter called the "Issuer) for value received, hereby promises to pay to the order of the
Registered Owner identified above or registered assigns, as herein provided, on the Maturity Date
identified above, upon the presentation and surrender hereof at the office of the City Clerk of the
Issuer, solely from the revenues hereinafter mentioned, the Principal Amount identified above in any
coin or currency ofthe United States of America which on the date ofpayment thereofis legal tender
for the payment of public and private debts, and to pay, solely from said sources, to the Registered
Owner hereof interest on said Principal Amount at the Interest Rate per annum identified above on
each January 1 and July I commencing January 1, 2007 from the interest payment date next
preceding the date of registration and authentication of this Bond, unless this Bond is registered and
authenticated as of an interest payment date, in which case it shall bear interest from said interest
payment date, or unless this Bond is registered and authenticated prior to January 1, 2007, in which
event this Bond shall bear interest from its dated date. This Bond may not be issued in
denominations less than the lesser of $1 00,000 or the remaining principal amount thereof.
The interest rate on this Bond shall be subject to adjustment as follows:
(a) Change in Maximum Corporate Tax Rate. If the maximum federal corporate income
tax rate for the Purchaser (or in the case of another institutional holder of this Bond, such holder or
its holding company) and its subsidiaries (collectively, the "Lender") during any period in which
interest is accruing, shall be other than 35%, then the interest on this Bond during such period shall
be modified by multiplying the interest on this Bond (as adjusted) by a fraction equal to (1 - A)/.65
where A equals the maximum marginal corporate income tax rate then in effect.
(b) Alternative Minimum Tax Where Interest on this Bond is a Direct Tax Preference
Item. If the Lender or its parent holding company pays an alternative minimum tax in any tax year
and the interest on this Bond is a direct tax preference item under section 57(a)(5) or any successor
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provision ofthe Internal Revenue Code then the interest on this Bond for the period during such tax
year in which interest is accruing on this Bond shall be increased during such accrual period by an
amount equal to (A - B) x C where:
(1) A equals the interest on this Bond expressed as a percentage;
(2) B equals the Lender's Adjusted Cost of Funds; and
(3) C equals the maximum marginal rate of the alternative minimum tax expressed as a
decimal (currently .20).
"Lender's Adjusted Cost of Funds" means the fraction (expressed as a percentage), determined by
the Lender, of the total interest expense of the Lender for each calendar year divided by the total
average adjusted bases of all assets of the Lender during the calendar year as determined under
Section 265(b)(2)(B) of the Code or any successor provision thereto.
(c) Alternative Minimum Tax Where Interest on this Bond is an Indirect Tax Preference
Item. If the Lender or its holding company pays an alternative minimum tax in any tax year and the
interest on this Bond is not a direct tax preference item under section 57(a)(5), but is an indirect tax
preference item because ofthe application of section 56(g) or any successor provision ofthe Internal
Revenue Code then the interest rate for the period during such tax year in which interest is accruing
on this Bond shall be increased during such accrual period by an amount to (A - B) x C where:
(1) A equals the interest on this Bond expressed as a percentage;
(2) B equals the Lender's Adjusted Cost of Funds; and
(3) C equals 75% of the maximum marginal rate of the alternative minimum tax
expressed as a decimal, or, ifthe Code is amended to effectively increase or decrease the percentage
of interest on this Bond which is subj ect to such indirect alternative minimum tax, then C shall equal
the percentage of such interest on this bond which is effectively subject to such indirect alternative
minimum tax multiplied by the maximum marginal rate of the alternative minimum tax expressed as
a decimal.
(d) Loss of Federal Income Tax Deduction for State Income Taxes. Ifthe federal income
tax deduction for state income taxes paid on the interest on this Bond during any period is reduced
because of any change in the tax laws or regulations then the interest on this Bond shall be increased
during such period by an amount equal to A x B x C x D where:
(1) A equals the fraction (expressed as a decimal) of the total state income tax disallowed
as a result of such tax law change;
(2) B equals the rate of the applicable state income tax (expressed as a decimal);
(3) C equals the maximum federal corporate tax rate then in effect for the Lender
(expressed as a decimal); and
(4) D equals the interest on this Bond (expressed as a percentage).
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( e) Partial Taxability. If the interest on this Bond during any period becomes partially
taxable because of any change in the tax laws or regulations, then the interest on this Bond shall be
increased during such period by an amount equal to (A - B) x C where:
(1) A equals the Taxable Rate (expressed as a percentage);
(2) B equals the interest on this Bond (expressed as a percentage); and
(3) C equals the fraction of the interest on this Bond which has become taxable as the
result of such tax change (expressed as a decimal).
(f) Other Change in Tax Laws. If the tax laws or regulations are amended to cause the
interest on this Bond to be taxable, to be subject to a minimum tax or an alternative minimum tax or
to otherwise decrease the after tax yield on this Bond to the Lender (directly or indirectly, other than
a change described in (a) through (e) above or because of a Determination ofTaxability) then the
interest on this Bond shall be adjusted to cause the yield on this Bond, after payment of any increase
in tax, to equal what the yield on this Bond would have been in the absence of such change or
amendment in the tax laws or regulations.
The above adjustments shall be cumulative, but in no event shall the interest on this Bond
exceed the maximum permitted by law. The above adjustments to the interest rate on this Bond shall
be effective on the effective date of the applicable change in the tax laws or regulations. All tax rates
and interest rates are expressed as annual rates. However, proper partial adjustment shall be made if
the tax law change is effective after the first day of the Lender's tax year or if the interest on this
Bond does not accrue for the entire tax year of the Lender. Adjustments which create a circular
calculation because the interest on this Bond is affected by the calculation shall be carried out
sequentially, increasing the interest on this Bond accordingly in each successive calculation using as
the new value the increase in the interest rate on this Bond, until the change on the interest rate on
this Bond caused by the next successive calculation of the adjustment is de minimis. If more than
one of paragraphs (a) though ( e) apply, then the interest on this Bond shall be adjusted in the order in
which listed above.
Non-Bank Qualified Rate
In the event this Bond is not a "qualified tax-exempt obligation" under Section 265(b )(3)(B)
of the Internal Revenue Code, the interest rate on this Bond shall be adjusted to that interest rate
necessary to ensure that the anticipated after tax yield contemplated by the Lender at the time of
original purchase of the Bond is received.
Taxable Rate
Notwithstanding the foregoing, in the event of a "Determination of Taxability" (as
hereinafter defined), this Bond shall bear interest at the rate equal to the Taxable Rate (the "Taxable
Rate"), from and after and retroactively to the date as of which such Determination of Taxability is
made and the Bondholder shall be entitled to such additional interest on this Bond. For purposes
hereof, "Determination ofTaxability" means the circumstance ofthe interest on the Bond becoming
includable for federal income tax purposes in the gross income of the Lender as a consequence of
any act, omission or event whatsoever and regardless of whether the same was within or beyond the
{OR980912;4 }
12
control ofthe Issuer. A Determination of Taxability will be deemed to have occurred upon (i) the
receipt by the Issuer or the Lender of an original or a copy of an Internal Revenue Service Technical
Advice Memorandum or Statutory Notice of Deficiency which holds that the interest on the Bond is
includable in the gross income of the Lender or (ii) the issuance of any public or private ruling of the
Internal Revenue Service that the interest on this Bond is includable in the gross income of the
Lender. For all purposes ofthis definition, a Determination ofTaxability will be deemed to occur on
the date as of which the interest on the Note is deemed includable in the gross income ofthe Lender.
In no event, however, shall interest be charged or paid in an amount in excess of the
maximum interest rate permitted to be paid under applicable law.
Additional Definitions
"Prime Rate" means that index rate of interest which the Lender, from time to time
announces as its prime rate, which rate is an index rate for guidance to loan officers and is not
necessarily the best or lowest rate charged borrowing customers of the Lender, or if such rate is no
longer announced, such comparable rate as shall be determined by the Registered Owner.
"Taxable Rate" means a rate equal to the Prime Rate times that percentage which after the
Determination of Taxability will result in the same after-tax yield to the Registered Owner of the
Note as before said Determination of Taxability.
Optional Redemption
This Bond is redeemable prior to the stated date of maturity, at the option of the Issuer, as a
whole or in part on any date in such manner as shall be determined by the Issuer at a redemption
price of the principal amount to be redeemed without premium plus accrued interest to the
redemption date.
Mandatory Redemption
This Bond is subject to mandatory redemption in part by the Issuer by lot prior to its
scheduled maturity in satisfaction of applicable Amortization Installments at a Redemption Price of
100% of the principal amount thereof, without premium, plus accrued interest to the redemption
date, on July 1 of the years and in the principal amounts set forth below.
Year Amortization Installment
2007
2008
2009
2010
2011
2012
2013
2014
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13
2015
2016
2017
2018
2019
2020
2021
Upon any redemption of this Bond (other than redemptions in accordance with scheduled
Amortization Installments) the Issuer shall cause to be recalculated revised Amortization
Installments recalculated so as to amortize the Outstanding Bond in substantially equal annual
installments of principal and interest over the remaining term of this Bond.
Extraordinary Mandatory Redemption
This Bond is subject to extraordinary mandatory redemption in whole or in part on any
interest payment date and if in part in inverse order of maturity at a redemption price equal to the
principal amount thereof and accrued interest to the date of redemption as a result of deposits of
Prepayment Principal to the Prepayment Account.
Notice of such redemption shall be given in the manner required by the Resolution described
below.
This Bond is one of an authorized issue of Bonds in the aggregate principal amount of
$430,000 oflike date, tenor and effect, issued to acquire, construct and erect certain capital projects
within the Tuscawilla (Phase II) Assessment Area (as described in Resolution No. 2005-43 ofthe
Issuer) located within the jurisdiction of the Issuer, all in full compliance with the Constitution and
Statutes ofthe State of Florida, including particularly Chapter 166, Florida Statutes, the Charter of
the Issuer, Ordinance No. 98-704 of the Issuer and Resolution No. 2006-14 duly adopted by the
Issuer on February 27,2006 (hereinafter collectively called the "Resolution") and is subject to all the
terms and conditions of such Resolution. All capitalized undefined terms used herein shall have the
meaning set forth in the Resolution.
This Bond and the interest hereon are payable solely from and secured by a lien upon and a
pledge of the Pledged Revenues (as defined in the Resolution), all in the manner and to the extent
provided in the Resolution.
This Bond does not constitute a general indebtedness of the Issuer within the meaning of any
constitutional, statutory or charter provision or limitation, and it is expressly agreed by the Owner of
this Bond that such Bondowner shall never have the right to require or compel the exercise of the ad
valorem taxing power of the Issuer or taxation of any real or personal property therein for the
payment of the principal of and interest on this Bond or the making of any bond service fund, reserve
or other payments provided for in the Resolution.
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14
It is further agreed between the Issuer and the Owner of this Bond that this Bond and the
indebtedness evidenced hereby shall not constitute a lien or on any property of or in the Issuer, but
shall constitute a lien only on the Pledged Revenues all in the manner provided in the Resolution.
Neither the members of the City Commission of the Issuer nor any person executing this
bond shall be liable personally hereon or be subject liability or accountability by reason of the
issuance hereof.
It is certified that this Bond is authorized by and is issued III conformity with the
requirements of the Constitution and Statutes of the State of Florida.
This Bond is and has all the qualities and incidents of a negotiable instrument under the laws
of the State of Florida but may be transferred by the Bondowner hereof in person or by his attorney
or legal representative at the office of the Registrar but only in the manner and subject to the
conditions provided in the Resolution and upon surrender and cancellation of this Bond.
This Bond shall not be valid or become obligatory for any purpose or be entitled to any
benefit or security under the Resolution until it shall have been authenticated by the execution by the
Registrar of the certificate of authentication endorsed hereon.
IN WITNESS WHEREOF, the City of Winter Springs, Florida, has issued this Bond and
has caused the same to be signed by its Mayor, and countersigned and attested to by its Clerk (the
signatures ofthe Mayor, and the Clerk being authorized to be facsimiles of such officers' signatures),
and its seal or facsimile thereof to be affixed, unpressed, imprinted, lithographed or reproduced
hereon, all as ofthe 28th day of February, 2006.
CITY OF WINTER SPRINGS, FLORIDA
Mayor
(SEAL)
ATTESTED AND COUNTERSIGNED:
City Clerk
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15
CERTIFICATE OF AUTHENTICATION
This Bond is one ofthe Bonds issued under the provisions of the within mentioned Resolution.
CITY OF WINTER SPRINGS, FLORIDA, Registrar
Date of Authentication:
By:
City Clerk
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16
ASSIGNMENT AND TRANSFER
For value received the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or other identifYing number oftransferee) the
attached bond of the City of Winter Springs, Florida, and does hereby constitute and appoint
, attorney, to transfer the said Bond on the books kept for
Registration thereof, with full power of substitution in the premises.
Date
Signature Guaranteed by
(member firm of the New York Stock
Exchange or a commercial bank or a trust
company.)
NOTICE: No transfer will be registered and
no new Bonds will be issued in the name of
the Transferee, unless the signature to this
assignment corresponds with the name as it
appears upon the face of the within Bond in
every particular, without alteration or
enlargement or any change whatever and the
Social Security or Federal Employer
Identification Number of the Transferee is
supplied.
By:
Title:
(END OF FORM OF BOND]
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17
SECTION 16. CREATION OF FUNDS. There are hereby created and established for
the Bonds the following funds and accounts, which funds and accounts shall be trust funds held by
the City for the purposes herein provided and used only in the manner herein provided:
(1) The "City of Winter Springs Special Assessment Revenue Fund" (hereinafter
sometimes called the "Revenue Fund") to be held by the Issuer and to the credit of which deposits
shall be made as required by Section 20(A) hereof.
(2) The "City of Winter Springs Special Assessment Bond Service Fund" (hereinafter
sometimes called the "Bond Service Fund") to be held by the Issuer and to the credit of which
deposits shall be made as required by Section 20(B)( 1) hereof. In such fund there shall be maintained
the following accounts: the Principal Account, the Interest Account, the Redemption Account and
the Prepayment Account.
(3) The "City of Winter Springs Special Assessment Construction Fund" (hereinafter
sometimes called the "Construction Fund") to be held by the Issuer and to the credit of which
deposits shall be made as required by Section 17 hereof.
SECTION 17 . APPLICATION OF BOND PROCEEDS. The proceeds, including
accrued interest and premium, if any, received from the sale of the Bonds shall be applied by the
Issuer simultaneously with the delivery of such Bonds to the purchaser thereof, as follows:
(1) Any accrued interest shall be deposited in the Interest Account and shall be used only
for the purpose of paying interest becoming due on the Bonds.
(2) The balance of the proceeds of the Bonds shall be deposited into the Construction
Fund hereby created and used solely for the purpose of paying Project Costs and costs of issuing and
delivering the Bonds. Costs of issuing and delivering the Bonds shall be paid at the direction of the
City Manager of the Issuer or his designee. The Issuer shall make disbursements or payments from
the Construction Fund to pay the Project Costs only upon the filing in the office of the Clerk of
certificates signed by the Finance Director and the Project engineer or other qualified consultant,
stating with respect to each disbursement or payment to be made: (1) the item number of the
payment, (2) the name and address of the Person to whom payment is due, (3) the amount to be paid,
and (4) that each obligation, item or cost or expense mentioned therein has been properly incurred, is
in payment of a part of the Proj ect Cost and is a proper charge against the Construction Fund and has
not been the basis of any previous disbursement or payment, or that each obligation, item of cost or
expense mentioned therein is a reimbursement of a part of the Project Cost which has been paid by
the Issuer or will be paid by the Issuer substantially contemporaneously with such disbursement from
the Construction Fund, and is a proper charge against the Construction Fund, has not been
theretofore reimbursed to the Issuer or otherwise been the basis of any previous disbursement or
payment and the Issuer is entitled to reimbursement thereof.
The date of completion of the Project shall be determined by the Project engineer or other
qualified consultant who shall certify such fact in writing to the governing body of the Issuer.
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18
Promptly after the date ofthe completion of the Project, and after paying or making provisions for
the payment of all unpaid items of the Project Cost, the Issuer shall deposit any balance of moneys
remaining in the Construction Fund in such other fund or account ofthe Issuer as shall be determined
by the governing body, provided the Issuer has received an opinion of Bond Counsel to the effect
that such transfer shall not adversely affect the exclusion of interest on the Bonds from gross income
for federal income tax purposes.
SECTION 18. DISBURSEMENTS FROM CONSTRUCTION FUND. Moneys on
deposit from time to time in the Construction Fund shall be used to payorreimburse Project Cost (as
defined in Resolution No. 2005-40 ofthe City).
SECTION 19. SPECIAL OBLIGATIONS OF ISSUER The Bonds shall not be or
constitute general obligations or indebtedness of the Issuer as "bonds" within the meaning of the
Constitution of Florida, but shall be payable solely from and secured by a lien upon and a pledge of
the Pledged Revenues as herein provided. No Holder or Holders of any Bonds issued hereunder shall
ever have the right to compel the exercise of the ad valorem taxing power of the Issuer or taxation in
any form of any real or personal property therein, or to compel the Issuer to pay such principal and
interest from any other funds of the Issuer.
SECTION 20. COVENANTS OF THE ISSUER. For so long as any of the principal
of and interest on any of the Bonds shall be outstanding and unpaid or until the Issuer has made
provision for payment of principal, interest and redemption premiums, if any, with respect to the
Bonds, as provided herein, the Issuer covenants with the Holders of any and all Bonds as follows:
(A) REVENUE FUND. All Assessments (other than Delinquent Assessment Principal,
Delinquent Assessment Interest and Prepayment Principal) shall upon receipt thereofby the Issuer be
deposited in the Revenue Fund. All deposits into such Revenue Fund shall be deemed to be held in
trust for the purposes herein provided and used only for the purposes and in the manner herein
provided.
(B) DISPOSITION OF REVENUES. All revenues in the Revenue Fund shall be disposed
of at least two (2) business days prior to each January 1 and July 1 commencing January 1,2007
(each being an "Interest Payment Date") only in the following manner and the following order or
priority:
(1) The Issuer shall first deposit into the Bond Service Fund and credit to the
following accounts, in the following order, the following identified sums:
(a) Interest Account: A portion of the Assessments which shall represent
interest on the Assessments as will be sufficient to pay all interest coming due on all outstanding
Bonds on the next interest payment date, together with any fees and charges ofthe Paying Agent and
Registrar therefor. Moneys in the Interest Account may be used only for the purposes set forth in this
paragraph (a).
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19
(b) Principal Account: A portion of the Assessments which shall be
allocable to the Amortization Installments or the principal of the Assessments as will be sufficient to
pay the Amortization Installments or the principal amount of the Outstanding Bonds which will
mature and otherwise become due on the next July 1. Moneys in the Principal Account may be used
only for the purposes set forth in this paragraph.
(2) (a) Prepayment Principal as received shall be deposited into the
Prepayment Account and applied to the extraordinary mandatory redemption of Bonds on the next
interest payment date as provided for in the Bonds.
(b) Delinquent Assessment Principal shall be deposited into the Principal
Account.
( c) Delinquent Assessment Interest shall be deposited into the Interest
Account.
(3) The balance of any moneys remaining in the Revenue Fund after the above
required payments have been made may be used for any lawful purpose; provided, however, that
none of said money shall be used for any purposes other than those hereinabove specified unless all
current payments, including any deficiencies for prior payments, have been made in full and unless
the Issuer shall have complied fully with all the covenants and provisions of this Resolution.
(4) The Bond Service Fund, the Revenue Fund and any other special funds herein
established and created shall be deemed to be held in trust for the purposes provided herein for such
funds. The moneys in all such funds shall be continuously secured in the same manner as state and
municipal deposits are authorized to be secured by the laws of the State of Florida.
Moneys in any fund or account created hereunder shall be invested and reinvested in
Permitted Investments which mature not later than the dates on which the moneys on deposit therein
will be needed for the purpose of such fund. All income on such investments, except as otherwise
provided, shall be deposited in the respective funds and accounts from which such investments were
made and be used for the purposes thereof unless and until the maximum required amount is on
deposit therein, and thereafter shall be deposited in the Revenue Fund.
(5) In determining the amount of any of the payments required to be made
pursuant to this Section, credit may be given for all investment income accruing to the respective
funds and accounts described herein, except as otherwise provided.
(6) The cash required to be accounted for in each of the funds and accounts
described in this Section may be deposited in a single bank account, provided that adequate
accounting records are maintained to reflect and control the restricted allocation of the cash on
deposit therein for the various purposes of such funds and accounts as herein provided. The
designation and establishment of the various funds in and by this Resolution shall not be construed to
require the establishment of any completely independent, self-balancing funds as such term is
{OR980912;4}
20
commonly defined and used in governmental accounting, but rather is intended solely to constitute
an earmarking of certain revenues and assets for certain purposes and to establish certain priorities
for application of such revenues and assets as herein provided.
(C) ENFORCEMENT OF PAYMENT OF ASSESSMENTS. The Issuer will assess, levy,
collect or cause to be collected and enforce the payment of Assessments in the manner prescribed by
all resolutions, ordinances or laws thereunto appertaining at times and in amounts as shall be
necessary in order to pay, when due, the principal of and interest on the Bonds. Upon the due date of
the Assessments, the Issuer shall diligently proceed to collect the same and shall exercise all legally
available remedies to enforce such collections now or hereafter available under State law.
(D) DELINQUENT ASSESSMENTS. Ifthe owner of any lot or parcel ofland shall be
delinquent in the payment of any Assessment, then such Assessment shall be enforced in accordance
with applicable law, including but not limited to the sale of tax certificates and tax deeds as regards
such delinquent Assessment.
(E) OTHER OBLIGA nONS PAY ABLE FROM PLEDGED REVENUES. The Issuer
will not issue or incur any obligations payable from the Pledged Revenues nor voluntarily create or
cause to be created any debt, lien, pledge, assignment, encumbrance or other charge upon such
Pledged Revenues except for fees, commissions, costs, and other charges payable to the property
appraiser or to the tax collector pursuant to Florida law which may be a charge against the
Assessments.
(F) RE-ASSESSMENTS. If any Assessment shall be either in whole or in part annulled,
vacated or set aside by the judgment of any court, or the Issuer shall be satisfied that any such
Assessment is so irregular or defective that it cannot be enforced or collected, or if the Issuer shall
have omitted to make such Assessment when it might have done so, the Issuer shall either: (i) take
all necessary steps to cause a new Assessment to be made for the whole or any part of such
improvement or against any property benefited by such improvement; or (ii) in its sole discretion,
make up the amount of such Assessment from legally available moneys, which moneys shall be
deposited into the Revenue Fund. In case any such subsequent Assessment shall also be annulled, the
Issuer shall obtain and make other Assessments until a valid Assessment shall be made.
(G) ANNUAL AUDIT. The Issuer shall provide to each Holder a copy of the annual
audited financial statements ofthe Issuer. The Issuer shall be permitted to make a reasonable charge
for furnishing such audited financial statements to each Holder.
(H) BOOKS AND RECORDS. The Issuer shall keep books, records and accounts ofthe
Pledged Revenues, and the Holders of any Bonds Outstanding or the duly authorized representatives
thereof shall have the right at all reasonable times to inspect all books, records and accounts of the
Issuer relating thereto.
(I) NO IMPAIRMENT. The Issuer will not enter into any contract or contracts, nor take
any action, the results of which might impair the right of the Holders hereunder.
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21
(J) COLLECTION OF ASSESSMENTS. The Issuer shall collect all Assessments in
accordance with the provisions of Sections 197.3632 and 197.3635, Florida Statutes as amended
from time to time or if such method is unavailable to the Issuer then in accordance with other
applicable law.
(K) BUDGET AND OTHER FINANCIAL INFORMATION. The Issuer shall:
(a) Within 183 days following the end of each Fiscal Year of the Issuer, provide
the Purchaser with a copy of the Issuer's audited financial statements for the preceding Fiscal Year;
and
(b) Provide the Purchaser with a copy of its annual budget and capital
improvement plan within 30 days of the adoption of the same.
The information described in (a) and (b) above shall be provided to the Purchaser in printed
form not electronic form.
SECTION 21. DEFAULTS; EVENTS OF DEFAULT AND REMEDIES. Except as
provided below, if any of the following events occur it is hereby defined as and declared to be and to
constitute an "Event of Default":
(1) Default in the due and punctual payment of any interest on the Bonds;
(2) Default in the due and punctual payment of the principal of and premium, if any, on
any Bond, at the stated maturity thereof, or upon proceedings for redemption thereof;
(3) Default in the performance or observance of any other of the covenants, agreements or
conditions on the part ofthe Issuer contained in this Resolution or in the Bonds and the continuance
thereof for a period of thirty (30) days after written notice to the Issuer given by the Holders of not
less than twenty-five percent (25%) of aggregate principal amount of Bonds then Outstanding
(provided, however, that with respect to any obligation, covenant, agreement or condition which
requires performance by a date certain, if the Issuer performs such obligation, covenant, agreement or
condition within thirty (30) days of written notice as provided above, the default shall be deemed to
be cured);
(4) Failure by the Issuer promptly to remove any execution, garnishment or attachment of
such consequence as will materially impair its ability to carry out its obligations hereunder; or
(5) Any act of bankruptcy or the rearrangement, adjustment or readjustment of the
obligations of the Issuer under the provisions of any bankruptcy or moratorium laws or similar laws
relating to or affecting creditors' rights.
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22
The term "default" shall mean default by the Issuer in the performance or observance of any
of the covenants, agreements or conditions on its part contained in this Resolution, any supplemental
resolution or in the Bonds, exclusive of any period of grace required to constitute a default or an
"Event of Default" as hereinabove provided.
Any Holder of Bonds issued under the provisions hereof or any trustee acting for the Holders
of such Bonds, may either at law or in equity, by suit, action, mandamus or other proceedings in any
court of competent jurisdiction, protect and enforce any and all rights, including the right to the
appointment of a receiver, existing under State or federal law, or granted and contained herein, and
may enforce and compel the performance of all duties required herein or by any applicable law to be
performed by the Issuer or by any officer thereof.
The foregoing notwithstanding:
(1) No remedy conferred upon or reserved to the Bondholders is intended to
be exclusive of any other remedy, but each remedy shall be cumulative and shall be in addition to
any other remedy given to the Bondholders hereunder.
(2) No delay or omission to exercise any right or power accruing upon any default
or Event of Default shall impair any such right or power or shall be construed to be a waiver of any
such default or acquiescence therein, and every such right and power may be exercised as often as
may be deemed expedient.
(3) No waiver of any default or Event of Default hereunder by the Bondholders
shall extend to or shall affect any subsequent default or Event of Default or shall impair any rights or
remedies consequent thereon.
(4) Acceleration of the payment of principal of and interest on the Bonds shall not
be a remedy hereunder in the case of an Event of Default.
On the occurrence of an Event of Default, to the extent such rights may then lawfully be
waived, neither the Issuer nor anyone claiming through or under it, shall set up, claim or seek to take
advantage of any stay, extension or redemption laws now or hereafter in force, in order to prevent or
hinder the enforcement ofthis Resolution, and the Issuer, for itself and all who may claim through or
under it, hereby waives, to the extent it may lawfully do so, the benefit of all such laws and all right
of redemption to which it may be entitled.
SECTION 22. AMENDING AND SUPPLEMENTING OF RESOLUTION
WITHOUT CONSENT OF HOLDERS OF BONDS. The Issuer, from time to time and at any time
and without the consent or concurrence of any Holder of any Bonds, may adopt a resolution
amendatory hereof or supplemental hereto, if the provisions of such supplemental resolution shall
not adversely affect the rights ofthe Holders ofthe Bonds then Outstanding, for anyone or more of
the following purposes:
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23
(1) To make any changes or corrections in this Resolution as to which the Issuer shall
have been advised by counsel that are required for the purpose of curing or correcting any ambiguity
or defective or inconsistent provisions or omission or mistake or manifest error contained in this
Resolution, or to insert in this Resolution such provisions clarifying matters or questions arising
under this Resolution as are necessary or desirable;
(2) To add additional covenants and agreements ofthe Issuer for the purpose of further
securing the payments of the Bonds;
(3) To surrender any right, power or privilege reserved to or conferred upon the Issuer by
the terms of this Resolution;
(4) To confirm as further assurance any covenant created or to be created by the
provisions of this Resolution;
(5) To grant to or confer upon the Holders any additional right, remedies, powers,
authority or security that lawfully may be granted to or conferred upon them;
(6) To assure compliance with federal "arbitrage" and other applicable tax provisions in
effect from time to time; or
(7) To modify any ofthe provisions ofthis Resolution in any other aspects provided that
such modifications shall not be effective until after the Bonds Outstanding at the time such
supplemental resolution is adopted shall cease to be Outstanding, or until the holders thereof consent
thereto pursuant to Section 23 hereof, and any Bonds issued subsequent to any such modification
shall contain a specific reference to the modifications contained in such supplemental resolution.
Except for supplemental resolutions providing for the issuance of Bonds pursuant hereto, the
Issuer shall not adopt any supplemental resolution authorized by the foregoing provisions of this
Section unless in the opinion of Bond Counsel the adoption of such supplemental resolution is
permitted by the foregoing provisions of this Section.
SECTION 23. AMENDMENT OF RESOLUTION WITH CONSENT OF
HOLDERS OF BONDS. Except as provided in Section 22 hereof, no material modification or
amendment of this Resolution or of any resolution supplemental hereto shall be made without the
consent in writing of the Holders of fifty-one percent or more in the principal amount of the Bonds
so affected and then Outstanding. No modification or amendment shall permit a change in the
maturity of such Bonds or a reduction in the rate of interest thereon or in the amount of the principal
obligation thereof or affecting the promise of the Issuer to pay the principal of and interest on the
Bonds as the same shall become due or reduce the percentage ofthe Holders of the Bonds required to
consent to any material modification or amendment hereof without the consent of the Holder or
Holders of all such Bonds.
SECTION 24.
FEDERAL INCOME TAX COVENANTS.
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24
(1 ) The Issuer covenants with the Holders ofthe Bonds that it shall not use the proceeds
of such Bonds in any manner which would cause the interest on such Bonds to be or become
includable in the gross income of the Holder thereof for federal income tax purposes.
(2) The Issuer covenants with the Holders of the Bonds that neither the Issuer nor any
Person under its control or direction will make any use of the proceeds of such Bonds (or amounts
deemed to be proceeds under the Code) in any manner which would cause such Bonds to be
"arbitrage bonds" within the meaning of Section 148 of the Code, and neither the Issuer nor any other
Person shall do any act or fail to do any act which would cause the interest on such Bonds to become
includable in the gross income of the Holder thereof for federal income tax purposes.
(3) The Issuer shall payor cause to be paid to the United States Government any amounts
required by Section 148( f) of the Code and the regulations thereunder (the "Regulations"). In order to
insure compliance with the rebate provisions of Section I 48(f) of the Code with respect to the Bonds,
the Issuer hereby creates the "City of Winter Springs Special Assessment Rebate Fund" (hereinafter
sometimes called the "Rebate Fund") to be held by the Issuer. The Rebate Fund need not be
maintained so long as the Issuer timely satisfies its obligation to pay any rebatable earnings to the
United States Treasury; however, the Issuer may, as an administrative convenience, maintain and
deposit funds in the Rebate Fund from time to time. Any moneys held in the Rebate Fund shall not
be available to pay debt service on the Bonds. Moneys in the Rebate Fund (including earnings and
deposits therein) shall be held for future payment to the United States Government as required by the
treasury regulations and as set forth in instructions of Bond Counsel delivered to the Issuer upon
issuance of such Bonds.
SECTION 25. DEFEASANCE. The covenants and obligations of the Issuer shall be
defeased and discharged under terms of this Resolution as follows:
(A) If the Issuer shall payor cause to be paid, or there shall otherwise be paid, to the
Holders of all Bonds the principal, redemption premium, if any, and interest due or to become due
thereon, at the times and in the manner stipulated herein and in the Bonds, then the covenants,
agreements and other obligations of the Issuer to the Bondholders, shall thereupon cease, terminate
and become void and be discharged and satisfied. If the Issuer shall payor cause to be paid, or there
shall otherwise be paid, to the Holders of any Outstanding Bonds the principal and interest due or to
become due thereon, at the times and in the manner stipulated herein, such Bonds shall cease to be
entitled to any benefit under this Resolution, and all covenants, agreements and obligations of the
Issuer to the Holders of such Bonds shall thereupon cease, terminate and become void and be
discharged and satisfied.
(B) The Bonds and interest due or to become due for the payment or redemption of which
moneys shall have been set aside and shall be held in trust (through deposit by the Issuer offunds for
such payment or redemption or otherwise) at the maturity or redemption date thereof shall be deemed
to have been paid within the meaning and with the effect expressed in paragraph (A) ofthis Section
25. Any Outstanding Bonds shall prior to the maturity or redemption date thereofbe deemed to have
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25
been paid within the meaning and with the effect expressed in paragraph (A) ofthis Section if (i) in
case of said Bonds are to be redeemed on any date prior to their maturity, the Issuer shall have given
to the escrow agent instructions accepted in writing by the escrow agent to notify Holders of
Outstanding Bonds in the manner required herein of the redemption of such Bonds on said date and
(ii) there shall have been deposited with the escrow agent either moneys in an amount which shall be
sufficient, or Acquired Obligations (including any Acquired Obligations issued or held in book-entry
form on the books of the Department of the Treasury of the United States) the principal of and the
interest on which when due will provide moneys which, together with the moneys, if any, deposited
with the escrow agent at the same time, shall be sufficient, to pay when due the principal of,
premium, if any, and interest due and to become due on said Bonds on or prior to the redemption
date or maturity date thereof, as the case may be.
SECTION 26. BANK QUALIFIED. The Issuer designates the Bonds as a "qualified
tax-exempt obligation" within the meaning of Section 265(b)(3) of the Internal Revenue Code of
1986, as amended (the "Code"). The Issuer does not reasonably anticipate that the Issuer, any
subordinate entities ofthe Issuer, and issuers of debt that issue "on behalf" of the Issuer, will during
either calendar year 2006 issue more than $10,000,000 of "tax-exempt" obligations, exclusive of
those obligations described in Section 265(b)(3)(C)(ii) of the Code.
SECTION 27. OTHER ACTIONS. The Mayor, the Deputy Mayor/Commissioner,
the City Manager, the City Attorney, the City Clerk including any Deputy City Clerk and the Finance
Director (collectively the "Issuer Officers"), Akerman Senterfitt as Bond Counsel, and Public
Financial Management, Inc., as the Issuer's Financial Advisor, are hereby authorized and directed to
take all actions necessary or desirable in connection with the issuance and delivery of the Bonds and
the consummation of all transactions in connection therewith. The Issuer Officers are hereby
authorized and directed to execute all necessary or desirable certificates, documents, papers, and
agreements for the undertaking and fulfillment of all transactions referred to in or contemplated by
this Resolution.
SECTION 28. NEGOTIATED SALE; ACCEPTANCE OF PURCHASER'S
COMMITMENT. Due to the complex character of the security for the Bonds, the critical importance
of the timing of the sale of the Bonds and due to the willingness of the Purchaser to purchase the
Bonds at rates favorable to the Issuer, it is hereby determined that it is in the best interest of the
public and the Issuer to sell the Bonds at a negotiated sale to the Purchaser. The Issuer hereby accepts
the offer from the Purchaser to purchase the Bonds, subject to the terms and conditions set forth in
the Purchaser's Commitment (the "Commitment") dated February 15, 2006, attached hereto as
Exhibit" A" which Commitment is hereby accepted by the City.
SECTION 29. SEVERABILITY. If anyone or more of the covenants, agreements or
provisions ofthis Resolution should be held contrary to any express provision oflaw or contrary to
the policy of express law, though not expressly prohibited, or against public policy, or shall for any
reason whatsoever be held invalid or shall in any manner be held to adversely affect the validity of
the Bonds, then such covenants, agreements or provisions shall be null and void and shall be deemed
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26
separate from the remaining covenants, agreements or provisions of this Resolution or of the Bonds
issued hereunder.
SECTION 30. GENERAL AUTHORITY. The members ofthe City Commission of
the Issuer and the Issuer's officers, attorneys and other agents and employees are hereby authorized to
perform all acts and things required of them by this Resolution or desirable or consistent with the
requirements hereof for the full, punctual and complete performance of all of the terms, covenants
and agreements contained in the Bonds and this Resolution, and they are hereby authorized to
execute and deliver all documents which shall be required by bond counselor the initial purchasers
ofthe Bonds to effectuate the sale of the Bonds to said initial purchasers.
SECTION 31. NO PERSONAL LIABILITY. Neither the members of the City
Commission of the Issuer nor any person executing the Bonds shall be personally liable therefor or
be subject to any personal liability or accountability by reason of the issuance thereof.
SECTION 32. REPEAL OF INCONSISTENT INSTRUMENTS. Any Resolutions, or
parts thereof, in conflict herewith are hereby repealed to the extent of such conflict.
SECTION 33. HEADINGS NOT PART HEREOF. The headings preceding the
several articles and sections hereof shall be solely for convenience of reference and shall not
constitute a part of this Resolution or affect its meaning, construction or effect.
SECTION 34. APPROVAL OF PRIOR ACTIONS. All actions take to date by the
City Commission in furtherance ofthe issuance ofthe Bonds and the levying ofthe assessments are
hereby approved, confirmed and ratified.
SECTION 35. WAIVER OF JURY TRIAL. To the extent permitted by applicable
law, each of the Issuer and each registered owner including the Purchaser, knowingly, voluntarily
and intentionally waives any right each may have to a trial by jury in respect of any litigation based
on, or arising out of, under or in connection with this Resolution, the Bonds or any agreement
contemplated to be executed in connection with this Resolution or any course of conduct, course of
dealing, statements (whether verbal or written) or actions of any party with respect hereto. This
provision is a material inducement to the Purchaser to purchase this Bonds.
SECTION 36. EFFECTIVE DATE. The provisions of this Resolution shall take
effect immediately upon its passage.
Adopted the 2ih day of February, 2006.
(SEAL)
CITY COMMISSION OF THE CITY OF
WINTER SPRINGS, FLORIDA
ATTEST:
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27
City Clerk
Approved as to form:
City Attorney
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Mayor
28
EXHIBIT "A"
Purchaser's Commitment Letter
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RESOLUTION NO. 2006-14
A RESOLUTION OF THE CITY OF WINTER SPRINGS, FLORIDA
AUTHORIZING THE ISSUANCE BY THE CITY OF ITS $430,000 IN
AGGREGATE PRINCIPAL AMOUNT OF SPECIAL ASSESSMENT
REVENUE BOND, SERIES 2006 (TUSCA WILLA PHASE II ASSESSMENT
AREA), TO FINANCE A PART OF THE COST OF THE REMOVAL OF
EXISTING STREET SIGNAGE AND STREETLIGHTS AND
INSTALLATION OF NEW DECORATIVE STREET LAMPPOSTS AND
SIGNAGE ALONG THE COLLECTOR ROADS IN THE TUSCA WILLA
(pHASE II) ASSESSMENT AREA AND TO PAY THE COSTS OF ISSUANCE
OF THE BONDS; PLEDGING TO SECURE PAYMENT OF THE
PRINCIPAL OF AND INTEREST ON THE BONDS, THE PROCEEDS OF
THE NON-AD VALOREM SPECIAL ASSESSMENTS LEVIED BY THE
CITY AGAINST PROPERTY WITHIN SUCH ASSESSMENT AREA
SPECIALLY BENEFITED BY SUCH PROJECT; DETERMINING THE
NEED FOR A NEGOTIATED SALE OF THE BONDS AND ACCEPTING
THE COMMITMENT OFWACHOVIABANK,NATIONAL ASSOCIATION
TO PURCHASE THE BONDS; APPROVING FORM OF SAID BONDS;
AUTHORIZING CERTAIN OFFICIALS AND EMPLOYEES OF CITY OF
WINTER SPRINGS, FLORIDA TO TAKE ALL ACTIONS REQUIRED IN
CONNECTION WITH THE ISSUANCE, SALE AND DELIVERY OF SAID
BONDS; DESIGNATING THE BONDS AS BANK QUALIFIED;
APPOINTING THE PAYING AGENT AND REGISTRAR FOR THE BONDS;
MAKING CERTAIN COVENANTS AND AGREEMENTS FOR THE
BENEFIT OF THE HOLDERS OF THE BONDS; AND PROVIDING AN
EFFECTIVE DATE.
BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS,
FLORIDA:
SECTION 1. AUTHORITY FOR THIS RESOLUTION. This Resolution is adopted
pursuant to Chapter 166, Florida Statutes, Chapter 72- 718, Laws of Florida, Special Acts of 1972 as
amended and supplemented, being the Charter of the City of Winter Springs, Florida (the "City"),
Ordinance No. 98-704 of the City and other applicable provisions of law.
SECTION 2. DEFINITIONS. Unless the context otherwise requires, the terms
defined in this Resolution shall have the meanings specified in this section. Words importing
singular number shall include the plural number in each case and vice versa, and words importing
persons shall include firms and corporations.
"Acquired Obligations" shall mean and include any of the following securities, if and to the extent
the same are at the time legal for investment of funds of the Issuer:
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1
(1) any bonds or other obligations which as to principal and interest constitute direct
obligations of, or are unconditionally guaranteed by, the United States of America, including
obligations of any Federal agency or corporation which has been or may hereafter be created
pursuant to an act of Congress as an agency or instrumentality of the United States of America to the
extent unconditionally guaranteed by the United States of America or any other evidences of an
ownership interest in obligations or in specified portions thereof (which may consist of specified
portions of the interest thereon) of the character described in this clause (i) held by a bank or trust
company as custodian, under which the owner of the investment is the real party in interest and has
the right to proceed directly and individually against the obligor on the obligations described in this
clause (i), and which underlying obligations are not available to satisfy any claim of the custodian or
any person claiming through the custodian or to whom the custodian may be obligated; and
(2) any bonds or other obligations of (a) the State of Florida or any governmental unit
thereof or (b) any other state ofthe United States or governmental unit thereof, the interest on which
is excluded from gross income for federal income tax purposes and which are rated at such time in
the then highest rating category of two or more nationally recognized municipal rating agencies; and
(3) any bonds or other obligations of any state of the United States of America or
of any agency, instrumentality or local governmental unit of any such state (a) which are not callable
at the option of the obligor prior to maturity or as to which irrevocable notice has been given by the
obligor to call such bonds or obligations on the date specified in the notice, (b) which are fully
secured as to principal and interest and redemption premium, if any, by a fund consisting only of
cash or bonds or other obligations of the character described in clause (i) hereof which fund may be
applied only to the payment of such principal of and interest and redemption premium, if any, on
such bonds or other obligations on the maturity date or dates thereof or the specified redemption date
or dates pursuant to such irrevocable instructions, as appropriate, and ( c) as to which the principal of
and interest on the bonds and obligations of the character described in clause (i) hereof which have
been deposited in such fund along with any cash on deposit in such fund is sufficient to pay principal
of and interest and redemption premium, if any, on the bonds or other obligations described in this
clause (iii) on the maturity date or dates thereof or on the redemption date or dates specified in the
irrevocable instructions referred to in subclause (a) ofthis clause (iii), as appropriate.
"Amortization Installment" shall mean the payments contained in the Bond under the heading
"Amortization Installment" due on each July 1, commencing July 1, 2007.
"Assessment Area" shall mean that area within the City designated as the Tuscawilla (Phase
II) Assessment Area pursuant to City Resolution No. 2005-43 as amended and supplemented.
"Assessments" shall mean the proceeds to be derived from the Improvement Assessments
imposed and levied by the City pursuant to City Resolution No. 2005-40 against the property within
the Assessment Area to be specially benefitted by the construction ofthe Project, including interest
on such Assessments and any penalties thereon and moneys received upon the foreclosure of the
liens of any such Assessments, but excluding moneys recovered for the expense of collecting
Assessments.
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2
"Bond Counsel" shall mean Akerman Senterfitt or any other attorney at law or firm of
attorneys of nationally recognized standing in matters pertaining to the exclusion from gross income
for federal income tax purposes of interest on obligations issued by states and political subdivisions,
and duly admitted to practice law before the highest court of any state of the United States of
America.
"Bond Service Requirement" shall mean, for any Bond Year, the amount of principal of or
Amortization Installments and interest due on the Bonds for such Bond Year.
"Bond Year" shall mean the year commencing on July 2 of a year and ending on July I of the
following year.
"Bonds" shall mean the Special Assessment Revenue Bonds, Series 2006 (Tuscawilla Phase
II Assessment Area) herein authorized to be issued herein.
"City Attorney" shall mean the City Attorney ofthe Issuer.
"City Manager" shall mean the City Manager of the Issuer.
"Clerk" shall mean the City Clerk of the Issuer.
"Construction Fund" shall mean the Construction Fund created and established pursuant to
Section 17 of this Resolution.
"Delinquent Assessment Interest" shall mean the interest portion of the Assessments
deposited with the Issuer after the date on which such interest portion of the Assessments has
become due and payable.
"Delinquent Assessment Principal" shall mean the principal portion of the Assessments
deposited with the Issuer after the date on which such principal portion of the Assessments has
become due and payable.
"Finance Director" shall mean the Finance Director of the Issuer.
"Fiscal Year" shall mean the period commencing on October 1 of each year and ending on the
next succeeding September 30 or such other annual period as may be prescribed by law from time to
time for the Issuer.
"Holder of Bonds " or "Bondholders" or any similar term shall mean any persons who shall be
the registered owner of any outstanding Bonds.
"Issuer" or "City" shall mean the City of Winter Springs, Florida.
"Outstanding" or "Bonds Outstanding" shall mean all Bonds which have been issued pursuant
to this Resolution, except:
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3
(i) Bonds canceled after purchase in the open market or because of payment at or
redemption prior to maturity;
(ii) Bonds for the payment or redemption of which cash funds or Acquired
Obligations or any combination thereof shall have been theretofore irrevocably set aside in a special
account with an escrow agent (whether upon or prior to the maturity or redemption date of any such
Bonds) in an amount which, together with earnings on such Acquired Obligations, will be sufficient
to pay the principal of and interest on such Bonds at maturity or upon their earlier redemption;
provided that, if such Bonds are to be redeemed before the maturity thereof, notice of such
redemption shall have been given according to the requirements of this Resolution or irrevocable
instructions directing the timely publication of such notice and directing the payment of the principal
of and interest on all such Bonds at such redemption dates shall have been given; and
(iii) Bonds which are deemed paid pursuant to this Resolution or in lieu of which
other Bonds have been issued under Sections 11 and 13 hereof.
"Paying Agent" shall mean as to the Bonds, the City.
"Permitted Investments" shall mean investments authorized from time to time by applicable
laws of the State of Florida for deposit or purchase by the Issuer for the investment of its funds.
"Person" shall mean an individual, a corporation, a partnership, an association, a joint stock
company, a trust, any unincorporated organization or governmental entity.
"Pledged Revenues" shall mean the Assessments, and until applied in accordance with the
provisions of this Resolution, the proceeds of the Bonds and all moneys including investments, in the
funds and accounts established hereunder, except the Rebate Fund.
"Prepayment Principal" shall mean the excess amount of the principal portion of the
Assessments received by the Issuer over the principal portion of the Assessments then due, but shall
not include Delinquent Assessment Principal.
"Project" shall mean the capital cost ofthe Tuscawilla (Phase II) Improvement Project all as
described in City Resolution No. 2005-40 as the same may be amended or supplemented from time
to time.
"Project Costs" shall mean all costs authorized to be paid from the Construction Fund
pursuant to Section 17 hereofto the extent permitted under the laws ofthe State and the ordinances
and resolutions ofthe City. It is intended that this definition be broadly construed to encompass all
costs, expenses and liabilities of the Issuer related to the Project which on the date of this Resolution
or in the future shall be permitted to be funded with the proceeds of the Bonds pursuant to the laws
of the State.
"Purchaser" shall mean Wachovia Bank, National Association.
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4
"Rebate Fund" shall mean the Rebate Fund created pursuant to Section 24 of this Resolution.
"Redemption Price" shall mean with respect to any Bond or portion thereof, the principal
amount or portion thereof, plus the applicable premium, if any, payable upon redemption thereof
pursuant to such Bond or this Resolution.
"Registrar" shall mean the City, and any other Person which may at any time be substituted in
its place pursuant to a supplemental resolution.
"Resolution" shall mean this resolution as from time to time may be amended or
supplemented, in accordance with the terms hereof.
"State" shall mean the State of Florida.
The terms "herein," "hereunder," "hereby," "hereto," "hereof' and any similar terms shall
refer to this Resolution; the term "heretofore" shall mean before the date of adoption of this
Resolution; and the term "hereafter" shall mean after the date of adoption of this Resolution.
Words importing the masculine gender include every other gender. Words importing the
singular number include the plural number, and vice versa.
SECTION 3.
FINDINGS. It is hereby ascertained, determined and declared that:
(1) It is in the best interests of the Issuer and the residents thereof that the Issuer authorize
the issuance of the Bonds for the purpose of designing, permitting, acquiring and constructing the
Project.
(2) The Issuer has legally imposed the Assessments.
(3) The principal of and interest on the Bonds and all other payments hereunder will be
secured solely by the Pledged Revenues. The Issuer shall never be required to use any ad valorem
taxes for the payment of the Bonds. The Bonds shall not constitute a pledge ofthe faith and credit of
the Issuer, nor shall the Bondholders have any lien or encumbrance on the Project or upon any other
property of the Issuer except the Pledged Revenues.
(4) The Pledged Revenues have not been pledged or encumbered in any manner.
SECTION 4. AUTHORIZATION OF DESIGN, PERMITIING, ACQUISITION
AND CONSTRUCTION OF THE PROJECT. There is hereby authorized the design, permitting,
acquisition and construction ofthe Project.
SECTION 5. THIS RESOLUTION TO CONSTITUTE CONTRACT. In
consideration of the purchase and acceptance of any or all of the Bonds by those who shall hold the
same from time to time, the provisions ofthis Resolution shall be deemed to be and shall constitute a
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5
contract between the Issuer and the Owners from time to time of the Bonds. The pledge made in this
Resolution and the provisions, covenants and agreements herein set forth to be performed by or on
behalf of the Issuer shall be for the equal benefit, protection and security of the Owners of any and all
of the Bonds. All of the Bonds, regardless of the time or times of their issuance or maturity, shall be
of equal rank without preference, priority or distinction of any of the Bonds over any other thereof
except as expressly provided in or pursuant to this Resolution.
SECTION 6. AUTHORIZATION OF BONDS. Subject and pursuant to the
provisions hereof, obligations of the Issuer to be known as "Special Assessment Revenue Bonds,
Series 2006 (Tuscawilla Phase II Assessment Area)," are authorized to be issued in the aggregate
principal amount of $430,000.
SECTION 7. DESCRIPTION OF BONDS. The Bonds shall be issued in fully
registered form in substantially the form set forth in Section 15 hereof and otherwise in accordance
with the commitment of the Purchaser attached hereto.
Each Bond shall bear interest from the interest date next preceding the date on which it is
authenticated, unless authenticated on an interest payment date, in which case it shall bear interest
from such interest payment date, or, unless authenticated prior to the first interest payment date, in
which case it shall bear interest from its date; provided, however, that if at the time of authentication
payment of any interest which is due and payable has not been made, such Bond shall bear interest
from the date to which interest shall have been paid.
The principal of and the interest on the Bonds shall be payable in any coin or currency of the
United States of America which on the respective dates of payment thereof is legal tender for the
payment of public and private debts. The interest on the Bonds shall be payable by the Paying Agent
on each interest payment date to the Person appearing on the registration books of the Issuer
hereinafter provided for as the registered Owner thereof on the 15th day of the calendar month
immediately preceding the applicable interest payment date, by check or draft mailed to such
registered Owner at his address as it appears on such registration books or by wire transfer or other
means mutually acceptable to the City and the Owner. Payment of the principal of all Bonds shall be
made upon the presentation and surrender of such Bonds as the same shall become due and payable.
SECTION 8. EXECUTION OF BONDS. The Bonds shall be signed by, or bear the
facsimile signature ofthe Mayor or Deputy Mayor ofthe Issuer, and shall be attested by, or bear the
facsimile signature of, the Clerk or any Deputy Clerk and a facsimile ofthe official seal ofthe Issuer
shall be imprinted on the Bonds.
In case any officer whose signature or a facsimile of whose signature shall appear on any
Bonds shall cease to be such officer before the delivery of such Bonds, such signature or such
facsimile shall nevertheless be valid and sufficient for all purposes the same as ifhe has remained in
office until such delivery. Any Bond may bear the facsimile signature of or may be signed by such
persons who, at the actual time of the execution of such Bond, shall be the proper officers to sign
such Bonds although, at the date of such Bond, such persons may not have been such officers.
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6
SECTION 9. AUTHENTICATION OF BONDS. Only such of the Bonds as shall
have endorsed thereon a certificate of authentication substantially in the form hereinbelow set forth,
duly executed by the Registrar, as authenticating agent, shall be entitled to any benefit or security
under this Resolution. No Bond shall be valid or obligatory for any purpose unless and until such
certificate of authentication shall have been duly executed by the Registrar, and such certificate of
the Registrar upon any such Bond shall be conclusive evidence that such Bond has been duly
authenticated and delivered under this Resolution. The Registrar's certificate of authentication on any
Bond shall be deemed to have been duly executed if signed by an authorized officer of the Registrar,
but it shall not be necessary that the same officer sign the certificate of authentication of all of the
Bonds that may be issued hereunder at anyone time.
SECTION 10. EXCHANGE OF BONDS. Any Bonds, uponsurrenderthereofatthe
office of the Registrar, together with an assignment duly executed by the Bondholder or his attorney
or legal representative in such form as shall be satisfactory to the Registrar, may, at the option ofthe
Owner, be exchanged for an aggregate principal amount of Bonds equal to the principal amount of
the Bond or Bonds so surrendered.
The Registrar shall make provision for the exchange of Bonds at the designated office of the
Registrar. The Issuer and Registrar shall not be obligated to make any exchange of Bonds during the
fifteen (15) days next preceding an interest payment date or in the case of any proposed redemption
of Bonds during the fifteen (15) days next preceding the redemption date established for such Bonds.
SECTION 11. NEGOTIABILITY, REGISTRATION AND TRANSFER OF BONDS.
The Registrar shall keep books for the registration of and for the registration of transfers of Bonds as
provided in this Resolution. The transfer of any Bonds may be registered only upon such books and
only upon surrender thereof to the Registrar together with an assignment duly executed by the Owner
or his attorney or legal representative in such form as shall be satisfactory to the Registrar. Upon any
such registration oftransfer, the Issuer shall execute and the Registrar shall authenticate and deliver
in exchange for such Bond, a new Bond or Bonds registered in the name ofthe transferee, and in an
aggregate principal amount equal to the principal amount of such Bond or Bonds so surrendered. The
Issuer and Registrar shall not be obligated to make any transfer of Bonds during the fifteen (15) days
next preceding an interest payment date or in the case of any proposed redemption of Bonds during
the fifteen (15) days next preceding the redemption date established for such Bonds.
In all cases in which Bonds shall be exchanged, the Issuer shall execute and the Registrar
shall authenticate and deliver, at the earliest practicable time, a new Bond or Bonds in accordance
with the provisions of this Resolution. All Bonds surrendered in any such exchange orregistration of
transfer shall forthwith be canceled by the Registrar. The Issuer or the Registrar may make a charge
for every such exchange or registration oftransfer of Bonds sufficient to reimburse it for any tax or
other governmental charge required to be paid with respect to such exchange or registration of
transfer, but no other charge shall be made to any Owner for the privilege of exchanging or
registering the transfer of Bonds under the provisions of this Resolution.
SECTION 12. OWNERSHIP OF BONDS. The Person in whose name any Bond shall
be registered shall be deemed and regarded as the absolute owner thereof for all purposes, and
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7
payment of or on account of the principal (including Amortization Installments) of any such Bond,
and the interest on any such Bonds shall be made only to or upon the order of the registered owner
thereof or his legal representative. All such payments shall be valid and effectual to satisfy and
discharge the liability upon such Bond including the premium, if any, and interest thereon to the
extent of the sum or sums so paid.
SECTION 13. BONDS MUTILATED, DESTROYED, STOLEN OR LOST. In case
any Bond shall become mutilated, or be destroyed, stolen or lost, the Issuer may in its discretion
cause to be executed, and the Registrar shall authenticate and deliver, a new Bond of like date and
tenor as the Bond so mutilated, destroyed, stolen or lost in exchange and substitution for such
mutilated Bond upon surrender and cancellation of such mutilated Bond or in lieu of and substitution
for the Bond destroyed, stolen or lost, and upon the Owner furnishing the Issuer and the Registrar
proof of his ownership thereof and satisfactory indemnity and complying with such other reasonable
regulations and conditions as the Issuer and the Registrar may prescribe and paying such expenses as
the Issuer and the Registrar may incur. All Bonds so surrendered shall be canceled by the Issuer. If
any of the Bonds shall have matured or be about to mature, instead of issuing a substitute Bond, the
Issuer may pay the same, upon being indemnified as aforesaid, and if such Bond be lost, stolen or
destroyed, without surrender thereof.
Any such duplicate Bonds issued pursuant to this Section shall constitute original, additional
contractual obligations on the part of the Issuer whether or not the lost, stolen or destroyed Bonds be
at any time found by anyone, and such duplicate Bonds shall be entitled to equal and proportionate
benefits and rights as to lien on and source and security for payment from the funds, as hereinafter
pledged, to the same extent as all other Bonds issued hereunder.
SECTION 14. PROVISIONS FOR REDEMPTION. The Bonds are redeemable prior
to their stated date of maturity, at the option of the Issuer, as a whole or in part on any date in such
manner as shall be determined by the Issuer at a redemption price of the principal amount to be
redeemed without premium plus accrued interest to the redemption date. The Bonds are also subject
to mandatory redemption from Amortization Installments as provided in the Bonds.
Notice of any optional redemption of Bonds shall be given by the Issuer in a written notice
delivered to the Owner not more than fifteen (15) and not less than five (5) days prior to the specified
redemption date.
SECTION 15. FORM OF BONDS. The text of the Bonds, together with the
certificate of authentication to be endorsed therein, shall be in substantially the following form, with
such omissions, insertions and variations as maybe necessary, desirable, authorized or permitted by
this Resolution, or as may be necessary to comply with applicable laws, rules and regulations of the
United States and of the State in effect upon the issuance thereof.
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8
[FORM OF BOND]
No. R-1
$430,000
UNITED STATES OF AMERICA
STATE OF FLORIDA
COUNTY OF SEMINOLE
CITY OF WINTER SPRINGS
SPECIAL ASSESSMENT REVENUE BOND, SERIES 2006
(TUSCA WILLA PHASE II ASSESSMENT AREA)
MATURITY DATE
July 1, 2021
INTEREST RATE
4.10%
DATED DATE
February 28, 2006
Registered Owner: Wachovia Bank, National Association
Principal Amount: Four Hundred Thirty Thousand Dollars
KNOW ALL MEN BY THESE PRESENTS that the City of Winter Springs, Florida
(hereinafter called the "Issuer) for value received, hereby promises to pay to the order of the
Registered Owner identified above or registered assigns, as herein provided, on the Maturity Date
identified above, upon the presentation and surrender hereof at the office of the City Clerk of the
Issuer, solely from the revenues hereinafter mentioned, the Principal Amount identified above in any
coin or currency of the United States of America which on the date of payment thereof is legal tender
for the payment of public and private debts, and to pay, solely from said sources, to the Registered
Owner hereof interest on said Principal Amount at the Interest Rate per annum identified above on
each January 1 and July 1 commencing January 1, 2007 from the interest payment date next
preceding the date of registration and authentication of this Bond, unless this Bond is registered and
authenticated as of an interest payment date, in which case it shall bear interest from said interest
payment date, or unless this Bond is registered and authenticated prior to January 1, 2007, in which
event this Bond shall bear interest from its dated date. Any payment due on this Bond that is not
made by the due date of such payment shall earn interest from such due date at the Prime Rate
(hereinafter defined) plus two percent (2%) until paid. This Bond may not be issued in
denominations less than the lesser of $1 00,000 or the remaining principal amount thereof.
The interest rate on this Bond shall be subject to adjustment as follows:
(a) Change in Maximum Corporate Tax Rate. If the maximum federal corporate income
tax rate for the Registered Owner (or in the case of another institutional holder of this Bond, such
holder or its holding company) and its subsidiaries (collectively, the "Lender") during any period in
which interest is accruing, shall be other than 35%, then the interest rate on this Bond during such
period shall be modified by multiplying the interest rate on this Bond (as adjusted) by a fraction
equal to (1 - A)/.65 where A equals the maximum marginal corporate income tax rate then in effect.
(b) Alternative Minimum Tax Where Interest on this Bond is a Direct Tax Preference
Item. If the Lender or its parent holding company pays an alternative minimum tax in any tax year
and the interest on this Bond is a direct tax preference item under section 57(a)(5) or any successor
{OR980912;6}
9
provision of the Internal Revenue Code then the interest rate on this Bond for the period during such
tax year in which interest is accruing on this Bond shall be increased during such accrual period by
an amount equal to (A - B) x C where:
(1) A equals the interest rate on this Bond expressed as a percentage;
(2) B equals the Lender's Adjusted Cost of Funds; and
(3) C equals the maximum marginal rate ofthe alternative minimum tax expressed as a
decimal (currently .20).
"Lender's Adiusted Cost of Funds" means the fraction (expressed as a percentage), determined by
the Lender, of the total interest expense of the Lender for each calendar year divided by the total
average adjusted bases of all assets of the Lender during the calendar year as determined under
Section 265(b)(2)(B) of the Code or any successor provision thereto.
(c) Alternative Minimum Tax Where Interest on this Bond is an Indirect Tax Preference
Item. If the Lender or its holding company pays an alternative minimum tax in any tax year and the
interest on this Bond is not a direct tax preference item under section 57(a)(5), but is an indirect tax
preference item because of the application of section 56(g) or any successor provision of the Internal
Revenue Code then the interest rate for the period during such tax year in which interest is accruing
on this Bond shall be increased during such accrual period by an amount to (A - B) x C where:
(1) A equals the interest rate on this Bond expressed as a percentage;
(2) B equals the Lender's Adjusted Cost of Funds; and
(3) C equals 75% of the maximum marginal rate of the alternative minimum tax
expressed as a decimal, or, if the Code is amended to effectively increase or decrease the percentage
of interest on this Bond which is subject to such indirect alternative minimum tax, then C shall equal
the percentage of such interest on this Bond which is effectively subject to such indirect alternative
minimum tax multiplied by the maximum marginal rate ofthe alternative minimum tax expressed as
a decimal.
(d) Loss ofF ederal Income Tax Deduction for State Income Taxes. If the federal income
tax deduction for state income taxes paid on the interest on this Bond during any period is reduced
because of any change in the tax laws or regulations then the interest rate on this Bond shall be
increased during such period by an amount equal to A x B x C x D where:
(1) A equals the fraction (expressed as a decimal) of the total state income tax disallowed
as a result of such tax law change;
(2) B equals the rate ofthe applicable state income tax (expressed as a decimal);
(3) C equals the maximum federal corporate tax rate then in effect for the Lender
(expressed as a decimal); and
(4) D equals the interest rate on this Bond (expressed as a percentage).
(e) Partial Taxability. If the interest on this Bond during any period becomes partially
taxable because of any change in the tax laws or regulations, then the interest rate on this Bond shall
be increased during such period by an amount equal to (A - B) x C where:
(1) A equals the Taxable Rate (expressed as a percentage);
{OR980912;6}
10
(2) B equals the interest rate on this Bond (expressed as a percentage); and
(3) C equals the fraction of the interest on this Bond which has become taxable as the
result of such tax change (expressed as a decimal).
(f) Other Change in Tax Laws. If the tax laws or regulations are amended to cause the
interest on this Bond to be taxable, to be subject to a minimum tax or an alternative minimum tax or
to otherwise decrease the after tax yield on this Bond to the Lender (directly or indirectly, other than
a change described in (a) through (e) above or because of a Determination of Taxability) then the
interest on this Bond shall be adjusted to cause the yield on this Bond, after payment of any increase
in tax, to equal what the yield on this Bond would have been in the absence of such change or
amendment in the tax laws or regulations.
The above adjustments shall be cumulative, but in no event shall the interest rate on this
Bond exceed the maximum permitted by law. The above adjustments to the interest rate on this
Bond shall be effective on the effective date of the applicable change in the tax laws or regulations.
All tax rates and interest rates are expressed as annual rates. However, proper partial adjustment
shall be made if the tax law change is effective after the first day ofthe Lender's tax year or if the
interest on this Bond does not accrue for the entire tax year of the Lender. Adjustments which create
a circular calculation because the interest rate on this Bond is affected by the calculation shall be
carried out sequentially, increasing the interest rate on this Bond accordingly in each successive
calculation using as the new value the increase in the interest rate on this Bond, until the change on
the interest rate on this Bond caused by the next successive calculation of the adjustment is de
minimis. If more than one of paragraphs (a) though (e) apply, then the interest rate on this Bond
shall be adjusted in the order in which listed above.
Non-Bank Qualified Rate
In the event this Bond is not a "qualified tax-exempt obligation" under Section 265(b )(3)(B)
of the Internal Revenue Code, the interest rate on this Bond shall be adjusted to that interest rate
necessary to ensure that the anticipated after tax yield contemplated by the Lender at the time of
original purchase of the Bond is received.
Taxable Rate
Notwithstanding the foregoing, in the event of a "Determination of Taxability" (as
hereinafter defined), this Bond shall bear interest at the rate equal to the Taxable Rate (the "Taxable
Rate"), from and after and retroactively to the date as of which such Determination of Taxability is
made and the Bondholder shall be entitled to such additional interest on this Bond. For purposes
hereof, "Determination ofTaxability" means the circumstance ofthe interest on the Bond becoming
includable for federal income tax purposes in the gross income of the Lender as a consequence of
any act, omission or event whatsoever and regardless of whether the same was within or beyond the
control of the Issuer. A Determination of Taxability will be deemed to have occurred upon (i) the
receipt by the Issuer or the Lender of an original or a copy of an Internal Revenue Service Technical
Advice Memorandum or Statutory Notice of Deficiency which holds that the interest on the Bond is
includable in the gross income ofthe Lender or (ii) the issuance of any public or private ruling ofthe
Internal Revenue Service that the interest on this Bond is includable in the gross income of the
Lender. For all purposes ofthis definition, a Determination of Taxability will be deemed to occur on
the date as of which the interest on the Note is deemed includable in the gross income of the Lender.
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11
In no event, however, shall interest be charged or paid in an amount in excess of the
maximum interest rate permitted to be paid under applicable law.
Additional Definitions
"Prime Rate" means that index rate of interest which the Lender, from time to time
announces as its prime rate, which rate is an index rate for guidance to loan officers and is not
necessarily the best or lowest rate charged borrowing customers of the Lender, or if such rate is no
longer announced, such comparable rate as shall be determined by the Registered Owner.
"Taxable Rate" means a rate equal to the Prime Rate times that percentage which after the
Determination of Taxability will result in the same after-tax yield to the Registered Owner of the
Bond as before said Determination of Taxability.
Optional Redemption
This Bond is redeemable prior to the stated date of maturity, at the option of the Issuer, as a
whole or in part on any date in such manner as shall be determined by the Issuer at a Redemption
Price of the principal amount to be redeemed without premium plus accrued interest to the
redemption date.
Mandatory Redemption
This Bond is subject to mandatory redemption in part by the Issuer by lot prior to its
scheduled maturity in satisfaction of applicable Amortization Installments at a Redemption Price of
100% of the principal amount thereof, without premium, plus accrued interest to the redemption
date, on July 1 ofthe years and in the principal amounts set forth below.
Year Amortization Installment
2007 $16,000
2008 23,000
2009 23,000
2010 24,000
2011 25,000
2012 26,000
2013 28,000
2014 29,000
2015 30,000
2016 31,000
2017 32,000
2018 34,000
2019 35,000
2020 36,000
2021 38,000
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Upon any redemption of this Bond (other than redemptions in accordance with scheduled
Amortization Installments) the Issuer shall cause to be recalculated revised Amortization
Installments recalculated so as to amortize the Outstanding Bond in substantially equal annual
installments of principal and interest over the remaining term of this Bond.
Extraordinary Mandatory Redemption
This Bond is subject to extraordinary mandatory redemption in whole or in part on any
interest payment date and if in part in inverse order of maturity at a redemption price equal to the
principal amount thereof and accrued interest to the date of redemption as a result of deposits of
Prepayment Principal to the Prepayment Account.
Notice of such redemption shall be given in the manner required by the Resolution described
below.
This Bond is one of an authorized issue of Bonds in the aggregate principal amount of
$430,000 of like date, tenor and effect, issued to acquire, construct and erect certain capital projects
within the Tuscawilla (Phase II) Assessment Area (as described in Resolution No. 2005-43 ofthe
Issuer) located within the jurisdiction of the Issuer, all in full compliance with the Constitution and
Statutes of the State of Florida, including particularly Chapter 166, Florida Statutes, the Charter of
the Issuer, Ordinance No. 98-704 of the Issuer and Resolution No. 2006-14 duly adopted by the
Issuer on February 27,2006 (hereinafter collectively called the "Resolution") and is subject to all the
terms and conditions of such Resolution. All capitalized undefined terms used herein shall have the
meaning set forth in the Resolution.
This Bond and the interest hereon are payable solely from and secured by a lien upon and a
pledge of the Pledged Revenues (as defined in the Resolution), all in the manner and to the extent
provided in the Resolution.
This Bond does not constitute a general indebtedness of the Issuer within the meaning of any
constitutional, statutory or charter provision or limitation, and it is expressly agreed by the Owner of
this Bond that such Bondowner shall never have the right to require or compel the exercise ofthe ad
valorem taxing power of the Issuer or taxation of any real or personal property therein for the
payment of the principal of and interest on this Bond or the making of any bond service fund, or
other payments provided for in the Resolution.
It is further agreed between the Issuer and the Owner of this Bond that this Bond and the
indebtedness evidenced hereby shall not constitute a lien or on any property of or in the Issuer, but
shall constitute a lien only on the Pledged Revenues all in the manner provided in the Resolution.
Neither the members of the City Commission of the Issuer nor any person executing this
bond shall be liable personally hereon or be subject liability or accountability by reason of the
issuance hereof.
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13
It is certified that this Bond is authorized by and is issued in conformity with the
requirements of the Constitution and Statutes of the State of Florida.
This Bond is and has all the qualities and incidents of a negotiable instrument under the laws
of the State of Florida but may be transferred by the Bondowner hereof in person or by his attorney
or legal representative at the office of the Registrar but only in the manner and subject to the
conditions provided in the Resolution and upon surrender and cancellation of this Bond.
This Bond shall not be valid or become obligatory for any purpose or be entitled to any
benefit or security under the Resolution until it shall have been authenticated by the execution by the
Registrar of the certificate of authentication endorsed hereon.
IN WITNESS WHEREOF, the City of Winter Springs, Florida, has issued this Bond and
has caused the same to be signed by its Mayor, and countersigned and attested to by its Clerk (the
signatures of the Mayor, and the Clerk being authorized to be facsimiles of such officers' signatures),
and its seal or facsimile thereof to be affixed, unpressed, imprinted, lithographed or reproduced
hereon, all as ofthe 28th day of February, 2006.
CITY OF WINTER SPRINGS, FLORIDA
Mayor
(SEAL)
ATTESTED AND COUNTERSIGNED:
City Clerk
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14
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds issued under the provisions ofthe within mentioned Resolution.
CITY OF WINTER SPRINGS, FLORIDA, Registrar
Date of Authentication:
By:
City Clerk
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15
ASSIGNMENT AND TRANSFER
F or value received the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or other identifying number oftransferee) the
attached bond of the City of Winter Springs, Florida, and does hereby constitute and appoint
, attorney, to transfer the said Bond on the books kept for
Registration thereof, with full power of substitution in the premises.
Date
Signature Guaranteed by
(member firm ofthe New York Stock
Exchange or a commercial bank or a trust
company.)
NOTICE: No transfer will be registered and
no new Bonds will be issued in the name of
the Transferee, unless the signature to this
assignment corresponds with the name as it
appears upon the face of the within Bond in
every particular, without alteration or
enlargement or any change whatever and the
Social Security or Federal Employer
Identification Number of the Transferee is
supplied.
By:
Title:
(END OF FORM OF BOND]
{OR980912;6 }
16
SECTION 16. CREATION OF FUNDS. There are hereby created and established for
the Bonds the following funds and accounts, which funds and accounts shall be trust funds held by
the City for the purposes herein provided and used only in the manner herein provided:
(1) The "City of Winter Springs Special Assessment Revenue Fund" (hereinafter
sometimes called the "Revenue Fund") to be held by the Issuer and to the credit of which deposits
shall be made as required by Section 20(A) hereof.
(2) The "City of Winter Springs Special Assessment Bond Service Fund" (hereinafter
sometimes called the "Bond Service Fund") to be held by the Issuer and to the credit of which
deposits shall be made as required by Section 20(B)(1) and (2) hereof. In such fund there shall be
maintained the following accounts: the Principal Account, the Interest Account, the Redemption
Account and the Prepayment Account.
(3) The "City of Winter Springs Special Assessment Construction Fund" (hereinafter
sometimes called the "Construction Fund") to be held by the Issuer and to the credit of which
deposits shall be made as required by Section 17 hereof.
SECTION 17. APPLICATION OF BOND PROCEEDS. The proceeds, including
accrued interest and premium, if any, received from the sale of the Bonds shall be applied by the
Issuer simultaneously with the delivery of such Bonds to the Purchaser, as follows:
(1) Any accrued interest shall be deposited in the Interest Account and shall be used only
for the purpose of paying interest becoming due on the Bonds.
(2) The balance of the proceeds of the Bonds shall be deposited into the Construction
Fund hereby created and used solely for the purpose of paying Project Costs and costs of issuing and
delivering the Bonds. Costs of issuing and delivering the Bonds shall be paid at the direction of the
City Manager ofthe Issuer or his designee. The Issuer shall make disbursements or payments from
the Construction Fund to pay the Project Costs only upon the filing in the office of the Clerk of
certificates signed by the Finance Director and the Project engineer or other qualified consultant,
stating with respect to each disbursement or payment to be made: (1) the item number of the
payment, (2) the name and address of the Person to whom payment is due, (3) the amount to be paid,
and (4) that each obligation, item or cost or expense mentioned therein has been properly incurred, is
in payment of a part ofthe Project Cost and is a proper charge against the Construction Fund and has
not been the basis of any previous disbursement or payment, or that each obligation, item of cost or
expense mentioned therein is a reimbursement of a part of the Project Cost which has been paid by
the Issuer or will be paid by the Issuer substantially contemporaneously with such disbursement from
the Construction Fund, and is a proper charge against the Construction Fund, has not been
theretofore reimbursed to the Issuer or otherwise been the basis of any previous disbursement or
payment and the Issuer is entitled to reimbursement thereof.
The date of completion of the Project shall be determined by the Project engineer or other
qualified consultant who shall certify such fact in writing to the governing body of the Issuer.
Promptly after the date of the completion of the Project, and after paying or making provisions for
{OR980912;6}
17
the payment of all unpaid items ofthe Project Cost, the Issuer shall deposit any balance of moneys
remaining in the Construction Fund in the Revenue Fund.
SECTION 18. DISBURSEMENTS FROM CONSTRUCTION FUND. Moneys on
deposit from time to time in the Construction Fund shall be used to payor reimburse Project Cost (as
defined in Resolution No. 2005-40 of the City).
SECTION 19. SPECIAL OBLIGATIONS OF ISSUER The Bonds shall not be or
constitute general obligations or indebtedness of the Issuer as "bonds" within the meaning of the
Constitution of Florida, but shall be payable solely from and secured by a lien upon and a pledge of
the Pledged Revenues as herein provided. No Holder or Holders of any Bonds issued hereunder shall
ever have the right to compel the exercise ofthe ad valorem taxing power ofthe Issuer or taxation in
any form of any real or personal property therein, or to compel the Issuer to pay such principal and
interest from any other funds of the Issuer.
SECTION 20. COVENANTS OF THE ISSUER. For so long as any of the principal
of and interest on any of the Bonds shall be outstanding and unpaid or until the Issuer has made
provision for payment of principal, interest and redemption premiums, if any, with respect to the
Bonds, as provided herein, the Issuer covenants with the Holders of any and all Bonds as follows:
(A) REVENUE FUND. All Assessments (other than Delinquent Assessment Principal,
Delinquent Assessment Interest and Prepayment Principal) shall upon receipt thereofby the Issuer be
deposited in the Revenue Fund. All deposits into such Revenue Fund shall be deemed to be held in
trust for the purposes herein provided and used only for the purposes and in the manner herein
provided.
(B) DISPOSITION OF REVENUES. Revenues in the Revenue Fund shall be disposed of
at least two (2) business days prior to each January 1 and July 1 commencing January 1,2007 (each
being an "Interest Payment Date") only in the following manner and the following order or priority:
(1) The Issuer shall first deposit into the Bond Service Fund and credit to the
following accounts, in the following order, the following identified sums:
(a) Interest Account: A portion ofthe Assessments which shall represent
interest on the Assessments as will be sufficient to pay all interest coming due on all outstanding
Bonds on the next interest payment date, together with any fees and charges of the Paying Agent and
Registrar therefor. Moneys in the Interest Account may be used only for the purposes set forth in this
paragraph (a).
(b) Principal Account: A portion of the Assessments which shall be
allocable to the Amortization Installments or the principal of the Assessments as will be sufficient to
pay the Amortization Installments or the principal amount of the Outstanding Bonds which will
mature and otherwise become due on the next J u1 y 1. Moneys in the Principal Account may be used
only for the purposes set forth in this paragraph.
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18
(2) (a) Prepayment Principal as received shall be deposited into the
Prepayment Account and applied to the extraordinary mandatory redemption of Bonds on the next
interest payment date as provided for in the Bonds.
(b) Delinquent Assessment Principal shall be deposited into the Principal
Account.
( c) Delinquent Assessment Interest shall be deposited into the Interest
Account.
(3) The balance of any moneys remaining in the Revenue Fund after the above
required payments have been made shall remain in the Revenue Fund and shall be used for any
purposes hereinabove specified.
(4) The Bond Service Fund, the Revenue Fund and any other special funds herein
established and created shall be deemed to be held in trust for the purposes provided herein for such
funds. The moneys in all such funds shall be continuously secured in the same manner as state and
municipal deposits are authorized to be secured by the laws of the State of Florida.
Moneys in any fund or account created hereunder shall be invested and reinvested in
Permitted Investments which mature not later than the dates on which the moneys on deposit therein
will be needed for the purpose of such fund. All income on such investments in the Construction
Fund shall remain in the Construction Fund until the date of completion ofthe Project and thereafter
shall be deposited in the Revenue Fund. All moneys from investments in the other funds and
accounts created hereunder shall be deposited in the Revenue Fund.
(5) In determining the amount of any of the payments required to be made
pursuant to this Section, credit may be given for all investment income accruing to the respective
funds and accounts described herein, except as otherwise provided.
(6) The cash required to be accounted for in each of the funds and accounts
described in this Section may be deposited in a single bank account, provided that adequate
accounting records are maintained to reflect and control the restricted allocation of the cash on
deposit therein for the various purposes of such funds and accounts as herein provided. The
designation and establishment of the various funds in and by this Resolution shall not be construed to
require the establishment of any completely independent, self-balancing funds as such term is
commonly defined and used in governmental accounting, but rather is intended solely to constitute
an earmarking of certain revenues and assets for certain purposes and to establish certain priorities
for application of such revenues and assets as herein provided.
(C) ENFORCEMENT OF PAYMENT OF ASSESSMENTS. The Issuer will assess, levy,
collect or cause to be collected and enforce the payment of Assessments in the manner prescribed by
all resolutions, ordinances or laws thereunto appertaining at times and in amounts as shall be
necessary in order to pay, when due, the principal of and interest on the Bonds. Upon the due date of
{OR980912;6}
19
the Assessments, the Issuer shall diligently proceed to collect the same and shall exercise all legally
available remedies to enforce such collections now or hereafter available under State law.
(D) DELINQUENT ASSESSMENTS. If the owner of any lot or parcel ofland shall be
delinquent in the payment of any Assessment, then such Assessment shall be enforced in accordance
with applicable law, including but not limited to the sale of tax certificates and tax deeds as regards
such delinquent Assessment.
(E) OTHER OBLIGATIONS PAY ABLE FROM PLEDGED REVENUES. The Issuer
will not issue or incur any obligations payable from the Pledged Revenues nor voluntarily create or
cause to be created any debt, lien, pledge, assignment, encumbrance or other charge upon such
Pledged Revenues except for fees, commissions, costs, and other charges payable to the property
appraiser or to the tax collector pursuant to Florida law which may be a charge against the
Assessments.
(F) RE-ASSESSMENTS. If any Assessment shall be either in whole or in part annulled,
vacated or set aside by the judgment of any court, or the Issuer shall be satisfied that any such
Assessment is so irregular or defective that it cannot be enforced or collected, or if the Issuer shall
have omitted to make such Assessment when it might have done so, the Issuer shall either: (i) take
all necessary steps to cause a new Assessment to be made for the whole or any part of such
improvement or against any property benefited by such improvement; or (ii) in its sole discretion,
make up the amount of such Assessment from legally available moneys, which moneys shall be
deposited into the Revenue Fund. In case any such subsequent Assessment shall also be annulled, the
Issuer shall obtain and make other Assessments until a valid Assessment shall be made.
(G) ANNUAL AUDIT. The Issuer shall provide to each Holder a copy of the annual
audited financial statements ofthe Issuer. The Issuer shall be permitted to make a reasonable charge
for furnishing such audited financial statements to each Holder.
(H) BOOKS AND RECORDS. The Issuer shall keep books, records and accounts ofthe
Pledged Revenues, and the Holders of any Bonds Outstanding or the duly authorized representatives
thereof shall have the right at all reasonable times to inspect all books, records and accounts of the
Issuer relating thereto.
(I) NO IMPAIRMENT. The Issuer will not enter into any contract or contracts, nor take
any action, the results of which might impair the right ofthe Holders hereunder.
(J) COLLECTION OF ASSESSMENTS. The Issuer shall collect all Assessments in
accordance with the provisions of Sections 197.3632 and 197.3635, Florida Statutes as amended
from time to time or if such method is unavailable to the Issuer then in accordance with other
applicable law.
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20
(K) BUDGET AND OTHER FINANCIAL INFORMATION. The Issuer shall:
(a) Within 183 days following the end of each Fiscal Year of the Issuer, provide
the Purchaser with a copy of the Issuer's audited financial statements for the preceding Fiscal Year;
and
(b) Provide the Purchaser with a copy of its annual budget and capital
improvement plan within 30 days of the adoption of the same.
The information described in ( a) and (b) above shall be provided to the Purchaser in printed
form not electronic form.
SECTION 21. DEFAULTS; EVENTS OF DEFAULT AND REMEDIES. Except as
provided below, if any of the following events occur it is hereby defined as and declared to be and to
constitute an "Event of Default":
(1) Default in the due and punctual payment of any interest on the Bonds;
(2) Default in the due and punctual payment of the principal of and premium, if any, on
any Bond, at the stated maturity thereof, or upon proceedings for redemption thereof;
(3) Default in the performance or observance of any other of the covenants, agreements or
conditions on the part ofthe Issuer contained in this Resolution or in the Bonds and the continuance
thereof for a period of thirty (30) days after written notice to the Issuer given by the Holders of not
less than twenty-five percent (25%) of aggregate principal amount of Bonds then Outstanding
(provided, however, that with respect to any obligation, covenant, agreement or condition which
requires performance by a date certain, if the Issuer performs such obligation, covenant, agreement or
condition within thirty (30) days of written notice as provided above, the default shall be deemed to
be cured);
(4) Failure by the Issuer promptly to remove any execution, garnishment or attachment of
such consequence as will materially impair its ability to carry out its obligations hereunder; or
(5) Any act of bankruptcy or the rearrangement, adjustment or readjustment of the
obligations of the Issuer under the provisions of any bankruptcy or moratorium laws or similar laws
relating to or affecting creditors' rights.
The term "default" shall mean default by the Issuer in the performance or observance of any
ofthe covenants, agreements or conditions on its part contained in this Resolution, any supplemental
resolution or in the Bonds, exclusive of any period of grace required to constitute a default or an
"Event of Default" as hereinabove provided.
Any Holder of Bonds issued under the provisions hereof or any trustee acting for the Holders
of such Bonds, may either at law or in equity, by suit, action, mandamus or other proceedings in any
court of competent jurisdiction, protect and enforce any and all rights, including the right to the
{OR980912;6}
21
appointment of a receiver, existing under State or federal law, or granted and contained herein, and
may enforce and compel the performance of all duties required herein or by any applicable law to be
performed by the Issuer or by any officer thereof.
The foregoing notwithstanding:
(1) No remedy conferred upon or reserved to the Bondholders is intended to
be exclusive of any other remedy, but each remedy shall be cumulative and shall be in addition to
any other remedy given to the Bondholders hereunder.
(2) No delay or omission to exercise any right or power accruing upon any default
or Event of Default shall impair any such right or power or shall be construed to be a waiver of any
such default or acquiescence therein, and every such right and power may be exercised as often as
may be deemed expedient.
(3) No waiver of any default or Event of Default hereunder by the Bondholders
shall extend to or shall affect any subsequent default or Event of Default or shall impair any rights or
remedies consequent thereon.
(4) Acceleration of the payment of principal of and interest on the Bonds shall not
be a remedy hereunder in the case of an Event of Default.
On the occurrence of an Event of Default, to the extent such rights may then lawfully be
waived, neither the Issuer nor anyone claiming through or under it, shall set up, claim or seek to take
advantage of any stay, extension or redemption laws now or hereafter in force, in order to prevent or
hinder the enforcement of this Resolution, and the Issuer, for itself and all who may claim through or
under it, hereby waives, to the extent it may lawfully do so, the benefit of all such laws and all right
of redemption to which it may be entitled.
SECTION 22. AMENDING AND SUPPLEMENTING OF RESOLUTION
WITHOUT CONSENT OF HOLDERS OF BONDS. The Issuer, from time to time and at any time
and without the consent or concurrence of any Holder of any Bonds, may adopt a resolution
amendatory hereof or supplemental hereto, if the provisions of such supplemental resolution shall
not adversely affect the rights ofthe Holders of the Bonds then Outstanding, for anyone or more of
the following purposes:
(1) To make any changes or corrections in this Resolution as to which the Issuer shall
have been advised by counsel that are required for the purpose of curing or correcting any ambiguity
or defective or inconsistent provisions or omission or mistake or manifest error contained in this
Resolution, or to insert in this Resolution such provisions clarifying matters or questions arising
under this Resolution as are necessary or desirable;
(2) To add additional covenants and agreements of the Issuer for the purpose of further
securing the payments of the Bonds;
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22
(3) To surrender any right, power or privilege reserved to or conferred upon the Issuer by
the terms of this Resolution;
(4) To confirm as further assurance any covenant created or to be created by the
provisions of this Resolution;
(5) To grant to or confer upon the Holders any additional right, remedies, powers,
authority or security that lawfully may be granted to or conferred upon them;
(6) To assure compliance with federal "arbitrage" and other applicable tax provisions in
effect from time to time; or
(7) To modify any ofthe provisions ofthis Resolution in any other aspects provided that
such modifications shall not be effective until after the Bonds Outstanding at the time such
supplemental resolution is adopted shall cease to be Outstanding, or until the holders thereof consent
thereto pursuant to Section 23 hereof, and any Bonds issued subsequent to any such modification
shall contain a specific reference to the modifications contained in such supplemental resolution.
Except for supplemental resolutions providing for the issuance of Bonds pursuant hereto, the
Issuer shall not adopt any supplemental resolution authorized by the foregoing provisions of this
Section unless in the opinion of Bond Counsel the adoption of such supplemental resolution is
permitted by the foregoing provisions of this Section.
SECTION 23. AMENDMENT OF RESOLUTION WITH CONSENT OF
HOLDERS OF BONDS. Except as provided in Section 22 hereof, no material modification or
amendment of this Resolution or of any resolution supplemental hereto shall be made without the
consent in writing of the Holders of fifty-one percent or more in the principal amount of the Bonds
so affected and then Outstanding. No modification or amendment shall permit a change in the
maturity of such Bonds or a reduction in the rate of interest thereon or in the amount ofthe principal
obligation thereof or affecting the promise of the Issuer to pay the principal of and interest on the
Bonds as the same shall become due or reduce the percentage of the Holders of the Bonds required to
consent to any material modification or amendment hereof without the consent of the Holder or
Holders of all such Bonds.
SECTION 24.
FEDERAL INCOME TAX COVENANTS.
(1) The Issuer covenants with the Holders of the Bonds that it shall not use the proceeds
of such Bonds in any manner which would cause the interest on such Bonds to be or become
includable in the gross income of the Holder thereof for federal income tax purposes.
(2) The Issuer covenants with the Holders of the Bonds that neither the Issuer nor any
Person under its control or direction will make any use of the proceeds of such Bonds (or amounts
deemed to be proceeds under the Code) in any manner which would cause such Bonds to be
"arbitrage bonds" wi thin the meaning of Section 148 of the Code, and neither the Issuer nor any other
{OR980912;6}
23
Person shall do any act or fail to do any act which would cause the interest on such Bonds to become
includable in the gross income of the Holder thereof for federal income tax purposes.
(3) The Issuer shall payor cause to be paid to the United States Government any amounts
required by Section 148(f) ofthe Code and the regulations thereunder (the "Regulations"). In order to
insure compliance with the rebate provisions of Section 148( f) of the Code with respect to the Bonds,
the Issuer hereby creates the "City of Winter Springs Special Assessment Rebate Fund" (hereinafter
sometimes called the "Rebate Fund") to be held by the Issuer. The Rebate Fund need not be
maintained so long as the Issuer timely satisfies its obligation to pay any rebatable earnings to the
United States Treasury; however, the Issuer may, as an administrative convenience, maintain and
deposit funds in the Rebate Fund from time to time. Any moneys held in the Rebate Fund shall not
be available to pay debt service on the Bonds. Moneys in the Rebate Fund (including earnings and
deposits therein) shall be held for future payment to the United States Government as required by the
treasury regulations and as set forth in instructions of Bond Counsel delivered to the Issuer upon
issuance of such Bonds.
SECTION 25. DEFEASANCE. The covenants and obligations ofthe Issuer shall be
defeased and discharged under terms of this Resolution as follows:
(A) If the Issuer shall payor cause to be paid, or there shall otherwise be paid, to the
Holders of all Bonds the principal, redemption premium, if any, and interest due or to become due
thereon, at the times and in the manner stipulated herein and in the Bonds, then the covenants,
agreements and other obligations ofthe Issuer to the Bondholders, shall thereupon cease, terminate
and become void and be discharged and satisfied. Ifthe Issuer shall payor cause to be paid, or there
shall otherwise be paid, to the Holders of any Outstanding Bonds the principal and interest due or to
become due thereon, at the times and in the manner stipulated herein, such Bonds shall cease to be
entitled to any benefit under this Resolution, and all covenants, agreements and obligations of the
Issuer to the Holders of such Bonds shall thereupon cease, terminate and become void and be
discharged and satisfied.
(B) The Bonds and interest due or to become due for the payment or redemption of which
moneys shall have been set aside and shall be held in trust (through deposit by the Issuer of funds for
such payment or redemption or otherwise) at the maturity or redemption date thereof shall be deemed
to have been paid within the meaning and with the effect expressed in paragraph (A) of this Section
25. Any Outstanding Bonds shall prior to the maturity or redemption date thereofbe deemed to have
been paid within the meaning and with the effect expressed in paragraph (A) of this Section if (i) in
case of said Bonds are to be redeemed on any date prior to their maturity, the Issuer shall have given
to the escrow agent instructions accepted in writing by the escrow agent to notify Holders of
Outstanding Bonds in the manner required herein of the redemption of such Bonds on said date and
(ii) there shall have been deposited with the escrow agent either moneys in an amount which shall be
sufficient, or Acquired Obligations (including any Acquired Obligations issued or held in book-entry
form on the books of the Department ofthe Treasury of the United States) the principal of and the
interest on which when due will provide moneys which, together with the moneys, if any, deposited
with the escrow agent at the same time, shall be sufficient, to pay when due the principal of,
{OR980912;6}
24
premium, if any, and interest due and to become due on said Bonds on or prior to the redemption
date or maturity date thereof, as the case may be.
SECTION 26. BANK QUALIFIED. The Issuer designates the Bonds as a "qualified
tax-exempt obligation" within the meaning of Section 265(b)(3) ofthe Internal Revenue Code of
1986, as amended (the "Code"). The Issuer does not reasonably anticipate that the Issuer, any
subordinate entities of the Issuer, and issuers of debt that issue "on behalf' of the Issuer, will during
either calendar year 2006 issue more than $10,000,000 of "tax-exempt" obligations, exclusive of
those obligations described in Section 265(b)(3)(C)(ii) ofthe Code.
SECTION 27. OTHER ACTIONS. The Mayor, the Deputy Mayor/Commissioner,
the City Manager, the City Attorney, the City Clerk including any Deputy City Clerk and the Finance
Director (collectively the "Issuer Officers"), Akerman Senterfitt as Bond Counsel, and Public
Financial Management, Inc., as the Issuer's Financial Advisor, are hereby authorized and directed to
take all actions necessary or desirable in connection with the issuance and delivery of the Bonds and
the consummation of all transactions in connection therewith. The Issuer Officers are hereby
authorized and directed to execute all necessary or desirable certificates, documents, papers, and
agreements for the undertaking and fulfillment of all transactions referred to in or contemplated by
this Resolution.
SECTION 28. NEGOTIATED SALE; ACCEPTANCE OF PURCHASER'S
COMMITMENT. Due to the complex character ofthe security for the Bonds, the critical importance
of the timing of the sale of the Bonds and due to the willingness of the Purchaser to purchase the
Bonds at a rate favorable to the Issuer, it is hereby determined that it is in the best interest of the
public and the Issuer to sell the Bonds at a negotiated sale to the Purchaser. The Issuer hereby accepts
the offer from the Purchaser to purchase the Bonds, subject to the terms and conditions set forth in
the Purchaser's Commitment (the "Commitment") dated February 15, 2006, attached hereto as
Exhibit" A" which Commitment is hereby accepted by the City.
SECTION 29. SEVERABILITY. If anyone or more of the covenants, agreements or
provisions of this Resolution should be held contrary to any express provision of law or contrary to
the policy of express law, though not expressly prohibited, or against public policy, or shall for any
reason whatsoever be held invalid or shall in any manner be held to adversely affect the validity of
the Bonds, then such covenants, agreements or provisions shall be null and void and shall be deemed
separate from the remaining covenants, agreements or provisions of this Resolution or of the Bonds
issued hereunder.
SECTION 30. GENERAL AUTHORITY. The members ofthe City Commission of
the Issuer and the Issuer's officers, attorneys and other agents and employees are hereby authorized to
perform all acts and things required of them by this Resolution or desirable or consistent with the
requirements hereof for the full, punctual and complete performance of all of the terms, covenants
and agreements contained in the Bonds and this Resolution, and they are hereby authorized to
execute and deliver all documents which shall be required by Bond Counsel or the Purchaser of the
Bonds to effectuate the sale of the Bonds to said Purchaser.
{OR980912;6}
25
SECTION 31. NO PERSONAL LIABILITY. Neither the members of the City
Commission of the Issuer nor any person executing the Bonds shall be personally liable therefor or
be subject to any personal liability or accountability by reason of the issuance thereof.
SECTION 32. REPEAL OF INCONSISTENT INSTRUMENTS. Any Resolutions, or
parts thereof, in conflict herewith are hereby repealed to the extent of such conflict.
SECTION 33. HEADINGS NOT PART HEREOF. The headings preceding the
several articles and sections hereof shall be solely for convenience of reference and shall not
constitute a part of this Resolution or affect its meaning, construction or effect.
SECTION 34. APPROVAL OF PRIOR ACTIONS. All actions take to date by the
City Commission in furtherance of the issuance of the Bonds and the levying of the assessments are
hereby approved, confirmed and ratified.
SECTION 35. WAIVER OF JURY TRIAL. To the extent permitted by applicable
law, each of the Issuer and each registered owner including the Purchaser, knowingly, voluntarily
and intentionally waives any right each may have to a trial by jury in respect of any litigation based
on, or arising out of, under or in connection with this Resolution, the Bonds or any agreement
contemplated to be executed in connection with this Resolution or any course of conduct, course of
dealing, statements (whether verbal or written) or actions of any party with respect hereto. This
provision is a material inducement to the Purchaser to purchase this Bonds.
SECTION 36. EFFECTIVE DATE. The provisions of this Resolution shall take
effect immediately upon its passage.
Adopted the 27th day of February, 2006.
(SEAL)
CITY COMMISSION OF THE CITY OF
WINTER SPRINGS, FLORIDA
~~M
May r
~orm:
City Attorney
{OR980912;6}
26
EXHIBIT" A"
Purchaser's Commitment Letter
{OR980912;6}
. "W"ACHOVIA
Wathovla Bank NA
Government and Institutional Banking
800 N. Magnolia Ave. 1- Roor Fl2810
Orlando, FL 32603
February 15, 2006
Ms. Michelle Greco
Finance Director
City of Winter Springs
1126 East S.R. 434
Winter Springs, Florida 32708
Dear Ms. Greco:
Wachovia Bank, National Association (the "Bank") is pleased to submit the
Commitment described below to the City subject to the following terms and
conditions.
Borrower:
City of Winter Springs
Amount:
$500,000
Facility:
Term Loan
Purpose:
Provide financing for the Tuscawilla Lighting and Beautification
Project.
Term:
Maturity of July 1, 2021. Principal will be due and payable
annually commencing July 1, 2007 and each July thereafter.
Interest will be due and payable semi-annually on January 1 and
July 1 of each year commencing January 1, 2007. Interest on
the outstanding balance of the loan will be calculated on a 30-
day month/360 day year basis.
Security:
The Loan will be secured by a lien and pledge of Special
Assessments levied against property owners within Tuscawilla
Assessment Area.
Interest Rate:
4.10%
xwinter springs 51' asses 2006.DOC
This rate will be held for 45 days. In the event that the loan
does not close within 45 days, the interest rate will be 96.4%
US Treasury Obligation having maturity closest to the weighted
average maturity of the loan.
Prepayment: Should the City prepay during the life of the loan, the City will not
incur a breakage fee.
Conditions
1. The City by official action shall approve entering into this commitment and the
loan facility described herein and shall cause any borrowing under this facility to
be designated as a "Qualified Tax-Exempt Obligation" pursuant to Section
265(b)(3)(B) Internal Revenue Code of 1986, as amended.
Should subsequent but currently unforeseen events cause any borrowing under
this facility to be determined to be a "non-qualified" obligation pursuant to
Section 265(b)(3)(B), Internal Revenue Code of 1986, as amended, the Bank
shall adjust the interest rate on any outstandings hereunder so that it shall
receive the same after tax yield equivalent contemplated as of the time of this
commitment.
2. In the event that the interest on any drawing under this Commitment is ever
determined to be taxable for purposes of federal or state income taxation, or in
the event that any or all of the interest on any drawing under this Commitment
is deemed to be included in the gross income of the Bank for federal or state
income taxation, or in the event the Bank is unable to deduct any other amounts
as a result of purchasing or carrying any borrowings resultant from the
Commitment, or in the event of a change in the marginal tax rate applicable to
corporations or the alternative minimum tax rate or in the method prescribed by
federal income tax laws for calculating the alternative minimum tax to which the
Bank may be subject, or in the event of any action which would otherwise
decrease the after tax or taxable equivalent yield to the Bank, the interest on
this Commitment shall be subject to a full gross up modification, as determined
by the Bank and its counsel. In no event, however, shall the interest rate on
this Commitment exceed the maximum rate permitted by law.
3. Loan documents relating to this facility shall be prepared by bond counsel listed
in The Bond Buyer's Municipal Marketplace (the "Red Book") and acceptable to
the Bank. The Bank will receive a standard opinion of bond counsel as to the
due authorization and enforceability of the documents and as to tax-exemption
under state and federal law, and an opinion of the issuer's attorney as to
xwintcr springs sp asses 2006.DOC
2
litigation and other matters. The loan documents and such opinions shall be in
form and content acceptable to the Bank. Documents must be available for
review at least 5 business days prior to closing. The Bank will retain counsel to
review the documents on its behalf; Bank counsel will charge a fee of $3,500.
All costs relating to the preparation of documents and to otherwise complete
this transaction, including the Bank counsel fee, will be paid by the City
(whether or not the transaction closes).
4. The City covenants that Special Assessments will be collected via the County
Tax bill.
5. The City may not issue any additional debt secured by the Special Assessments
without the prior written consent of the Bank.
6. On an ongoing basis, the City agrees that it shall deliver to the Bank printed
copies of, when available, or within 180 days of each fiscal year end, whichever
is sooner, a Comprehensive Annual Financial Report, a Current Year Operating
Budget as soon as it is completed and a Capital Improvement Plan and any other
such information as reasonably requested by Bank.
7. This Commitment shall remain in full force and effect through 3:00 p.m., local
time, February 27, 2006 which time, if not accepted by execution of the
acceptance clause below and mailed to the Bank at its 1791 State Road 44,
New Smyrna Beach, Florida, 32168, office to my attention, this Commitment
shall expire and shall not be enforceable by either the Bank or the City unless
extended by the Bank in writing. Unless extended by the Bank in writing, this
facility must close on or prior to February 28, 2006 after which this
commitment shall expire.
8. If the Bank chooses to waive any covenant, paragraph, or provIsion of this
Commitment, or if any covenant, paragraph, or provision of this Commitment is
construed by a court of competent jurisdiction to be invalid, it shall not affect
the applicability, validity or enforceability of the remaining covenants,
paragraphs or provisions.
9. The preceding terms and conditions are not exhaustive. The final documents will
include other covenants, terms and closing conditions as are customarily
required by the Bank for similar transactions including but not limited to a Cross
Default with other debt, Default Rate, Events of Default, Acceleration upon
Default and Waiver of Jury Trial. This Commitment Letter shall not survive
closing. The loan will be assignable by the Bank, but will not be subject to
assignment by the City.
xwinter Iprinp Ip UICI 2006.DC.X:
3
10. The City represents and agrees that all information provided to the
Bank is correct and complete. No material adverse change may occur in, nor
may any adverse circumstance be discovered as to, the financial condition of
the City prior to closing. The Bank's obligations under this Commitment are
conditioned on the fulfillment to the Bank's sole satisfaction of each term and
condition referenced by this Commitment.
11 . This Commitment supersedes all prior Commitments and proposals
with respect to this transaction, whether written or oral, including any previous
loan proposals made by the Bank or anyone acting within its authorization. No
modification shall be valid unless in writing and signed by an authorized Officer
of the Bank. This Commitment is not assignable and no entity other than the
City shall be entitled to rely on this Commitment.
Wachovia Bank appreciates the opportunity to submit this Commitment to you
and looks forward to your favorable response. Should you have any questions,
please do not hesitate to contact me at (386) 423-5600.
Best Regards,
W ACHOVI~ BANK, NATIONAL ASSOCIATION
C(}'1M..<.. ~
Corrie Bowman
Vice President
ACCEPT ANCE
The above Commitment is hereby accepted on the terms and conditions outlined
therein by authority of the Governing Board of the City:
BY?/' ~ Date:
Its: yor
xwintcr sprinss sP asses 2006.IX>C 4