HomeMy WebLinkAboutResolution 615 Refunding Revenue Bonds
RESOLUTION NO. 615
A RESOLUTION AUTHORIZING THE ISSUANCE OF NOT EXCEEDING
$9,000,000 IMPROVEMENT REFUNDING REVENUE BONDS, SERIES
1989, OF THE CITY OF WINTER SPRINGS, FLORIDA TO BE
APPLIED TO REFUND CERTAIN PRESENTLY OUTSTANDING
OBLIGATIONS OF THE CITY AND TO CONSTRUCT AND ACQUIRE A
CIVIC RECREATIONAL COMPLEX AND NECESSARY OFF-SITE
IMPROVEMENTS AND A FIRE STATION; PLEDGING EXCISE TAXES
LEVIED BY THE CITY FOR THE PAYMENT OF SAID BONDS; MAKING
OTHER COVENANTS AND AGREEMENTS IN CONNECTION THEREWITH;
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 the Constitution of the State of Florida;
Chapter 166, Part II, Florida Statutes, Chapter 72-718, Laws of
Florida, Special Act of 1972 as amended and supplemented, being the
Charter of the City of Winter Springs, and other applicable
provisions of law.
Section 2. DEFINITIONS. Unless the context otherwise
requires, the terms defined in this section 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.
(A) "ACCRETED VALUES" shall mean the amounts as to which
reference is made that establish the amounts payable at maturity
or upon redemption prior to maturity on the Capital Appreciation
Bonds (hereinafter defined). Such amounts shall be determined by
subsequent resolution of the Issuer.
(B) "ACT" shall mean Chapter 166, Part II, Florida Statutes,
as amended and supplemented, Chapter 72-718, Laws of Florida,
Special Act of 1972 as amended and supplemented, and other applic-
able provisions of law.
(C) "ADDITIONAL PARITY OBLIGATIONS" shall mean additional
obligations issued in compliance with the terms, conditions and
limitations contained herein which have an equal lien on the Excise
Taxes and shall be payable from the Excise Taxes on a parity with
the Series 1989 Bonds and rank equally in all other respects with
the Series 1989 Bonds.
(E) "AMBAC Indemnity" shall mean AMBAC Indemnity Corporation,
a Wisconsin-domiciled stock insurance company.
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(E) "AGREEMENT" or "ESCROW DEPOSIT AGREEMENT" shall mean that
certain agreement by and between the Issuer and a bank or trust
company to be selected and named by the Issuer prior to the sale
of the Series 1989 Bonds (as hereinafter defined) for the purpose
of providing for the payment of the Refunded Bonds (as hereinafter
defined) (or any similar agreement relating to Additional Parity
Obligations), which agreement shall be in substantially the form
attached hereto as Exhibit A and incorporated herein by reference.
(F) "AMORTIZATION INSTALLMENT" with respect to any Term Bonds
of a series, shall mean an amount so designated for mandatory
principal installments (for mandatory call or otherwise) payable
on any Term Bonds issued under the provisions of this Resolution
or any subsequent resolution authorizing Additional Parity Obliga-
tions.
(G) "AVERAGE ANNUAL BOND SERVICE REQUIREMENT" shall mean, as
of each date on which a series of Bonds is issued, the total amount
of Bond Service Requirement to become due on all Bonds deemed to
be Outstanding immediately after the issuance of such series of
Bonds divided by the total number of years for which Bonds are
deemed to be Outstanding, except that with respect to any Bonds for
which Amortization Installments have been established, the amount
of principal coming due on the final maturity date with respect to
such Bonds shall be reduced by the aggregate principal amount of
such Bonds that are to be redeemed from Amortization Installments
to be made in prior Bond Years.
(H) "BOND SERVICE REQUIREMENT" for any Bond Year shall mean
the sum of:
(1) The amount required to pay the interest becoming due
on the Outstanding Bonds during such Bond Year, except to the
extent that such interest shall have been provided by payments into
the Interest Account in the Debt Service Fund out of Bond proceeds
for a specified period of time.
(2) The amount required to pay the principal of Out-
standing Serial Bonds maturing in such Bond Year.
(3) The Amortization Installment for the Outstanding
Term Bonds due in such Bond Year. When determining the amount of
principal of and interest on Outstanding Bonds which mature in any
year, for purposes of this instrument or the issuance of any
Additional Parity Obligations, the stated maturity date of Term
Bonds shall be disregarded and the Amortization Installment, if
any, applicable to Term Bonds in such year shall be deemed to
mature in such year.
(I) "BOND YEAR" shall mean the period beginning with October
2 of each year and extending for a period of twelve (12) months
thereafter.
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(J) "BONDS" shall mean the Series 1989 Bonds issued here-
under, together with any Additional Parity Obligations hereafter
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issued under the terms, conditions and limitations contained
herein.
(K) "CAPITAL APPRECIATION BONDS" shall mean the aggregate
principal amount of the Bonds that bear interest payable solely at
maturity or upon redemption prior to maturity in the amounts
determined by reference to the Accreted Values, all as shall be
determined by subsequent resolution of the Issuer.
(L) "CLERK" shall mean the City Clerk of the Issuer or such
other person as may be duly authorized by the Issuer to act on his
or her behalf.
(M) "CONSTRUCTION FUND" shall mean the City of Winter Springs
Construction Fund, Series 1989 created pursuant to Section 16
hereof.
(N) "CURRENT INTEREST BONDS" shall mean the aggregate
principal amount of the Bonds that bear interest payable semi-
annually on such dates as shall be determined by subsequent
resolution of the Issuer. The Current Interest Bonds include
aggregate principal amount of Serial Current Interest Bonds and
such aggregate principal amount of Term Current Interest Bonds, as
shall be determined by subsequent resolution of the Issuer.
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(0) "DEBT SERVICE FUND" shall mean the City of Winter Springs
Improvement Revenue Bonds Debt Service Fund created and established
pursuant to Section 18 of this Resolution.
(P) "ESCROW HOLDER" shall mean a bank or trust company with
trust powers appointed by subsequent resolution of the Issuer to
serve as Escrow Holder pursuant to the Agreement.
(Q) "EXCISE TAXES" shall mean the Franchise Fees and the
Public Service Taxes.
(R) "EXCISE TAXES FUND" shall mean the City of Winter Springs
Excise Taxes Fund created pursuant to Section 18 of this Resolu-
tion.
(S) "FEDERAL SECURITIES" shall mean direct obligations of,
or obligations the principal of and interest on which are uncon-
ditionally guaranteed by the United States of America, which are
not redeemable prior to maturity at the option of the obligor.
(T) "FISCAL YEAR" shall mean the period commencing on October
1 of each year and ending on the succeeding September 30.
(U) "FRANCHISE FEES" shall mean the franchise fees levied and
collected pursuant to Ordinance No. 290 of the Issuer, as amended
and supplemented, which granted an electric franchise to Florida
Power Corporation for a period of thirty years from April 1, 1984.
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(V) "INVESTMENT SECURITIES" shall mean any of the following,
if and to the extent that the same are legal for the investment of
the proceeds of the Bonds and the Excise Taxes:
(1) direct obligations of (including obligations issued
or held in book entry form on the books of) the
Department of Treasury of the United States of
America;
(2) obligations of any of the following federal agencies
which obligations represent full faith and credit
of the United States of America, including:
Export-Import Bank
Farmers Home Administration
General Services Administration
U.S. Maritime Administration
Small Business Administration
Government National Mortgage Association (GNMA)
U.S. Department of Housing & Urban Development
(PHA's)
Federal Housing Administration
(3) bonds, notes or other evidences of indebtedness
rated "AAA" by Standard & Poor's Corporation and
"Aaa" by Moody's Investor Services issued by the
Federal National Mortgage Association or the Federal
Home Loan Mortgage Corporation with remaining
maturities not exceeding three years;
(4) U.S. dollar denominated deposit accounts, federal
funds and banker's acceptances with domestic
commercial banks which have a rating on their short
term certificates of deposit on the date of purchase
of "A-I" or "A-1+" by Standard & Poor's and "P-1"
by Moody's and maturing no more than three hundred
sixty (360) days after the date of purchase.
(Ratings on holding companies are not considered as
the rating of the bank);
(5) commercial paper which is rated at the time of
purchase in the single highest classification,
"A-1 +" by Standard & Poor's and "P-1" by Moody's
Investor Services and which matures not more than
two hundred seventy (270) days after the date of
purchase;
(6) investments in a money market fund rated "AAArn" or
"AAArn--G" or better by Standard & Poor's
Corporation;
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(7) pre-refunded municipal obligations defined as
follows:
Any bonds or other obligations of any state of the United
States or any agency, instrumentality or local governmental
unit of any such state which are not callable at the option
of the obligor prior to maturity or as to which irrevocable
instructions have been given by the obligor to call on the
date specified in the notice; and (A) which are rated, based
on the escrow, in the highest rating category of Standard &
Poor's Corporation and Moody's Investor Service, Inc. or any
successors thereto; or (B)(i) which are fully secured as to
principal and interest and redemption premium, if any, by a
fund consisting only of cash or obligations described in
paragraph (1) above, 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 (ii) which fund is sufficient, as verified
by a nationally recognized independent certified public
accountant, to pay principal of and interest and redemption
premium, if any, on the bonds or other obligations described
in this paragraph on the maturity date or dates thereof or on
the redemption date or dates specified in the irrevocable
instructions referred to above, as appropriate;
(8) investment agreements approved in writing by AMBAC
Indemnity Corporation supported by appropriate
opinions of counsel with notice to Standard & Poor's
Corporation;
(9) insured Certificates of Deposit and Time Deposits
received as required by Chapter 280, Florida
Statutes;
(10) in the Local Government Surplus Funds Trust Fund
created pursuant to Chapter 218, Part IV of the
Florida Statutes; and
(11) other forms of investments approved in writing by
AMBAC Indemnity with notice to Standard & Poor's
Corporation.
(W) "ISSUER" or "CITY" shall mean the City of Winter Springs,
Florida.
(X) "MAXIMUM BOND SERVICE REQUIREMENT" shall mean, as of any
particular date of calculation, the greatest amount of aggregate
Bond Service Requirement for the then current or any future Bond
Year.
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(Y) "MUNICIPAL BOND INSURANCE POLICY" shall mean the
municipal insurance policy issued by AMBAC Indemnity insuring the
payment when due of the principal of and interest on the Bonds as
provided therein.
(Z) "OUTSTANDING" when used in reference to the Bonds, means
as of a particular date, all Bonds authorized and issued by the
Issuer, except: (i) any Bonds canceled at or before such date;
(ii) any Bonds for which provisions for payment pursuant to this
Resolution have been made; and (iii) any Bond in lieu of or in
substitution for which another Bond shall have been authorized and
delivered pursuant to Section 11 or Section 13 of this Resolution.
(AA) "OWNER OF BONDS" or "OWNER" or any similar term shall
mean any person who shall be the registered owner of any Bond or
Bonds.
(BB) "PAYING AGENT" shall mean any authorized depositary
designated by the Issuer to serve as a paying agent or as the place
of payment for the Series 1989 Bonds that shall have agreed to
arrange for the timely payment of the principal of, interest on and
redemption premium, if any, with respect to the Bonds to the Owners
thereof, from funds made available therefor by the Issuer and any
successors designated by subsequent resolution of the Issuer.
(CC) "PROJECT" shall mean the construction and acquisition of
~ civic and recreational facilities and the off-site improvements
related thereto, and a fire station in accordance with certain
plans on file or to be filed with the Clerk with such changes,
deletions, additions or modifications to the enumerated improve-
ments and such other improvements as are approved by the City
Commission of the Issuer in accordance with the Act.
(DD) "PUBLIC SERVICE TAXES" or "PUBLIC SERVICE TAX" shall mean
the public service tax levied and collected by the City pursuant
to Section 166.231, Florida Statutes and an ordinance duly enacted
by the Issuer on March 27, 1989, as amended and supplemented.
(EE) "REFUNDED BONDS" shall mean (a) (i) the Issuer's out-
standing Improvement Revenue Bonds dated April 1, 1979; and (ii)
the Issuer's outstanding Improvement Revenue Refunding Bonds,
Series 1985.
(FF) "REFUNDED SECURITIES" shall mean Federal Securities.
(GG) "REGISTRAR" shall mean the paying Agent.
(HH) "RESERVE ACCOUNT" shall mean the special account of the
same name created within the Debt Service Fund pursuant to Section
16C of this Resolution.
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"- (II) "RESERVE REQUIREMENT" shall mean in any Bond Year the
lesser of the Maximum Bond Service Requirement or 125% of the
Average Annual Bond Service Requirement.
(JJ) "RESOLUTION" shall mean this Resolution, as the same may
be amended from time to time.
(KK) "SERIES 1989 BONDS" shall mean the City of Winter
Springs Improvement Refunding Revenue Bonds, Series 1989.
(LL) "SERIAL CURRENT INTEREST BONDS" shall mean the aggregate
principal amount of Current Interest Bonds which are not Term Bonds
and which shall mature on such dates and in such amounts as shall
be determined by subsequent resolution of the Issuer.
(MM) "TERM BONDS" shall mean the Bonds of a series, all of
which shall be stated to mature on one date.
(NN) "TAXABLE BOND" shall mean any Bond which states, in the
body thereof, that the interest income thereon is includable in the
gross income of the Holder thereof for federal income tax purposes
or that such interest is subject to federal income taxation.
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(00) "TERM CURRENT INTEREST BONDS" shall mean the aggregate
principal amount of Current Interest Bonds which are Term Bonds and
which shall mature on such dates and in such amounts as shall be
determined by subsequent resolution of the Issuer.
(PP) "VALUE", which shall be determined as of the end of each
month, means that the value of any investments shall be calculated
as follows:
(1) as to investments the bid and asked prices of which
are published on a regular basis in The Wall Street
Journal (or, if not there, then in The New York
Times): the average of the bid and asked prices for
such investments so published on or most recently
prior to such time of determination;
(2) as to investments the bid and asked prices of which
are not published on a regular basis in The Wall
Street Journal or The New York Times: the average
bid price at such time of determination for such
investments by any two nationally recognized
government securities dealers (selected by the
Trustee in its absolute discretion) at the time
making a market in such investments or the bid price
published by a nationally recognized pricing
service;
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( 3 ) as to certificate of deposit and bankers
acceptance, face amount thereof, plus accrued
interest; and
(4) as to any investment not specific above: the value
thereof established by prior agreement between the
Issuer, the Trustee and AMBAC Indemnity.
Section 3. FINDINGS. It is hereby ascertained, determined
and declared:
A. It is necessary and desirable and in the interests of the
health, welfare and safety of the citizens and inhabitants of the
Issuer that the project be acquired and constructed.
The cost of the Project shall be deemed to include, without
being limited to, the acquisition of any lands or interest therein,
engineering, financial and legal expenses, a reasonable reserve for
debt service, expenses for plans, specifications and surveys,
interest during construction, bond discount, if any, bond in-
surance, if any, administrative expenses and such other expenses
as may be necessary or incidental to the financing authorized by
this resolution, including the cost of any fixtures, equipment or
property necessary or convenient therefor, and the construction and
acquisition of the Project authorized by this resolution and the
placing of same in operation.
B. The Issuer has previously issued the Refunded Bonds of
which the sum of $4,015,000 principal amount is currently outstand-
ing and unpaid.
C. The Issuer deems it necessary, beneficial and in its best
interest to provide for the refunding of the Refunded Bonds. The
refunding program herein described will be advantageous to the
Issuer by consolidating its debt.
D. A portion of the proceeds of the Series 1989 Bonds, and
other funds available for such purpose, shall be deposited pursuant
to the Agreement, in sufficient amounts together with the invest-
ment income thereon to pay when due all of the then outstanding
principal and interest, in respect to the Refunded Bonds.
E. The Excise Taxes are not now pledged or encumbered in any
manner, except for the prior payment of the principal or interest
on a portion of the Refunded Bonds, which pledge and encumbrance
shall be defeased pursuant to the refunding herein authorized.
F. The principal of and interest on the Series 1989 Bonds
and all required reserve and other payments shall be payable solely
from the Excise Taxes as provided herein. The Issuer shall never
be required to levy ad valorem taxes on any real or personal
property therein to pay the principal of and interest on the Bonds
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herein authorized or to make any other payments provided for
herein. The Series 1989 Bonds shall not constitute a lien upon any
properties owned by or located within the boundaries of the Issuer.
G. The Excise Taxes are estimated to be sufficient to pay
all principal of and interest on the Prior Bonds and the Series
1989 Bonds, as the same become due, and to make all required
paYments required by this Resolution.
Section 4. AUTHORIZATION OF REFUNDING AND ACQUISITION AND
CONSTRUCTION OF THE PROJECT. There is hereby authorized the
refunding of the Refunded Bonds and the acquisition and construc-
tion of the Project in the manner provided herein.
Section 5. THIS RESOLUTION TO CONSTITUTE CONTRACT. In
consideration of the acceptance of the Bonds authorized to be
issued hereunder by those who shall own the same from time to time,
this Resolution shall be deemed to be and shall constitute a
contract between the Issuer and such Owners. The covenants and
agreements herein set forth to be performed by the Issuer shall be
for the equal benefit, protection and security of the legal Owners
of any and all of the Bonds, all of which shall be of equal rank
and without preference, priority or distinction of any of the Bonds
over any other thereof, except as expressly provided therein and
herein.
Section 6. AUTHORIZATION OF SERIES 1989 BONDS. Subject and
pursuant to the provisions hereof, obligations of the Issuer to be
known as "Improvement Refunding Revenue Bonds, Series 1989", are
authorized to be issued in the aggregate principal amount of not
exceeding $9,000,000.
Section 7. DESCRIPTION OF SERIES 1989 BONDS. The Series 1989
Bonds shall be issued in fully registered form; may be Capital
Appreciation Bonds and/or Current Interest Bonds; shall be dated;
shall be numbered; shall be in the denomination of $5,000 each, or
integral multiples thereof for the Current Interest Bonds and in
$5,000 maturity amounts for the Capital Appreciation Bonds or in
$5,000 multiples thereof, or such other denominations as shall be
approved by the Issuer in a subsequent resolution prior to the
delivery of the Series 1989 Bonds; shall bear interest at such rate
or rates not exceeding the maximum rate allowed by Florida law, the
actual rate or rates to be determined by the governing body of the
Issuer prior to or upon the sale of the Series 1989 Bonds; may be
issued with original issue discounts and as zero interest rate
bonds; such interest to be payable semi-annually at such times as
are fixed by resolution of the Issuer if Current Interest Bonds and
to be payable at maturity if Capital Appreciation Bonds; and shall
mature annually on such date in such years and amounts as will be
fixed by resolution of the Issuer prior to or upon the sale of the
Series 1989 Bonds; and may be serial and/or term Bonds.
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Each Current Interest Bond shall bear interest from the
interest payment 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 Current
Interest Bond shall bear interest from the date to which interest
shall have been paid.
The Capital Appreciation Bonds shall bear interest only at
maturity or upon redemption prior to maturity in the amount
determined by reference to the Accreted Value.
The principal of and the interest and redemption premium, if
any, on the Series 1989 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 Current Interest Bonds
shall be payable by the Registrar on each interest payment date to
the person appearing on the registration books of the Issuer
hereinafter provided for as the registered Holder thereof on the
15th day of the calendar month immediately preceding the applicable
interest payment date, by wire transfer or check mailed to such
registered Holder at his address as it appears on such registration
books. PaYment of defaulted interest shall be made to the regist-
ered Holder of record on a special record date for the payment of
such defaulted interest established by the Registrar, notice
whereof shall be given to Bondholders not less than 15 days
preceding such special record date. Payment of the principal of
and premium, if any, on all Current Interest Bonds and the Accreted
Value with respect to the Capital Appreciation Bonds shall be made
upon the presentation and surrender of such Bonds as the same shall
become due and payable.
Notwithstanding any other provisions of this section, the
Issuer may, at its option, prior to the date of issuance of the
Series 1989 Bonds, elect to use an immobilization system or pure
book-entry system with respect to issuance of such Series 1989
Bonds, provided adequate records will be kept with respect to the
ownership of such Series 1989 Bonds issued in book-entry form or
the beneficial ownership of bonds issued in the name of a nominee.
As long as any Series 1989 Bonds are outstanding in book-entry from
the provisions of Sections 8, 9, 10 and 13 of this Resolution shall
not be applicable to such Series 1989 Bonds. The details of any
alternative system of issuance, as described in this paragraph,
shall be set forth in a resolution of the Issuer duly adopted at
or prior to the sale of such Series 1989 Bonds.
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Section 8. EXECUTION OF SERIES 1989 BONDS. The Series 1989
Bonds shall be signed by, or bear the facsimile signature of the
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Mayor of the Issuer and shall be signed by, or bear the facsimile
signature of the Clerk and a facsimile of the official seal of the
Issuer shall be imprinted on the Series 1989 Bonds.
In case any officer whose signature or a facsimile of whose
signature shall appear on any Series 1989 Bonds shall cease to be
such officer before the delivery of such Series 1989 Bonds, such
signature or such facsimile shall nevertheless be valid and
sufficient for all purposes the same as if he had remained in
office until such delivery, and also any Series 1989 Bond may bear
the facsimile signature of or may be signed by such persons who,
as at the actual time of the execution of such Series 1989 Bond,
shall be the proper officers to sign such Series 1989 Bonds
although at the date of such Series 1989 Bond such persons may not
have been such officers.
Section 9. AUTHENTICATION OF SERIES 1989 BONDS. Only such
of the Series 1989 Bonds as shall have endorsed thereon a certifi-
cate 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 Series 1989 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 Series 1989 Bond shall be conclusive
evidence that such Series 1989 Bond has been duly authenticated and
delivered under this Resolution. The Registrar's certificate of
authentication on any Series 1989 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 Series 1989 Bonds that
may be issued hereunder at anyone time.
Section 10. EXCHANGE OF SERIES 1989 BONDS. Any Series 1989
Bond, upon surrender thereof at the principal corporate trust
office of 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, may, at the option of
the Owner, be exchanged for an aggregate principal amount of Series
1989 Bonds equal to the principal amount of the Series 1989 Bond
or Series 1989 Bonds so surrendered.
The Registrar shall make provision for the exchange of Series
1989 Bonds at the principal corporate trust office of the Regis-
trar.
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Section 11. NEGOTIABILITY, REGISTRATION AND TRANSFER OF
SERIES 1989 BONDS. The Registrar shall keep books for the regis-
tration of and for the registration of transfers of Series 1989
Bonds as provided in this resolution. The transfer of any Series
1989 Bonds may be registered only upon such books upon surrender
thereof to the Registrar together with an assignment duly executed
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by the Owner or his attorney or legal representative in such form
as shall be satisfactory to the Registrar. Upon any such registra-
tion of transfer the Issuer shall execute and the Registrar shall
authenticate and deliver in exchange for such Series 1989 Bond, a
new Series 1989 Bond or Series 1989 Bonds registered in the name
of the transferee, and in an aggregate principal amount equal to
the principal amount of such Series 1989 Bond or Series 1989 Bonds
so surrendered.
In all cases in which Series 1989 Bonds shall be exchanged,
the Issuer shall execute and the Registrar shall authenticate and
deliver, at the earliest practicable time, a new Series 1989 Bond
of the same type (i.e. Current Interest Bonds will be exchanged for
Current Interest Bonds and Capital Appreciation Bonds will be
exchanged for Capital Appreciation Bonds) in accordance with
provisions of this Resolution. All Series 1989 Bonds surrendered
in any such exchange or registration of transfer shall forthwith
be cancelled by the Registrar. The Issuer or the Registrar may
make a charge for every such exchange or registration of transfer
of Series 1989 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 Series 1989 Bonds under the provisions of this
Resolution. Neither the Issuer nor the Registrar shall be required
to make any such exchange or registration of transfer of Series
1989 Bonds sufficient to reimburse it for any tax or other govern-
mental 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 Series 1989 Bonds under the provisions of this Resolution.
Neither the Issuer nor the Registrar shall be required to make any
such exchange or registration of transfer of Series 1989 Bonds
during the fifteen (15) days immediately preceding any interest
payment date.
Section 12. OWNERSHIP OF SERIES 1989 BONDS. The person in
whose name any Series 1989 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 Series 1989 Bond, and the interest on any such Series 1989
Bonds, (or, in the case of Capital Appreciation Bonds, Accreted
Value with respect thereto) 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 Series 1989 Bond including the premium, if
any, and interest thereon to the extent of the sum or sums so paid.
Section 13. SERIES 1989 BONDS MUTILATED, DESTROYED, STOLEN
OR LOST. In case any Series 1989 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
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deliver, a new Series 1989 Bond of like date and tenor as the
Series 1989 Bond so mutilated, destroyed, stolen or lost, (i.e.,
Current Interest Bonds shall be issued in exchange for Current
Interest Bonds and Capital Appreciation Bonds shall be issued in
exchange for Capital Appreciation Bonds) in exchange and sub-
stitution for such mutilated Series 1989 Bond upon surrender and
cancellation of such mutilated Series 1989 Bond or in lieu of and
substitution for the Series 1989 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 Series 1989 Bonds so
surrendered shall be canceled by the Issuer. If any of the Series
1989 Bonds shall have matured or be about to mature, instead of
issuing a substitute Series 1989 Bond, the Issuer may pay the same,
upon being indemnified as aforesaid, and if such Series 1989 Bond
be lost, stolen or destroyed, without surrender thereof.
Any such duplicate Series 1989 Bonds issued pursuant to this
section shall constitute original, additional contractual obliga-
tions on the part of the Issuer whether or not the lost, stolen or
destroyed Series 1989 Bonds be at any time found by anyone, and
such duplicate Series 1989 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 Series 1989 Bonds issued hereunder.
Section 14. PROVISIONS FOR REDEMPTION. The Series 1989 Bonds
shall be subject to redemption prior to their maturity, at the
option of the Issuer, at such times and in such manner as shall be
fixed by resolution of the Issuer prior to or at the time of sale
of the Series 1989 Bonds.
Notice of such redemption shall, at least thirty (30) days
prior to the redemption date, be filed with the Registrar; and
mailed, postage prepaid, to all Owners of Series 1989 Bonds to be
redeemed at their addresses as they appear on the registration
books hereinbefore provided for, but failure to mail such notice
to one or more Owners of Series 1989 Bonds shall not affect the
validity of the proceedings for such redemption with respect to
Owners of Series 1989 Bonds to which notice was duly mailed
hereunder. Each such notice shall set forth the date fixed for
redemption, the redemption price to be paid and, if less than all
of the Series 1989 Bonds of one maturity are to be called, the
distinctive numbers of such Series 1989 Bonds to be redeemed and
in the case of Series 1989 Bonds to be redeemed in part only, the
portion of the principal amount thereof to be redeemed.
.~
Upon surrender of any Series 1989 Bond for redemption in part
only, the Registrar shall authenticate and deliver to the Owner
thereof, the cost of which shall be paid by the Issuer, a new
13
_ Series 1989 Bond of an authorized denomination equal to the
unredeemed portion of the Series 1989 Bond surrendered.
Section 15. FORM OF SERIES 1989 BONDS. The text of the
Series 1989 Bonds shall be in substantially the following form,
with such omissions, insertions and variations as may be necessary
and/or desirable and approved by the Mayor of the Issuer and the
Clerk prior to the issuance thereof, which necessity and/or
desirability and approval shall be presumed by their execution of
the Series 1989 Bonds and the delivery of the Series 1989 Bonds to
the purchaser thereof by the Issuer:
.-.
14
.-
[FORM OF CURRENT INTEREST BOND]
No. R -
$
UNITED STATES OF AMERICA
STATE OF FLORIDA
COUNTY OF SEMINOLE
CITY OF WINTER SPRINGS
IMPROVEMENT REFUNDING REVENUE BOND, SERIES 1989
KNOW ALL MEN BY THESE PRESENTS, that the City of Winter
Springs, Florida (hereinafter called "City"), for value received,
hereby promises to pay to the order of
, or registered assigns, as herein
provided, on the day of , upon the presenta-
tion and surrender hereof at the principal corporate trust office
of
, in the City of ,
Florida (the "Registrar"), from the revenues hereinafter mentioned,
the principal sum of
DOLLARS 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, by check or draft mailed to the person
in whose name this Bond is registered at his address as it appears
on the Bond registration books of the City at the close of business
on the fifteenth day of the month (whether or not a business day)
next preceding each interest payment date, interest on said
principal sum on each April 1 and October 1 commencing October 1,
1989 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
in which event this bond shall bear
interest from
The Bonds of this issue shall be subject to redemption prior
to their maturity at the option of the City.
(Insert Optional or Mandatory Redemption Provisions)
Notice of such redemption shall be given in the manner
required by the resolution.
This Bond is one of an authorized issue of Bonds in the
aggregate principal amount of $9,000,000 of like date, tenor and
effect, except as to number, maturity and interest rate, issued to
finance the cost of refunding certain outstanding obligations of
the City and the cost of acquiring and constructing civic and
15
recreational facilities and related off-site improvements and a
fire station, pursuant to the authority of and in full compliance
with the Constitution and Statutes of the State of Florida,
including particularly Chapter 166, Part II, Florida Statutes, the
Charter of the City and a resolution duly adopted by the City
Commission of the City on May 1, 1989, as amended and supplemented
(the "Resolution") and is subject to all terms and conditions of
such Resolution.
This Bond and the interest herein are payable solely from and
secured by a lien upon and a pledge of the proceeds of the Public
Service Tax imposed by the City on the purchase of certain
utilities services within the corporate limits of the City, under
the authority of Section 166.231, Florida Statutes, and pursuant
to an ordinance enacted by the City on May 27, 1989, and the
proceeds of the Franchise Fees to be paid for a period of thirty
(30) years from April 1, 1984, by the Florida Power Corporation,
pursuant to an ordinance enacted by the Issuer on March 27, 1984
(such tax and fees, above described, are herein collectively
referred to as "Excise Taxes") in the manner provided in the
Resolution.
This Bond does not constitute an indebtedness of the City
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 Owner shall never have the right to require
or compel the exercise of the ad valorem taxing power of the City
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 sinking fund, reserve or other payments provided for in the
resolution.
It is further agreed between the City and the Owner of this
Bond that this Bond and the indebtedness evidenced hereby shall not
constitute a lien upon any property of or in the City, but shall
constitute a lien only on the Excise Taxes in the manner provided
in the resolution.
It is hereby certified and recited that all acts, conditions
and things required to exist, to happen and to be performed
precedent to and in the issuance of this Bond exist, have happened
and have been performed in regular and due form and time as
required by the laws and Constitution of the State of Florida
applicable thereto, and that the issuance of the Bonds of this
issue does not violate any constitutional or statutory limitations
or provisions.
This Bond is and has all the qualities and incidents of a
negotiable instrument under the Uniform Commercial Code - Invest-
ment Securities Law of the State of Florida.
16
The transfer of this Bond is registrable by the Owner hereof
in person or by his attorney or legal representative at the
principal corporate trust 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 the City Clerk, (the signa-
tures of the Mayor and the City Clerk being authorized to be
facsimile of such officers' signatures) and its seal or a facsimile
thereof to be affixed, impressed, imprinted, lithographed or
reproduced hereon, all as of the ____ day of , 1989.
CITY OF WINTER SPRINGS, FLORIDA
(SEAL)
(manual or facsimile)
Mayor
ATTESTED AND COUNTERSIGNED:
(manual or facsimile)
City Clerk
17
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds issued under the provisions of
the within mentioned resolution.
Date of Authentication:
Registrar, as Authenticating
Agent
By (Manual Signature)
Authorized Officer
ASSIGNMENT AND TRANSFER
For value received the undersigned hereby sells, assigns and
transfers unto
(Please insert Social Security or
assignee)
of Winter Springs, Florida, and does
other identifying number of
the within bond of the City
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:
NOTICE: Signature(s) must be
guaranteed by a 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 shall
correspond with the name as it
appears upon the face of the
within Bond in every particular,
without alteration or enlarge-
ment or any change whatever and
the Social Security or Federal
Employer Identification Number
of the Transferee is suppli-
ed. If the Transferee is a
trust, the names and Social
Security or Federal Employer
Identification Numbers of the
settlor and beneficiaries of the
trust, the Federal Employer
Identification Number and date
of the trust and the name of the
trustee should be supplied.
[End of Form of Current Interest Bond]
18
[FORM OF CAPITAL APPRECIATION BONDS]
No. CABR-
Bond Date:
Maturity Amount:
$
Principal Value
at Issuance: $
per $5,000 Maturity Amount
UNITED STATES OF AMERICA
STATE OF FLORIDA
COUNTY OF SEMINOLE
CITY OF WINTER SPRINGS
IMPROVEMENT REFUNDING REVENUE BOND, SERIES 1989
KNOW ALL MEN BY THESE PRESENTS that the City of Winter
Springs, Florida (hereinafter called "City"), for value received,
hereby promises to pay to the order of
, or registered assigns, as herein
provided, on the day of, upon the presenta
tion and surrender hereof at the principal office of
, in the City of, Florida (the "Registrar"), from the revenues
hereinafter mentioned, the Maturity Amount specified above on the
Maturity Date specified above, or the applicable Accreted Value (as
reflected in the Schedule of Accreted Values set forth herein) if
redeemed prior thereto as hereinafter provided.
(Insert Optional or Mandatory Redemption Provisions)
Notice of such redemption shall be given in the manner
required by the resolution.
This Bond is one of an authorized issue of Bonds in the
aggregate principal amount of $9,000,000 of like date, tenor and
effect, except as to number, maturity and interest rate, issued to
finance the cost of refunding certain outstanding obligations of
the City and the cost of acquiring and constructing a civic
recreational complex and related off-site improvements, pursuant
to the authority of and in full compliance with the Constitution
and Statutes of the State of Florida, including particularly
Chapter 166, Part II, Florida Statutes, the Charter of the City and
a resolution duly adopted by the City Commission of the City on
May 1, 1989, as supplemented (the "Resolution") and is subject to
all terms and conditions of such Resolution.
This Bond and the interest herein are payable solely from and
secured by a lien upon and a pledge of the proceeds of the Public
Service Tax imposed by the City on the purchase of certain
utilities services within the corporate limits of the City, under
the authority of Section 166.231, Florida Statutes, and pursuant
to an ordinance enacted by the City on March 26, 1989, and the
19
proceeds of the Franchise Fees to be paid for a period of thirty
(30) years from April 1, 1984, by the Florida Power Corporation,
pursuant to an ordinance enacted by the Issuer on March 27, 1978
(such tax and fees, above described, are herein collectively
referred to as "Excise Taxes") in the manner provided in the
Resolution.
This Bond does not constitute an indebtedness of the City
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 Owner shall never have the right to require
or compel the exercise of the ad valorem taxing power of the City
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 sinking fund, reserve or other payments provided for in the
resolution.
It is further agreed between the City and the Owner of this
Bond that this Bond and the indebtedness evidenced hereby shall not
constitute a lien upon any property of or in the City, but shall
constitute a lien only on the Excise Taxes in the manner provided
in the resolution.
It is hereby certified and recited that all acts, conditions
and things required to exist, to happen and to be performed
precedent to and in the issuance of this Bond exist, have happened
and have been performed in regular and due form and time as
required by the laws and Constitution of the State of Florida
applicable thereto, and that the issuance of the Bonds of this
issue does not violate any constitutional or statutory limitations
or provisions.
This Bond is and has all the qualities and incidents of a
negotiable instrument under the Uniform Commercial Code - Invest-
ment Securities Law of the State of Florida.
The transfer of this Bond is registrable by the Owner hereof
in person or by his attorney or legal representative at the
principal corporate trust 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 the City Clerk, (the signa-
tures of the Mayor and the City Clerk being authorized to be
20
__ facsimile of such officers' signatures) and its seal or a facsimile
thereof to be affixed, impressed, imprinted, lithographed or
reproduced hereon, all as of the ____ day of , 1989.
CITY OF WINTER SPRINGS, FLORIDA
(SEAL)
(manual or facsimile)
Mayor
ATTESTED AND COUNTERSIGNED:
(manual or facsimile)
City Clerk
21
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds issued under the provisions of
the within mentioned Resolution.
Registrar, as Authenticating
Agent
Date of Authentication:
By (Manual Signature)
Authorized Officer
ASSIGNMENT AND TRANSFER
For value received the undersigned hereby sells, assigns and
transfers unto
other identifying number of
the within bond of the City
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.
(Please insert Social Security or
assignee)
of Winter Springs, Florida, and does
Date
--
Signature Guaranteed by
[member
firm of the New York Stock
Exchange or a commercial bank
or a trust company.]
By: (manual signature)
Title:
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
wi th 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
Securi ty or Federal Employer
Identification Number of the
Transferee is supplied.
[Attach Schedule of Accreted Values]
[END OF BOND FORM OF CAPITAL APPRECIATION BONDS]
22
__ Section 16. APPLICATION OF SERIES 1989 BOND PROCEEDS. The
proceeds, including accrued interest and premium, if any, received
from the sale of any or all of the Series 1989 Bonds shall be
applied by the Issuer simultaneously with the delivery of such
Series 1989 Bonds to the purchaser thereof, as follows:
,-
A. The accrued interest and at the election of the Issuer
interest to accrue during the period the Project is being acquired
and constructed on those Series 1989 Bonds allocable to the Project
shall be deposited in the Interest Account in the Debt Service Fund
and shall be used only for the purpose of paying interest becoming
due on the Series 1989 Bonds. Such accrued interest and proceeds
of the Series 1989 Bonds, if any, deposited in the Interest Account
shall be invested solely in Federal Securities until used to pay
interest coming due on the Series 1989 Bonds.
B. Certain of the remaining proceeds shall be deposited with
the Escrow Holder to be applied as provided in the Agreement, which
together with any other funds to be deposited in escrow, will be
sufficient to pay the principal and interest and redemption premium
when due on the Refunded Bonds.
Such escrowed funds shall be kept separate and apart from all
other funds of the Issuer and the moneys on deposit therein shall
be withdrawn, used and applied by the Issuer solely for the
purposes set forth herein and in the Agreement. All such proceeds
shall be and constitute trust funds for such purposes and there is
hereby created a lien in favor of the Holders of the Series 1989
Bonds upon such money until so applied.
C. Unless provided from other funds of the Issuer on the
date of issuance of the Series 1989 Bonds or unless provided for
through the purchase of a guaranty or municipal bond insurance
issued by a reputable and recognized municipal bond insurer that
is rated in the highest rating category by A.M. Best & Company,
Standard & Poor's Corporation or Moody's Investors Service, an
irrevocable letter of credit rated in one of the two highest
categories by a nationally recognized rating agency which expires
at the final maturity of the Series 1989 Bonds, an irrevocable
surety bond which expires at the final maturity of the series 1989
Bonds, or any combination thereof, the Issuer shall deposit to the
Reserve Account in the Debt Service Fund, which Reserve Account is
herein created, a sum sufficient, together with other funds on
deposit in the Reserve Account to equal the Reserve Requirement on
the Series 1989 Bonds, and shall be used only for the purposes
provided in Section 18 of this Resolution.
D. To the extent not reimbursed therefor by the original
purchaser of the Series 1989 Bonds, the Issuer shall pay all costs
incurred in connection with the issuance of the Series 1989 Bonds.
23
__ E. The balance of the Series 1989 Bond proceeds shall be
deposited in the City of Winter Springs Construction Fund Series
1989 hereby created and such proceeds shall be used solely to
acquire and construct the Project.
Section 17. 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 Excise Taxes as herein provided. No Owner
or Owners 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
to pay such principal and interest from any other funds of the
Issuer except from the special funds in the manner provided herein.
The payment of the principal of and interest on the Series
1989 Bonds shall be secured forthwith equally and ratably by, and
the Issuer hereby grants to the Owner an irrevocable lien on the
Excise Taxes, which lien shall be prior and superior to all the
liens and encumbrances on such Excise Taxes and the Issuer does
irrevocably pledge such Excise Taxes to the payment of the prin-
cipal of and interest on the Series 1989 Bonds, for the reserves
therefor and for all other required payments, but only in the
manner and to the extent provided in this Resolution.
Section 18. COVENANTS OF THE ISSUER. For so long as any of
the principal of and interest on any of the Series 1989 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 for in Section 33 below, the
Issuer covenants with the holders of any and all Series 1989 Bonds
as follows:
A. EXCISE TAXES FUND. All Excise Taxes shall upon receipt
thereof be deposited in the "City of winter Springs Excise Taxes
Fund" (hereinafter called the "Excise Taxes Fund"), hereby created
and established. All deposits into such Excise Taxes Fund shall
be deemed to be held in trust for the purposes herein provided and
used and applied only for the purposes and in the manner herein
provided.
.-.,
The Excise Taxes shall be and are hereby pledged to the
payment of the principal of, premium, if any, and interest on the
Series 1989 Bonds and to the security thereof. The holders of the
Series 1989 Bonds shall have a lien upon the Excise Taxes, in
accordance with the provisions hereof. The Excise Taxes so pledged
and hereafter received by the Issuer shall immediately be subject
to the lien of such pledge without any physical delivery or further
act. All of the Series 1989 Bonds shall be equally and ratably
secured hereby. The money remaining in the Excise Taxes Fund,
after making provision for the payments into the Debt Service Fund,
24
and the various accounts therein, hereinafter created and
established, may, so long as there is no deficiency therein, be
used for any lawful purpose.
B. DISPOSITION OF EXCISE TAXES. All Excise Taxes in the
Excise Taxes Fund shall be disposed of monthly, but not later than
the fifteenth (15th) day of each month commencing in the month
immediately following the delivery of the Series 1989 Bonds only
in the following manner and the following order of priority:
(1) The Issuer shall first deposit into a separate fund
which is hereby created and designated "City of Winter Springs
Excise Taxes Debt Service Fund" (hereinafter called the "Debt
Service Fund"), and credit to the following accounts, each on a
parity with each other, the following identified sums:
(a) Interest Account: one-sixth (1/6) of all
interest becoming due on the Current Interest Bonds on the next
semi-annual interest payment date, together with any fees or
charges of the Registrar or Paying Agent thereof. The moneys in
the Interest Account shall be withdrawn and deposited with the
Paying Agent for the Bonds on or before each interest payment date
in an amount sufficient to pay the interest due on such date and
the fees and charges of the Registrar or paying Agent. Such
monthly payments shall be increased or decreased proportionately
prior to the first interest payment date or dates, after making
allowances for any deposits made into the Interest Account upon the
issuance of the Bonds.
(b) Principal Account: Beginning on the first day
of the month which is twelve (12) months prior to first principal
maturity date or the applicable or shorter time period if the first
principal maturity date is less than twelve (12) months after
delivery of the Bonds and monthly thereafter, such sum as will be
sufficient, together with the funds then on deposit therein, to pay
one-twelfth (1/12) of the principal amount and/or the Accreted
Value (except for payments to be made from the Redemption Account
herein created and established) maturing or scheduled to be called
for redemption on the next principal maturing date. The moneys on
deposit in the Principal Account shall be withdrawn and deposited
with the Paying Agent for such Bonds on or before each principal
maturity date in an amount sufficient to pay the principal maturing
on such date and the fees and charges of the Registrar or paying
Agent.
(c) Redemption Account: An amount sufficient to
pay any Amortization Installment established by any subsequent
resolution of the Issuer.
(d) Following the deposit provided for in Section
16(C) hereof, no further deposits shall be required to be made into
..........,
25
, ~
__ the Reserve Account whenever the amount provided for in Section
16(C) shall be on deposit therein.
Any withdrawals from the Reserve Account shall be subsequently
restored from the first moneys available in the Excise Taxes Fund
after all required payments to the Interest Account, Principal
Account and Redemption Account in the Debt Service Fund (including
all deficiencies in prior required payments therefrom) have been
made in full. Any excess funds in the Reserve Account shall be
transferred to the Interest Account. Upon the issuance of any
Additional Parity Obligations the Issuer shall fund in full part
from the proceeds of such Additional parity Obligations or in any
other manner provided in Section 16(C) hereof the required
additional deposit to the Reserve Account.
Moneys in the Reserve Account with respect to any series of
Bonds shall be used only for the purpose of payment of maturing
principal of or interest or Amortization Installment with respect
to such series of Bonds when the other money in the Debt Service
Fund is insufficient therefor, and for no other purpose.
(2) Upon the issuance of any Additional Parity Obliga-
tions under the terms, limitations and conditions as are herein
provided, the payments into the several accounts in the Debt
Service Fund, shall be increased in such amounts as shall be
necessary to make the payment for the principal of, and interest
on such Additional Parity Obligations on the same basis as
hereinabove provided with respect to the Bonds issued under this
Resolution.
(3) The Issuer shall not be required to make any further
deposits into the Debt Service Fund in any month to the extent the
monthly deposits into the Debt Service Fund, including the Reserve
Account therein, required by this Section 18(B) have been made by
the Issuer prior to the 15th day of each month and no deficiency
exists in any account in the Debt Service Fund.
(4) 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
the Resolution.
No further deposit shall be required to any of the accounts
in the Debt Service Fund when sufficient moneys are on deposit in
the accounts within the Debt Service Fund to pay the principal,
interest, and redemption premium, if any, on all Bonds at maturity.
''''--'1
26
(5) The Debt Service Fund (including the accounts
therein), 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 money 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.
Except as otherwise provided in Section 16(A) of this Resolu-
tion, moneys on deposit in the Revenue Fund and the Debt Service
Fund excluding the Reserve Account may be invested and reinvested
in Investment Securities which mature not later than the dates on
which the moneys on deposit therein will be needed for the purpose
of such fund. Moneys in the Reserve Account may be invested and
reinvested in Investment Securities maturing not later than five
(5) years from the date of their deposit in the Reserve Account.
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. If the Reserve
Requirement shall be on deposit in the Reserve Account, investment
income earned on the Reserve Account shall be deposited in the
Interest Account. To the extent that the Reserve Requirement shall
not be on deposit in the Reserve Account, investment income earned
on the Reserve Account shall remain on deposit therein.
(6) In determining the amount of any of the payments
required to be made pursuant to this Section 18(B), credit shall
be given for all investment income accruing to the respective funds
and accounts described herein, except as otherwise provided.
(7) The cash required to be accounted for in each of the
funds and accounts described in this Section 18, 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 indepen-
dent, 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 to establish
certain priorities for application of such revenues as herein
provided.
-,
C. PUBLIC SERVICE TAXES. For so long as any of the Bonds
are Outstanding and unpaid, or payment thereof has not been duly
provided for, it will not repeal the ordinance levying the Public
Service Tax, and will not amend or modify said ordinance in any
manner so as to impair or adversely affect the power and obligation
of the City to levy and collect the Public Service Tax, or impair
27
or adversely affect in any manner the pledge of the Public Service
Tax made herein, or the rights of the holders of the Bonds, or the
rate or amount of the Public Service Tax. The City does further
covenant and agree that so long as any of the principal of or
interest on any of the Bonds shall be outstanding and unpaid, or
payment thereof not duly provided for, it will levy and collect
such Public Service Tax, to the extent necessary up to the maximum
rate provided by law, as will always, together with other moneys
available therefor, provide funds sufficient to pay, as the same
shall become due, the principal of and interest on the Bonds, in
addition to paying, as the same shall become due, all reserve fund
and other payments provided for in this Resolution and all other
obligations and indebtedness payable out of said Public Service
Tax.
The Issuer further expressly represents that it has legal and
valid power to continue the levy and collection of the Public
Service Tax until all the principal of and interest on the Bonds
have been fully paid, notwithstanding that the legislative authori-
ty therefor may be repealed, amended or modified by the Legislature
of Florida prior to such time; and said City further represents
that the covenants entered into between the City and holders of the
Bonds pursuant to this subsection (C) constitute a valid and
legally binding contract between the City and such Bondholders not
subject to repeal, impairment or modification by the City.
D. FRANCHISE FEES. So long as any of the Bonds are Out-
standing and unpaid, or payment thereof has not been duly provided
for, it will not repeal the ordinance granting the franchise to
Florida Power Corporation and levying said Franchise Fees, and will
not amend or modify said ordinance in any manner so as to reduce
the rate or amount of Franchise Fees levied thereunder, or impair
or adversely affect the obligation of Florida Power Corporation,
or of its legal representatives, successors or assigns, to pay, or
the power or obligation of the City to levy and collect said
Franchise Fees, or impair or adversely affect in any manner the
pledge of such Franchise Fees made herein, or the rights of holders
of Bonds issued pursuant to this Resolution.
The City further expressly represents that it has legal and
valid power to levy and continue to levy and collect said Franchise
Fees in the manner provided, in said ordinance, and said City
further represents that the covenants entered into between the City
and the holders of the Bonds pursuant to this subsection (D)
constitute a valid and legally binding contract between the City
and such Bondholders and are not subject to repeal, impairment or
modification by the City.
:,,-,
In the event the Issuer shall acquire the electric power and
distribution facilities of the Florida Power Corporation, or in the
event it shall acquire, construct or operate an electric power and
distribution system and the Franchise Fees are not available to the
28
. ,
,_ City to make the payments therefrom required pursuant to the
provisions of this Resolution, the City will make payment from the
net revenues first available to it from the operation of any such
electric power and distribution system so owned, acquired, con-
structed or operated by it of the amounts required to be paid from
the Franchise Fees pursuant to the provisions of this Resolution.
E. BOOKS AND ACCOUNTS: AUDIT. The Issuer shall keep proper
books, records and accounts, separate and apart from all other
records and accounts, showing correct and complete entries of all
transactions relating to the collection and disbursement of the
Excise Taxes. The Owners of any of the Bonds or any duly
authorized agent or agents of such Owners shall have the right at
any and all reasonable times to inspect such books, records and
accounts. The Issuer shall, in accordance with application of
State of Florida law, following the close of each Fiscal Year cause
an audit of such books, records and accounts to be made by an
independent firm of certified public accountants in accordance with
generally accepted accounting procedures. Each such audit, shall
include the following:
Comments regarding any non-compliance by the City in carrying
out the accounting requirements of this Resolution.
Copies of each such audit report shall be placed on file with
the Issuer and be made available at reasonable times for inspection
by Owners of Bonds, and shall be sent to the nationally recognized
bond rating agencies and to the initial purchasers of the Bonds.
The auditors selected by the Issuer shall be changed at any time
by a written request signed by a majority of the Owners.
F. ENFORCEMENT OF COLLECTIONS. The Issuer will diligently
enforce and collect all Excise Taxes and will take all steps,
actions and proceedings for the enforcement and collection of such
rates, charges and fees as shall become delinquent to the full
extent permitted or authorized by law; and will maintain accurate
records with respect thereof. All such fees, rates, charges and
revenues herein pledged shall, as collected, be held in trust to
be applied as herein provided.
.....-,
Nothing herein, however, shall be construed to grant to any
Owner of the Bonds any lien on any property of the Issuer.
G. ISSUANCE OF OTHER OBLIGATIONS. The Issuer will not issue
any other obligations payable from the Excise Taxes nor voluntarily
create or cause to be created any debt, lien, pledge, assignment,
encumbrance or other charge having priority to or being on a parity
with the lien of the Bonds issued pursuant to this Resolution and
the interest thereon, upon said Excise Taxes except under the
conditions and in the manner provided herein. Any obligations
issued by the Issuer other than the Bonds herein authorized and
Additional parity Obligations, payable from such Excise Taxes,
29
__ shall contain an express statement that such obligations are
junior, inferior and subordinate in all respects to the Bonds
herein authorized, as to lien on and source and security for
payment from such Excise Taxes.
H. ISSUANCE OF ADDITIONAL PARITY OBLIGATIONS. No Additional
Parity Obligations, payable on a parity from the Excise Taxes,
shall be issued after the issuance of the Series 1989 Bonds herein
authorized, except upon the conditions and in the manner herein-
after provided:
(1) There shall have been obtained and filed with the
Issuer a certificate of an independent certified public accountant
of suitable experience and responsibility stating: (a) that the
books and records of the City relating to the collection and
receipt of the Excise Taxes have been audited by him; (b) the
amount of the Excise Taxes received for any twelve (12) months out
of the immediately preceding twenty-four (24) months preceding the
date of issuance of the proposed Additional Parity Obligations with
respect to which such certificate is made; (c) that the aggregate
amount of such Excise Taxes for such period is equal to not less
than one hundred twenty-five percent (125%) of the Maximum Bond
Service Requirement on all obligations issued under this
Resolution, if any, then Outstanding and on the Additional parity
Obligations with respect to which such certificate is made.
(2) The Excise Taxes for the preceding Fiscal Year may
also be adjusted to include the estimated Excise Taxes as certified
by an independent certified public accountant, that the Issuer
would have received from areas that the Issuer has annexed prior
to the issuance of the Additional Parity Obligations and not fully
reflected in such Fiscal Year.
(3) The Excise Taxes for the preceding Fiscal Year may
also be adjusted to include the estimated Excise Taxes, as
certified by an independent certified public accountant, that the
Issuer would have received during such Fiscal Year due to increase
in the rate or rates of such Excise Taxes during such Fiscal Year
and not fully reflected in such Fiscal Year.
(4) Each resolution authorizing the issuance of Ad-
ditional Parity Bonds will recite that all of the covenants herein
contained will be applicable to such Additional Parity Bonds.
(5) The City shall not be in default in performing any
of the covenants and obligations assumed hereunder, and all
payments herein required to have been made into the funds and
accounts, as provided hereunder, shall have been made to the full
extent required.
Section 18. FEDERAL INCOME TAX COVENANTS: TAXABLE BONDS.
30
(A) The Issuer covenants with the Holders of each Series of
Bonds (other than Taxable Bonds), that it shall not use the
proceeds of such Bonds in any manner which would cause the interest
on such Series of Bonds to be or become includable in the gross
income of the Holder thereof for federal income tax purposes.
(B) The Issuer covenants with the Holders of Bonds (other
than Taxable Bonds) that it not 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 that it shall not
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.
(C) The Issuer hereby covenants with the Holders of Bonds
(other than Taxable Bonds) that it will comply with all provisions
of the Code necessary to maintain the exclusion of interest on the
Bonds from the gross income of the Holder thereof for federal
income tax purposes, including, in particular, the payment of any
amount required to be rebated to the u.S. Treasury pursuant to the
Code.
(D) The Issuer may, if it so elects, issue one or more series
of Taxable Bonds the interest on which is (or may be) includible
in the gross income of the Holder thereof for federal income tax
purposes, so long as each such Bond states in the body thereof that
interest payable thereon is (or may be) subject to federal income
taxation and provided that the issuance thereof will not cause the
interest on any other Bonds theretofore issued hereunder to be or
become includable in the gross income of the Holder thereof for
federal income tax purposes. The covenants set forth in paragraphs
(A), (B) and (C) above shall not apply to any Taxable Bonds.
Section 19. EVENTS OF DEFAULT. The following events shall
each constitute an "Event of Default":
(A) Default shall be made in the payment of the principal of,
Amortization Installment, redemption premium or interest on any
Bond when due.
(B) There shall occur the dissolution or liquidation of the
Issuer, or the filing by the Issuer of a voluntary petition in
bankruptcy, or the commission by the Issuer of any act of
bankruptcy, or adjudication of the Issuer as a bankrupt, or
assignment by the Issuer for the benefit of its creditors, or
appointment of a receiver for the Issuer, or the entry by the
Issuer into an agreement of composition with its creditors, or the
approval by a court of competent jurisdiction of a petition
applicable to the Issuer in any proceeding for its reorganization
instituted under the provisions of the Federal Bankruptcy Act, as
.-..,
31
amended, or under any similar act in any jurisdiction which may now
be in effect or hereafter enacted.
(C) The Issuer shall default in the due and punctual perfor-
mance of any other of the covenants, conditions, agreements and
provisions contained in the Bonds or in this Resolution on the part
of the Issuer to be performed, and such default shall continue for
a period of thirty (30) days after written notice of such default
shall have been received from the Holders of not less than twenty-
five percent (25%) of the aggregate principal amount of Bonds
Outstanding or the Insurer of such amount of Bonds or any Credit
Bank. Notwithstanding the foregoing, the Issuer shall not be
deemed in default hereunder if such default can be cured within a
reasonable period of time and if the Issuer in good faith in-
stitutes curative action and diligently pursues such action until
the default has been corrected.
(D) An event of default pursuant to Section 30 of this
Resolution .
Section 20. REMEDIES. Any Holder of Bonds issued under the
provisions of this Resolution or any trustee or receiver acting for
such Bondholders may either at law or in equity, by suit, action,
mandamus or other proceedings in any court of competent jurisdic-
tion, protect and enforce any and all rights under the laws of the
State of Florida, or granted and contained in this Resolution, and
may enforce and compel the performance of all duties required by
this Resolution or by any applicable statutes to be performed by
the Issuer or by any officer thereof.
The Holder or Holders of Bonds in an aggregate principal
amount of not less than twenty-five percent (25%) of the Bonds then
Outstanding may by a duly executed certificate in writing appoint
a trustee for Holders of Bonds issued pursuant to this Resolution
with authority to represent such Bondholders in any legal proceed-
ings for the enforcement and protection of the rights of such
Bondholders and such certificate shall be executed by such Bond-
holders or their duly authorized attorneys or representatives, and
shall be filed in the office of the Clerk. Notice of such appoint-
ment, together with evidence of the requisite signatures of the
Holders of not less than twenty-five percent (25%) in aggregate
principal amount of Bonds Outstanding and the trust instrument
under which the trustee shall have agreed to serve shall be filed
with the Issuer and the trustee and notice of appointment shall be
given to all Holders of Bonds in the same manner as notices of
redemption are given hereunder. After the appointment of the first
trust hereunder, no further trustees may be appointed; however, the
Holders of a majority in aggregate principal amount of all the
Bonds then Outstanding may remove the trustee initially appointed
and appoint a successor and subsequent successors at any time.
32
Upon the occurrence of an Event of Default, a trustee may,
with the consent of AMBAC Indemnity (in the case of any Bonds
insured by AMBAC Indemnity), and shall, at the direction of AMBAC
Indemnity (in the case of any Bonds insured by AMBAC Indemnity) or
25% of the Bondholders with the consent of AMBAC Indemnity (in the
case of any Bonds insured by AMBAC Indemnity), by written notice
to the Issuer and AMBAC Indemnity (in the case of any Bonds insured
by AMBAC Indemnity), declare the principal of the Bonds to be
immediately due and payable, whereupon that portion of the prin-
cipal of the Bonds thereby coming due and the interest thereon
accrued to the date of payment shall, without further action,
become and be immediately due and payable, anything in this
Resolution or in the Bonds to the contrary notwithstanding.
Section 21. DIRECTIONS TO TRUSTEE AS TO REMEDIAL PROCEEDINGS.
The Holders of a majority in principal amount of the Bonds then
Outstanding (or any Insurer insuring any then Outstanding Bonds)
have the right, by an instrument or concurrent instruments in
writing executed and delivered to the trustee, to direct the method
and place of conducting all remedial proceedings to be taken by the
trustee hereunder, provided that such direction shall not be
otherwise than in accordance with law or the provisions hereof,
and that the trustee shall have the right to decline to follow any
such direction which in the opinion of the trustee would be
unjustly prejudicial to Holders of Bonds not parties to such
direction.
-
Section 22. REMEDIES CUMULATIVE. No remedy herein conferred
upon or reserved to the Bondholders is intended to be exclusive of
any other remedy or remedies, and each and every such remedy shall
be cumulative, and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by
statute.
Section 23. WAIVER OF DEFAULT. No delay or omission of any
Bondholder to exercise any right or power accruing upon any default
shall impair any such right or power or shall be construed to be
a waiver of any such default, or an acquiescence therein; and every
power and remedy given by Section 20 of this Resolution to the
Bondholders may be exercised from time to time, and as often as may
be deemed expedient.
Section 24. APPLICATION OF MONEYS AFTER DEFAULT. If an Event
of Default shall happen and shall not have been remedied, the
Issuer or a trustee or receiver appointed for the purpose shall
apply all Excise Taxes as follows and in the following order:
(A) To the payment of the reasonable and proper charges,
expenses and liabilities of the trustee or receiver, Registrar and
Paying Agent hereunder; and
33
.. tIo"
(B) To the payment of the interest and principal, including
any redemption premium, if applicable, then due on the Bonds, as
follows:
(1) Unless the principal of all the Bonds shall have become
due and payable, all such moneys shall be applied:
FIRST: to the payment to the persons entitled thereto
of all installments of interest then due, in the order of the
maturity of such installments, and, if the amount available
shall not be sufficient to pay in full any particular install-
ment, then to the payment ratably, according to the amounts
due on such installment, to the persons entitled thereto,
without any discrimination or preference;
--
SECOND: to the payment to the persons entitled thereto
of the unpaid principal of any of the Bonds which shall have
become due at maturity or upon mandatory redemption prior to
maturity (other than Bonds called for redemption for the
payment of which moneys are held pursuant to the provisions
of this Resolution), in the order of their due dates, with
interest upon such Bonds from the respective dates upon which
they became due, and, if the amount available shall not be
sufficient to pay in full Bonds due on any particular date,
together with such interest, then to the payment first of such
interest, ratably according to the amount of such interest due
on such date, and then to the payment of such principal,
ratably according to the amount of such principal due on such
date, to the persons entitled thereto without any discrimina-
tion or preference; and
THIRD: to the payment of any Bonds called for optional
redemption pursuant to the provisions of this Resolution.
(2) If the principal of all the Bonds shall have become due
and payable, all such moneys shall be applied to the payment of the
principal and interest then due and unpaid upon the Bonds, without
preference or priority of principal over interest or of interest
over principal, or of any installment of interest over any other
installment of interest, or of any Bond over any other Bond,
ratably, according to the amounts due respectively for principal
and interest, to the persons entitled thereto without any
discrimination or preference.
Section 25. CONTROL BY INSURER. upon the occurrence and
continuance of an Event of Default, any insurer of the payment of
principal and interest on such Bonds, if such insurer shall have
honored all of its commitments under its bond insurance policy,
shall be entitled to direct and control the enforcement of all
rights and remedies with respect to the Bonds it shall insure.
--
34
Section 26. SUPPLEMENTAL RESOLUTION WITHOUT BONDHOLDERS'
Consent. The Issuer, from time to time and at any time, may adopt
such supplemental Resolutions without the consent of the Bond-
holders (which supplemental Resolution shall thereafter form a part
hereof) for any of the following purposes:
(A) To cure any ambiguity or formal defect or omission or to
correct any inconsistent provisions in this Resolution or to
clarify any matters or questions arising hereunder.
(B) To grant to or confer upon the Bondholders any additional
rights, remedies, powers, authority or security that may lawfully
be granted to or conferred upon the Bondholders.
(C) To add to the conditions, limitations and restrictions
on the issuance of Bonds under the provisions of this Resolution.
(D) To add to the covenants and agreements of the Issuer in
this Resolution or to surrender any right or power herein reserved
to or conferred upon the Issuer.
(E) To specify and determine matters and things relative to
such Bonds which are not contrary to or inconsistent with this
Resolution as theretofore in effect, or to amend, modify or rescind
any such authorization, specification or determination at any time
prior to the first delivery of such Bonds.
--
(F) To change or modify the description of the project.
(G) To specify and determine matters necessary or desirable
for the issuance of Capital Appreciation Bonds.
(H) To make any other change that, in the opinion of the
Issuer, would not materially adversely affect the security for the
Bonds but only with the prior consent of AMBAC Indemnity for
changes relating to those Bonds issued by AMBAC Indemnity.
--
Section 27. SUPPLEMENTAL RESOLUTION WITH BONDHOLDERS' AND
INSURER'S CONSENT. Subject to the terms and provisions contained
in this Section 27 and Section 26 hereof, the Holder or Holders of
not less than a majority in aggregate principal amount of the Bonds
then Outstanding shall have the right, from time to time, anything
contained in this Resolution to the contrary notwithstanding, to
consent to and approve the adoption of such supplemental resolution
or resolutions hereto as shall be deemed necessary or desirable by
the Issuer for the purpose of supplementing, modifying, altering,
amending, adding to or rescinding, in any particular, any of the
terms or provisions contained in this Resolution; provided,
however, that if such modification or amendment will, by its terms,
not take effect so long as any Bonds remain outstanding, the
consent of the Holders of such Bonds shall not be required and such
Bonds shall not be deemed to be Outstanding for the purpose of any
35
calculation of Outstanding Bonds under this Section 27. Any
supplemental resolution which is adopted in accordance with the
provisions of this Section 27 shall also require the written
consent of the insurer of any Bonds which are Outstanding at the
time such supplemental resolution shall take effect. No
supplemental resolution may be approved or adopted which shall
permit or require (A) an extension of the maturity of the principal
of or the payment of the interest on any Bond issued hereunder, (B)
reduction in the principal amount of any Bond or the redemption
premium or the rate of interest thereon, (C) the creation of a lien
upon or a pledge of other than the lien and pledge created by this
Resolution which adversely affects any Bondholders, (D) a
preference or priority of any Bond or Bonds over any other Bond or
Bonds, or (E) a reduction in the aggregate principal amount of the
Bonds required for consent to such supplemental resolution.
Nothing herein contained, however, shall be construed as making
necessary the approval by Bondholders or the insurer of the
adoption of any supplemental resolution as authorized in Section
26 hereof.
If at any time the Issuer shall determine that it is necessary
or desirable to adopt any supplemental resolution pursuant to this
Section 27, the Clerk shall cause the Registrar to give notice of
the proposed adoption of such supplemental resolution and the form
of consent to such adoption to be mailed, postage prepaid, to all
Bondholders at their addresses as they appear on the registration
books and to all insurers of Bonds Outstanding. Such notice shall
briefly set forth the nature of the proposed supplemental resolu-
tion and shall state that copies thereof are on file at the offices
of the Clerk and the Registrar for inspection by all Bondholders.
The Issuer shall not, however, be subject to any liability to any
Bondholder by reason of its failure to cause the notice required
by this Section 27 to be mailed and any such failure shall not
affect the validity of such supplemental resolution when consented
to and approved as provided in this Section 27.
Whenever the Issuer shall deliver to the Clerk an instrument
or instruments in writing purporting to be executed by the Holders
of not less than a majority in aggregate principal amount of the
Bonds then Outstanding, which instrument or instruments shall refer
to the proposed supplemental resolution described in such notice
and shall specifically consent to and approve the adoption thereof
in substantially the form of the copy thereof referred to in such
notice, thereupon, but not otherwise, the Issuer may adopt such
supplemental resolution in substantially such form, without
liability or responsibility to any Holder of any Bond, whether or
not such Holder shall have consented thereto.
If the Holders of not less than a majority in aggregate
principal amount of the Bonds Outstanding at the time of the
adoption of such supplemental resolution shall have consented to
and approved the adoption thereof as herein provided, no Holder of
36
,'_ any Bond shall have any right to obj ect to the adoption of such
supplemental resolution, or to object to any of the terms and
provisions contained therein or the operation thereof, or in any
manner to question the propriety of the adoption thereof, or to
enjoin or restrain the Issuer from adopting the same or from taking
any action pursuant to the provisions thereof.
Upon the adoption of any supplemental resolution pursuant to
the provisions of this Section 27, this Resolution shall be deemed
to be modified and amended in accordance therewith, and the
respective rights, duties and obligations under this Resolution of
the Issuer and all Holders of Bonds then Outstanding shall there-
after be determined, exercised and enforced in all respects under
the provisions of this Resolution as so modified and amended.
Section 28. AMENDMENT WITH CONSENT OF INSURER ONLY. If all
of the Bonds Outstanding hereunder are insured as to payment of
principal and interest by an insurer or insurers, and the insurer
is not in default, the Issuer may adopt one or more supplemental
resolutions amending all or any part hereof, with the written
consent of said insurer or insurers, and prior notice to Standard
& Poor's Corporation, and the acknowledgment by said insurer or
insurers that its insurance or guaranty policy will remain in full
force and effect. The consent of the Holders of any Bonds shall
not be necessary. The foregoing right of amendment, however, does
not apply to any amendment with respect to the exclusion, if
applicable, of interest on said Bonds from the gross income of the
Holders thereof for federal income tax purposes nor may any such
amendment deprive the Holders of any Bond of right to payment of
the Bonds from, and their lien on, the Excise Taxes. Upon filing
with the Clerk of evidence of such consent of the insurer or
insurers as aforesaid, the Issuer may adopt such supplemental
resolution. After the adoption by the Issuer of such supplemental
resolution, notice thereof shall be mailed in the same manner as
notice of an amendment under Section 27 hereof.
Section 29. (A) CONSENT OF AMBAC INDEMNITY. Any provision
of this Resolution expressly recognizing or granting rights in or
to AMBAC Indemnity may not be amended in any manner which affects
the rights of AMBAC Indemnity hereunder without the prior written
consent of AMBAC Indemnity.
(B) Consent of AMBAC Indemnity in Addition to Bondholder
Consent. Unless otherwise provided in this Section, AMBAC
Indemnity's consent shall be required in addition to Bondholder
consent, when required, for the following purposes: (i) execution
and delivery of any supplemental, or amendatory resolution; and
(ii) initiation or approval of any action not described in (i)
above which requires Bondholder consent.
(C) Consent of AMBAC Indemnity Upon Default. Anything in
this Resolution to the contrary notwithstanding, upon the occur-
37
.- rence and continuance of an event of default as defined herein,
AMBAC Indemnity shall be entitled, as to those Bonds insured by
AMBAC Indemnity to control and direct the enforcement of all rights
and remedies granted to the Bondholders under this Resolution,
including, without limitation, acceleration of the principal of the
Bonds as described in this Resolution and the right to annul any
declaration of acceleration, and AMBAC Indemnity shall also be
entitled to approve all waivers of Events of Default.
Section 30. NOTICES TO BE GIVEN TO AMBAC INDEMNITY. While
the Municipal Bond Insurance policy is in effect, the Issuer shall
furnish to AMBAC Indemnity:
(a) as soon as practicable after the filing thereof, a copy
of any financial statement of the Issuer and a copy of any audit
and annual report of the Issuer;
(b) a copy of any notice to be given to the registered owners
of any Bonds insured by AMBAC Indemnity, including without limita-
tion, notice of any redemption of or defeasance of Bonds insured
by AMBAC Indemnity, and any certificate rendered pursuant to this
Resolution, relating to the security for the Bonds insured by AMBAC
Indemnity; and
(c) such additional information it may reasonably request.
The Issuer will permit AMBAC Indemnity to discuss the affairs,
finances and accounts of the Issuer or any information AMBAC
Indemnity may reasonably request regarding the security for the
Bonds insured by AMBAC Indemnity with appropriate officers of the
Issuer. The Issuer, will permit AMBAC Indemnity to have access to
any of the Project financed with Bonds insured by AMBAC Indemnity
and have access to and to make copies of all books and records
relating to the Bonds insured by AMBAC Indemnity at any reasonable
time.
AMBAC Indemnity shall have the right to direct an accounting
at the Issuer's expense, and the Issuer's failure to comply with
such direction within thirty (30) days after receipt of written
notice of the direction from AMBAC Indemnity shall be deemed an
Event of Default hereunder; provided, however, that if compliance
cannot occur within such period, then such period will be extended
so long as compliance is begun within such period and diligently
pursued, but only if such extension would not materially adversely
affect the interests of any registered owner of the Bonds.
Notwithstanding any other provision of this Resolution, the
Issuer shall immediately notify AMBAC Indemnity if any time there
are insufficient moneys to make any payments of principal and/or
interest as required and immediately upon the occurrence of any
Event of Default hereunder.
38
Section 31. PAYMENT PROCEDURE PURSUANT TO MUNICIPAL BOND
INSURANCE POLICY. As long as the Municipal Bond Insurance policy
shall be in full force and effect, the Issuer and any paying Agent
agree to comply with the following provisions:
(a) if five (5) days prior to an interest payment date the
paying Agent determines that there will be insufficient funds in
the funds and accounts created pursuant to this Resolution to pay
the principal of or interest on the Bonds insured by the Municipal
Bond Insurance Policy on such interest payment date, the Paying
Agent shall so notify AMBAC Indemnity. Such notice shall specify
the amount of the anticipated deficiency, the Bonds to which such
deficiency is applicable and whether such Bonds will be deficient
as to principal or interest, or both. If the Paying Agent has not
so notified AMBAC Indemnity five (5) days prior to an interest
payment date, AMBAC Indemnity will make payments of principal or
interest due on the Bonds on or before the fifth (5th) business day
next following the date on which AMBAC Indemnity shall have
received notice of nonpayment from the paying Agent.
(b) the Paying Agent shall, after giving notice to AMBAC
Indemnity as provided in (a) above, make available to AMBAC
Indemnity and, at AMBAC Indemnity's direction, to the united States
Trust Company of New York, as insurance trustee for AMBAC Indemnity
or any successor insurance trustee (the "Insurance Trustee"), the
registration books of the Issuer maintained by the Paying Agent,
and all records relating to the funds and accounts maintained under
this Resolution.
(c) the Paying Agent shall provide AMBAC Indemnity and the
Insurance Trustee with a list of registered owners of Bonds
entitled to receive principal or interest payments from AMBAC
Indemnity under the terms of the Municipal Bond Insurance Policy,
and shall make arrangements with the Insurance Trustee (i) to mail
checks or drafts to the registered owners of Bonds entitled to
receive full or partial interest payments from AMBAC Indemnity and
(ii) to pay principal upon Bonds surrendered to the Insurance
Trustee by the registered owners of the Bonds entitled to receive
full or partial principal payments from AMBAC Indemnity.
(d) the Paying Agent shall, at the time it provides notice
to AMBAC Indemnity pursuant to (a) above, notify registered owners
of Bonds entitled to receive the payment of principal or interest
thereon from AMBAC Indemnity (i) as to the fact of such entitle-
ment, (ii) that AMBAC Indemnity will remit to them all or a part
of the interest payments next coming due upon proof of Bondholder
entitlement to interest payments and delivery to the Insurance
Trustee, in form satisfactory to the Insurance Trustee, of an
appropriate assignment of the registered owner's/right to payment,
(iii) that should they be entitled to receive full payment of
principal from AMBAC Indemnity, they must surrender their Bonds
(along with an appropriate instrument of assignment in form
39
satisfactory to the Insurance Trustee to permit ownership of such
Bonds to be registered in the name of AMBAC Indemnity) for payment
to the Insurance Trustee, and not the paying Agent, and (iv) that
should they be entitled to receive partial payment of principal
from AMBAC Indemnity, they must surrender their Bonds for payment
thereon first to the Paying Agent who shall note on such Bonds the
portion of the principal paid by the paying Agent and then, along
with an appropriate instrument of assignment in form satisfactory
to the Insurance Trustee, to the Insurance Trustee, which will then
pay the unpaid portion of principal.
(e) in the event that the Paying Agent has notice that any
payment of principal of or interest on a Bond which has become due
for payment and which is made to a Bondholder by or on behalf of
the Issuer has been deemed a preferential transfer and theretofore
recovered from its registered owner pursuant to the United States
Bankruptcy Code by a trustee in bankruptcy in accordance with the
final, nonappealable order of a court having competent jurisdic-
tion, the Paying Agent shall, at the time AMBAC Indemnity is
notified pursuant to (a) above, notify all registered owners that
in the event that any registered owner's payment is so recovered,
such registered owner will be entitled to payment from AMBAC
Indemnity to the extent of such recovery if sufficient funds are
not otherwise available, and the Paying Agent shall furnish AMBAC
Indemnity its records evidencing the payments of principal of and
interest on the Bonds which have been made by the Paying Agent, and
subsequently recovered from registered owners and the dates on
which such payments were made.
(f) in addition to those rights granted AMBAC Indemnity under
this Resolution, AMBAC Indemnity shall, to the extent it makes
payments of principal of or interest on Bonds, become subrogated
to the rights of the recipients of such payments in accordance with
the terms of the Municipal Bond Insurance Policy, and to evidence
such subrogation (i) in the case of subrogation as to claims for
past due interest, the Paying Agent shall note AMBAC Indemnity's
rights as subrogee on the registration books of the Issuer main-
tained by the Paying Agent, upon receipt from AMBAC Indemnity of
proof of the payment of interest thereon to the registered owners
of the Bonds, and (ii) in the case of subrogation as to claims for
past due principal, the Paying Agent shall note AMBAC Indemnity's
rights as subrogee on the registration books of the Issuer main-
tained by the Paying Agent upon surrender of the Bonds by the
registered owners thereof together with proof of the payment of
principal thereof.
Section 32. PARTIES INTERESTED HEREIN. Nothing in this
Resolution expressed or implied is intended or shall be construed
to confer upon, or to give to, any person or entity, other than the
Issuer, AMBAC Indemnity (as to those Bonds insured by AMBAC
Indemnity), the Paying Agent, and the registered owners of the
Bonds, any right, remedy or claim under or by reason of this
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Resolution or any covenant, condition or stipulation hereof, and
all covenants, stipulations, promises and agreements in this
Resolution, contained by and on behalf of the Issuer shall be for
the sole and exclusive benefit of the Issuer, AMBAC Indemnity (as
to those Bonds insured by AMBAC Indemnity), Paying Agent, and the
registered owners of the Bonds.
Section 33. DEFEASANCE. If the Issuer shall payor cause to
be paid or there shall otherwise be paid to the Holders of all
Bonds the principal, any redemption premium, if applicable, and
interest due or to become due thereon, at the times and in the
manner stipulated therein and in this Resolution, then the pledge
of the Excise Taxes, and all covenants, agreements and other
obligations of the Issuer to the Bondholders, shall thereupon
cease, terminate and become void and be discharged and satisfied.
In such event, the Paying Agents shall pay over or deliver to the
Issuer all money or securities held by them pursuant to this
Resolution which are not required for the payment or redemption of
Bonds not theretofore surrendered for such payment or redemption.
Any Bonds or interest installments appertaining thereto,
whether at or prior to the maturity or redemption date of such
Bonds, shall be deemed to have been paid within the meaning of this
Section 33 if (A) in case any such Bonds are to be redeemed prior
to the maturity thereof, there shall have been taken all action
necessary to call such Bonds for redemption and notice of such
redemption shall have been duly given or provision shall have been
made for the giving of such notice, and (B) there shall have been
deposited in irrevocable trust with a banking institution or trust
company by or on behalf of the Issuer either moneys in an amount
which shall be sufficient, or Federal Securities the principal of
and the interest on which when due will provide moneys which,
together with the moneys, if any, deposited with such bank or trust
company at the same time shall be sufficient, to pay the principal,
of any redemption premium, if applicable, and interest due and to
become due on said Bonds on and prior to the redemption date or
maturity date thereof, as the case may be. Except as hereafter
provided, neither the Federal Securities nor any moneys so deposit-
ed with such bank or trust company nor any moneys received by such
bank or trust company on account of principal of or redemption
premium, if applicable, or interest on said Federal Securities
shall be withdrawn or used for any purpose other than, and all such
moneys shall be held in trust for and be applied to, the payment,
when due, of the principal of or redemption premium, if applicable,
of the Bonds for the payment or redemption of which they were
deposited and the interest accruing thereon to the date of maturity
or redemption; provided, however, the Issuer may substitute new
Federal Securities and moneys for the deposited Federal Securities
and moneys if the new Federal Securities and moneys are sufficient
to pay the principal of or redemption premium, if applicable, and
interest on the refunded Bonds.
.'-..
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,_ In the event the Bonds for which moneys are to be deposited
for the payment thereof in accordance with this Section 33 are not
by their terms subject to redemption within the next succeeding
sixty (60) days, the Issuer shall cause the Registrar to mail a
notice to the Holders of such Bonds that the deposit required by
this Section 33 of moneys and/or Federal Securities has been made
and said Bonds are deemed to be paid in accordance with the provi-
sions of this Section 33 and stating such maturity or redemption
date upon which moneys are to be available for the payment of,
including any redemption premium, and interest on said Bonds.
Nothing herein shall be deemed to require the Issuer to call
any of the Outstanding Bonds for redemption prior to maturity
pursuant to any applicable optional redemption provisions, or to
impair the discretion of the Issuer in determining whether to
exercise any such option for early redemption.
In the event that the principal and/or interest due on any
Bonds shall be paid by AMBAC Indemnity pursuant to the Municipal
Bond Insurance Policy, the Bonds shall remain Outstanding for all
purposes, not be defeased or otherwise satisfied and not be
considered paid by the Issuer, and the assignment and pledge of the
Excise Taxes and all covenants, agreements and other obligations
of the Issuer to the registered owners shall continue to exist and
shall run to the benefit of AMBAC Indemnity, and AMBAC Indemnity
shall be subrogated to the rights of such registered owners.
--
Section 34. HOLDERS NOT AFFECTED BY USE OF PROCEEDS. The
Holders of the Bonds shall have no responsibility for the use of
the proceeds thereof, and the use of such proceeds by the Issuer
shall in no way affect the rights of such Holders. The Issuer
shall be irrevocably obligated to pay the principal of and interest
on the Bonds and to make all reserve and other payments provided
for herein from the Excise Taxes notwithstanding any failure of the
Issuer to use and apply such proceeds in the manner provided
herein.
Section 35. CAPITAL APPRECIATION BONDS. For the purposes of
(i) receiving payment of the redemption price of a Capital
Appreciation Bond if redeemed prior to maturity, (ii) receiving
payment if the principal of all Bonds is declared immediately due
and payable, (iii) computing Bond Service Requirement (iv) in
computing the amount of Holders required for any notice, consent,
request or demand hereunder for any purpose whatsoever, the
principal amount of a Capital Appreciation Bond shall be deemed to
be its Accreted Value.
Section 36. SEVERABILITY. If anyone or more of the cove-
nants, agreements or provisions of this Resolution should be held
contrary to any express provision of law or contrary to the policy
of express law, though not expressly prohibited, or against public
policy, or shall for any reason whatsoever be held invalid, then
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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 or any coupons
issued thereunder.
Section 37. INCONSISTENT RESOLUTIONS. All prior resolutions
of the Issuer inconsistent with the provisions of this Resolution
are hereby modified, supplemented and amended to conform with the
provisions herein contained.
Section 38. EFFECTIVE DATE. The provisions of this reso-
lution shall take effect immediately upon its passage.
ADOPTED this 1st day of May, 1989.
(SEAL)
CITY COMMISSION OF THE CITY OF
WINTER SPRINGS, FLORIDA
Leanne M. Grove, Mayor
ATTEST:
Mary T. Norton
City Clerk
Approved as to Form and Legal
Sufficiency:
City Attorney
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