HomeMy WebLinkAboutR-85-44
RESOLUTION I!- is - #
A RESOLUTION AUTHORIZING THE ISSUANCE OF NOT
EXCEEDING $2,025,000 GOLF COURSE REVENUE BONDS
OF THE CITY OF SEBASTIAN, FLORIDA, TO PROVIDE
FUNDS FOR THE PAYMENT OF $1,600,000 OUTSTAND-
ING PRINCIPAL AMOUNT OF GOLF COURSE REVENUE
BOND ANTICIPATION NOTES DUE MARCH 1, 1986, AND
FOR THE CONSTRUCTION OF MUNICIPAL GOLF COURSE
FACILITIES; AUTHORIZING THE ISSUANCE OF RE-
FUNDING BONDS, ADDITIONAL PARITY BONDS AND
BOND ANTICIPATION NOTES; PROVIDING FOR THE
RIGHTS OF THE HOLDERS OF THE BONDS, REFUNDING
BONDS, ADDITIONAL PARITY BONDS AND NOTES;
PROVIDING FOR THE PAYMENT THEREOF FROM CERTAIN
OF THE CITY'S GOLF COURSE REVENUES, PUBLIC
SERVICE TAXES AND ELECTRIC FRANCHISE FEES;
PLEDGING THE GOLF COURSE REVENUES, PUBLIC
SERVICE TAXES AND ELECTRIC FRANCHISE FEES AS
SECURITY FOR THE BONDS, REFUNDING BONDS, ADDI-
TIONAL PARITY BONDS AND NOTES; MAKING CERTAIN
OTHER COVENANTS AND AGREEMENTS IN CONNECTION
THEREWITH; AND PROVIDING SEVERABILITY, CON-
FLICTS AND EFFECTIVE DATE.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEBASTIAN, FLORIDA,
THAT:
ARTICLE I
Authority for This Resolution
This Resolution is enacted pursuant to (a) Chapter 166, Florida Stat-
utes, (b) the City Charter (the "City Charter") of the City of Sebastian,
Florida, being Chapter 16683, Laws of Florida, Acts of 1933, as amended and
supplemented and (c) Article VIII, Section 2, Florida Constitution.
ARTICLE II
Definitions
SECTION 2.01.
otherwise requires:
Definitions.
As used herein, unless the context
"Accountant" means a firm of independent certified public accountants
retained by the City under the provisions of this Resolution to perform and
carry out the duties, including annual audit reports, imposed by this Resolu-
tion.
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,
"Act" means Chapter 166, Florida Statutes, the City Charter and Arti-
cle VIII, Section 2, Florida Constitution.
"Additional Bonds" means bonds or other instruments of indebtedness
which the City may issue from time to time which shall rank equally with the
Bonds herein described with respect to the lien on and pledge of the Designat-
ed Revenues and which shall have been issued after meeting the requirements
stipulated herein.
"Additional Parity Bonds" means Bonds or other instruments of indebt-
edness which the City may issue from time to time which shall rank equally
with the Bonds herein described with respect to the lien on and pledge of the
Pledged Revenues and which shall have been issued after meeting the require-
ments stipulated herein.
"Amortization Installment" means the funds to be deposited in the
Debt Service Account in a given Bond Year for the payment at maturity or re-
demption of Term Bonds on the next succeeding October 1.
time to
Section
"Annual Budget" means the budget, as
time, prepared by the Issuer for each
10.01 hereof and in accordance with the
amended and supplemented from
Fiscal Year in accordance with
laws of the State of Florida.
"Authenticating Agent" means the Registrar and any bank, trust compa-
ny or other person designated as an Authenticating Agent by or in accordance
with Section 15.01 hereof, each of which (other than the Issuer or an official
or employee of the Issuer) shall be a transfer agent registered in accordance
with Section 17A(c) of the Securities Exchange Act of 1934, as amended.
"Authorized Depository" means any bank, trust company, national bank-
ing association, savings and loan association, savings bank or other banking
association selected by the Issuer as a depository, which is authorized under
Florida law to be a depository of municipal funds and which has qualified with
all applicable state and federal requirements concerning the receipt of Issuer
funds.
"Bond Counsel" means counsel experienced
validity of, and the tax exemption applicable to
states and their political subdivisions.
in matters relating to the
interest on, obligations of
"Bondholders" means the registered owners (or their authorized repre-
sentatives) of Bonds.
"Bond Payment Account" means the account established by that name
pursuant to Section 8.01 hereof.
"Bonds" means the Bonds, Refunding Bonds and any Additional Parity
Bonds issued hereunder, but does not include Additional Bonds.
"Bond Service Charges" means at any
the principal of and interest and any premium
or payable at that time, as the case may be.
time or for any period of time,
due on the Bonds for that period
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"Bond Service Requirement" means for
after subtracting any accrued and capitalized
been deposited into the Debt Service Account
Construction Account for that purpose from the
a given Bond Year the remainder
interest for that year that has
or a separate subaccount in the
sum of:
(a) The amount required to pay the interest coming due on Bonds
during that Bond Year,
(b) The amount required to pay the principal of Serial Bonds and the
principal of Term Bonds maturing in that Bond Year that are not
included in the Amortization Installments for such Term Bonds,
(c) The Amortization Installments for all Term Bonds for that Bond
Year, and
( d)
The premium, if any,
deemed in that Bond
Installment.
payable
Year in
on all Bonds required to be re-
satisfaction of the Amortization
"Bond Year" means the annual period beginning on the first day of
October of each year and ending on the last day of September of the following
year; provided that when such term is used to describe the period during which
deposits are to be made pursuant to Section 8.05 hereof to pay interest on the
Bonds or any Bonds falling due on October or the principal on any Bonds matur-
ing or becoming subject to redemption on October 1 of any year shall be deemed
to mature or become subject to redemption on the last day of the preceding
Bond Year.
"City" means the City of Sebastian, Florida.
"Clerk" means the Clerk or any Deputy Clerk of the Issuer.
"Code" means the Internal Revenue Code of 1954, as amended. Refer-
ences to the Code and Sections thereof include relevant applicable regulations
and proposed regulations thereunder and any successor provisions to those
Sections, regulations or proposed regulations.
"Completion Date" means for each Project, the cost of which is to be
paid from proceeds of one or more Series of Bonds issued hereunder, the date
on which such Project is completed and placed in service.
"Construction Account" means the account established by that name
pursuant to Section 8.01 hereof.
"Cost of the Project" means, with respect to the Project and each
Project authorized by subsequent ordinance or resolution pursuant to the terms
of this Resolution, those costs described in Section 4.02 hereof.
"Council" means the City Council of the Issuer.
"Debt Service Account" means the account established by that name
pursuant to Section 8.01 hereof.
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"Designated Revenues" means the Public Service Taxes and the Electric
Franchise Fees. The lien enjoyed by the Bonds on the Electric Franchise Fees
may, at the option of the City, be released and discharged and shall no longer
be considered a part of the "Designated Revenues" provided that the historical
collection of the Public Services Taxes received by the City shall, for each
of the immediately preceding three fiscal years, be at least equal to one and
a half times (l.SOx) the maximum annual principal and interest requirement on
the Bonds which may be outstanding at the time. Such release shall be imple-
mented by a resolution duly adopted by the City Council to that effect after
the Accountant shall have provided a certificate to the City stating and il-
lustrating compliance with the above described earnings test, which certifi-
cate shall be a part of the resolution adopted by the City. Copies of such
proceedings shall be mailed, postage prepaid, to all registered holders of the
Bonds. The City shall not have the right to release the lien of the Bonds on
the Public Service Taxes for any reason whatsoever so long as any of the Bonds
and any interest thereon shall remain outstanding and unpaid.
"Director
such other finance
Florida Statutes.
of Finance" means the Director
director of the Issuer as
of Finance of the Issuer or
defined in Section 218.403,
"Electric Francise Fees" means the Issuer's annual collections of
Electric Franchise Fees received under a Franchise Agreement between the City
and Florida Power and Light Company pursuant to Ordinance No. 0-82-3, adopted
May 10, 1982, as such ordinance shall be amended or supplemented.
"Facilities" means the
project and any other municipal
City as part of the Facilities.
City's now
improvements
operational 18-hole golf course
designated by resolution of the
"Federal Securities" means direct obligations of the United States of
America or obligations the payment when due of the principal of and interest
on which is fully and unconditionally guaranteed by the United States of
America.
"Fiscal Year" means the period commencing on October I of each year
and ending on the succeeding September 30, or such other consecutive 12-month
period as may be hereafter designated as the fiscal year of the Issuer pursu-
ant to general law.
"Golf Course Consultant" means
fully qualified to provide services in
management and design, employed by the
this Resolution.
the consultant of recognized standing,
the area of golf course consultation,
City from time to time as required by
"Governing Body" means the Council.
"Gross Revenues" means all income or earnings derived from the opera-
tion of the Facilities, including, but not limited to, green fees, cart rent-
als, membership or annual dues, concession leases, rental and franchise in-
come, miscellaneous and investment income and any other source of moneys de-
rived from the operation of the Facilities.
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"Holder" means any registered owner (or his authorized representa-
tive) of Bonds or Notes, as the case may be.
"Interest Payment Date" means with respect to any Bonds or Notes, the
date on which an installment of interest thereon shall become due and payable.
"Investment Obligations" means (i) Federal Securities; or (ii) direct
obligations of the Federal Intermediate Credit Banks, Federal Land Banks,
Federal Farm Credit System, Federal Home Loan Banks or Banks for Cooperatives,
or (iii) certificates of deposit or other interest bearing obligations of any
bank, savings and loan association or trust company (including any Authorized
Depository) authorized to engage in the banking business, either fully insured
by the Federal Deposit Insurance Corporation or the Federal Savings and Loan
Insurance Corporation or fully collateralized by obligations described in (i)
or (ii) above having a fair market value (determined at least quarterly) equal
to the principal amount of such certificates of deposit or other interest
bearing obligations, or (iv) repurchase agreements with any Authorized Deposi-
tory or primary reporting government dealers, in each case having a capital
and surplus or net capital or not less than $20,000,000, secured by collateral
of the type and in the amount described in (iii) above, or (v) general obliga-
tion or full faith and credit bonds, notes or obligations of any state or any
municipality or political subdivision of any state, if such obligations are
rated by at least one nationally recognized rating service in either of the
two highest classifications approved by the Comptroller of the Currency for
the investment of funds of national banks, or any insured revenue bonds, notes
or obligations of any such entities, or any agency or authority thereof, if
such obligations are rated by at least one nationally recognized rating ser-
vice in the highest such classification, or (vi) any other obligations in
which surplus municipal funds may be invested under the laws of the State of
Florida, including, without limitation, the Local Government Surplus Funds
Trust Fund created and established pursuant to Part IV, Chapter 218, Florida
Statutes, as amended.
"Issuer" means the City of Sebastian, Florida.
"Maximum Bond Service Requirement" means, as of any particular date
of calculation, the largest Bond Service Requirement for any remaining Bond
Year, except that with respect to any Bonds for which Amortization Install-
ments 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 to be redeemed from Amortization Installments
to be made in prior Bond Years.
"Mayor" means the Mayor of the Issuer or in his absence or inability
to perform, the Vice Mayor of the Issuer.
"Net Revenues" means the amount of the excess of Gross Revenues after
deduction of Operation and Maintenance Expenses.
"Note Service Charges" means at any
the principal of and interest and any premium
or payable at that time, as the case may be.
time or for any period of time,
due on any Notes for that period
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"Notes" means all notes issued hereunder in anticipation of the issu-
ance of any Bonds.
"Operation and Maintenance EKpenses" means the Issuer's reasonable
and necessary current eKpenses of maintenance, repair and operation of the
Facilities but shall not include items of a capital nature and depreciation.
Such eKpenses shall not include the Maximum Bond Service Requirement.
"Original Purchaser" means the
purchaser or purchasers in the Purchase
Notes.
Person or Persons identified as the
Agreement relating to the Bonds or the
"Outstanding" Bonds or Notes means all Bonds or Notes which have been
issued pursuant to this Resolution except:
(a) Bonds or Notes cancelled after purchase in the open market or
because of payment at or redemption prior to maturity;
(b) Bonds or Notes for the payment or redemption of which cash funds
or Federal Securities or any combination thereof shall have been
theretofore irrevocably set aside in a special account with one
or more Paying Agents or escrow agents (whether upon or prior to
the maturity or redemption date of any such Bonds or Notes) in
an amount which, together with earnings on such Federal Securi-
ties, will be sufficient to pay the principal of and interest on
such Bonds or Notes at maturity or upon their earlier redemp-
tion; provided that, if such Bonds or Notes are to be redeemed
before the maturity thereof, notice of such redemption shall
have been given according to the requirements of this Resolution
or irrevocable instructions directing the timely publication of
such notice and directing the payment of the principal of and
interest on such Bonds or Notes at such redemption dates shall
have been given to the Paying Agents or escrow agents;
(c)
Bonds or Notes which are
hereof or in lieu of which
under Section 6.10 hereof;
deemed paid pursuant to Section 6.10
other Bonds or Notes have been issued
and
(d) For purposes of voting, giving directions and granting consents,
Bonds and Notes held by the Issuer or by an agent of the Issuer
shall not be deemed Outstanding.
"Paying Agent" means the Issuer or any Authorized Depository desig-
nated by the Issuer to serve as a Paying Agent or place of payment for such
Bonds or Notes that shall have agreed to arrange for the timely payment of the
principal of, interest on and redemption premium, if any, with respect to
Bonds or Notes to the registered owners thereof, from funds made available
therefor by the Issuer, and any successors designated pursuant to this Resolu-
tion, and shall include any escrow agent holding moneys or federal securities
for the payment of Bonds or Notes under the provisions of Section 14.02 here-
of.
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"Person" or words importing persons mean firms, associations, part-
nerships (including without limitation, general and limited partnerships),
joint ventures, societies, estates, trusts, corporations, public or govern-
mental bodies, other legal entities and natural persons.
"Pledged Revenues" means the
pledged; the Designated Revenues and
investment of moneys on deposit from
counts created hereunder.
Gross
all
time
Revenues, and, to the extent then
income derived by the Issuer from
to time in the Trust Fund and Ac-
"Predecessor Bond" or "Predecessor Note" of any particular Bond or
Note means every previous Bond or Note evidencing all or a portion of the same
debt as that evidenced by the particular Bond or Note. For the purposes of
this definition, any Bond or Note authenticated and delivered under Section
6.10 hereof in lieu of a lost, stolen or destroyed Bond or Note shall, except
as otherwise provided in Section 6.10 hereof, be deemed to evidence the same
debt as the lost, stolen or destroyed Bond or Note.
"Project" means the acquisition, construction, additions, improve-
ments and the equipping and furnishing of municipal capital improvements with
respect to the Facilities as outlined in the report of Charles F. Ankrom,
Inc., entitled "Market Study & Financial Feasibility Study, 1985 Update Re-
port," and any subsequent project authorized by subsequent ordinance or reso-
lution pursuant to the terms of this Resolution.
"Public Service Taxes"
collected at any time upon the
gast or water service, telephone
the authority granted by Section
means the Public Service Taxes levied and
purchase of electricity, metered or bottled
or telegraph service and fuel oil pursuant to
166.231, Florida Statutes.
"Purchase Agreement" means the Purchase Agreement awarding Bonds or
Notes to the Original Purchaser thereof.
"Register" means the books kept and maintained by the Registrar for
registration and transfer of Bonds and Notes pursuant to Section 6.07 hereof.
"Registrar" means the Issuer or any bank, trust company or other
person designated as Registrar for the Bonds pursuant to a subsequent ordi-
nance or resolution of the Governing Body of the Issuer, each of which (other
than the Issuer, or an official or employee of the Issuer) shall be a transfer
agent registered in accordance with Section l7(A)(c) of the Securities Ex-
change Act of 1934, as amended.
"Regular Record Date" or "Record Date" means, when used with respect
to any Bond or Note, the fifteenth day of the calendar month next preceding an
Interest Payment Date applicable to that Bond or Note.
"Reserve Account" means the account by that name established pursuant
to Section 8.01 hereof.
"Serial Bonds" means all Bonds other than Term Bonds.
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"Series" means the Bonds or Notes of an issue authenticated and de-
livered in a single transaction, payable from an identical source of revenue
and identified pursuant to the supplemental ordinance or resolution authoriz-
ing such Bonds or Notes as a separate Series, regardless of variations in
maturity, interest rate, Amortization Installments or other provisions, and
any Bonds or Notes thereafter authenticated and delivered in lieu of or in
substitution of a Series of Bonds or Notes issued pursuant to this Resolution.
"Special Record
date established by the
terest on that Bond or
hereof.
Date" means, with respect
Issuer in connection with
Note pursuant to Section
to any Bond or Note,
the payment of overdue
6.08 and Section 12.09
the
in-
Cd)
"State" means the State of Florida.
"Term Bonds" means Bonds for which Amortization Installments are
es tabl1shed.
"Trust Fund" means the trust fund established by Section 8.01 hereof.
SECTION 2.02. Interpretation. Any reference herein to the Issuer,
to the Governing Body or to any member or officer of either, includes entities
or officials succeeding to their respective functions, duties or responsibili-
ties pursuant to or by operation of law or lawfully performing their func-
tions.
Any reference to a section or provision of the Constitution of the
State or the Act, or to a section, provision or chapter of the Florida Stat-
utes or Laws of Florida, or to any statute of the United States of America,
includes that section, provision or chapter as amended, modified, revised,
supplemented or superseded from time to time; provided, that no amendment,
modification, revision, supplement or superseding section, provision or
chapter shall be applicable solely by reason of this provision, if it consti-
tutes in any way an impairment of the rights or obligations of the Issuer, the
officers, employees and members of the Governing Body of the Issuer, the Hold-
ers, the Registrar, the Paying Agents, the Authenticating Agents or any escrow
agents under this Resolution, the Bonds, the Notes or any other instrument or
document entered into in connection with any of the foregoing, including with-
out limitation, any alteration of the obligation to pay Bond Service Charges
on the Bonds or Note Service Charges on the Notes in the amount and manner, at
the times, and from the sources provided herein and in the supplemental ordi-
nance or resolution providing for the issuance of the Bonds or Notes, except
as permitted herein.
Unless the context indicates otherwise, words importing the singular
number include the plural number, and vice versa; the terms "hereof," "here-
by," "herein," "hereto," "hereunder" and similar terms refer to this Resolu-
tion; and the term "hereafter" means after, and the term "heretofore" means
before, the date of this Resolution. Words of any gender include the correla-
tive words of the other genders, unless the sense indicates otherwise.
SECTION 2.03. Captions and Headings. The captions and headings in
this Resolution are solely for convenience of reference and in no way define,
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limit or describe the scope or intent of any Articles, Sections, subsections,
paragraphs, subparagraphs or clauses hereof.
ARTICLE III
Findings
It is hereby ascertained, determined and declared that:
(a)
The Issuer is authorized by
and maintain municipal golf
ery, equipment, and rights
facilities related thereto;
the City Charter to acquire, operate
course facilities, including machin-
in land and other appurtenances and
(b) By Resolution R-80-45, duly adopted by the Issuer on November
19, 1980, the Issuer authorized the acquisition and construction
of the Facilities and provided for the financing of a portion of
the cost thereof by authorizing the issuance, sale and delivery
of $1,600,000 Golf Course Revenue Bond Anticipation Notes (the
"Golf Course Notes") dated March 1 , 1981 and maturing March 1,
1986;
(c)
It is necessary and desirable
and to acquire and construct the
Issuer's inhabitants;
to refund the Golf Course Notes
Project for the benefit of the
(d) The Issuer desires to issue the Bonds to provide funds for the
following purposes:
(i) to pay the unpaid principal of and accrued interest on
the Golf Course Notes;
(ii) to provide funds to pay the costs of the Project;
(e)
The Issuer is authorized
the proceeds thereof to
refund or advance refund
under the Act to issue Bonds and
pay the Cost of the Project,
the Golf Course Notes;
to use
and to
(f) Contemporaneously with the issuance of the Bonds, Bond proceeds
shall be placed in an escrow account, all or most of which will
be used to purchase Federal Securities, the principal and inter-
est on which, together with any cash in the escrow account, will
be sufficient to pay the unpaid principal of and accrued inter-
est on the Golf Course Notes in full at their maturity. Upon
establishment of that escrow the prior pledge of and lien on all
non-ad valorem revenues of the City shall be released and be
null and void and the lien on the Pledged Revenues granted
hereunder shall become a first and prior lien thereon. Except
as above provided, Pledged Revenues are not now encumbered and
the Issuer has full authority to irrevocably pledge the same
hereunder. The Issuer shall never be required to levy ad
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valorem taxes on any property to pay the principal of, interest
on or any premium with respect to the Bonds or to make any of
the required sinking fund, reserve or other payments required
herein, and the Bonds shall not constitute a lien on any
property owned by or situated within the limits of the Issuer;
(g) The Pledged Revenues to be received by the Issuer will be suffi-
cient to pay all of the Bond Service Charges with respect to the
Bonds as the same become due and to make all sinking fund, re-
serve and other payments in connection with the Bonds required
by this Resolution; and
(h) The Bonds shall be and are equally secured by an irrevocable
pledge of the Pledged Revenues without priority for number, date
of sale, date of execution, or date of delivery, except as ex-
pressly provided herein. Subject to the priority granted the
Bonds hereby, any Notes issued hereunder shall be and are equal-
ly secured by such pledge of the Pledged Revenues.
ARTICLE IV
Acquisition and Construction of the Project
SECTION 4.01. Authorization of the Project. The acquisition,
construction and equipping of the Project is hereby authorized. The Issuer
covenants to commence the acquisition and construction of the Project promptly
upon the delivery of the Bonds issued to pay the cost thereof, and to thereaf-
ter work with due diligence to complete the Project.
SECTION 4.02. Cost of the Project. Proceeds received from the sale
of the Bonds are hereby authorized to be used to pay the Cost of the Project.
The Cost of the Project shall include, without limiting the items of cost
permitted under the Act, the following items to the extent they relate to such
Project:
(i) all direct costs of items described in the plans and
specifications for the Project and all direct costs of
equipment, furnishings and other tangible personal
property;
(ii)
all costs
structing,
tion;
of planning, designing, acquiring, con-
financing and placing the Project in opera-
(iii)
all costs of issuance of the Bonds, including the cost
of municipal bond insurance, bond counsel, underwrit-
er's and underwriters' counsel, special tax counsel,
financial advisors, printing costs, rating agency
fees, initial acceptance fees of paying agents, regis-
trars, trustees, depositories and financial institu-
tions providing special credit facilities with respect
to the Bonds;
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(iv) the cost of acquiring and improving any lands or in-
terest therein and all of the properties deemed neces-
sary or convenient for the maintenance and operation
of the Project;
(v) all engineering, legal and financial costs and ex-
penses;
(vii)
(vi) all expenses for estimates of costs and of revenues;
(viii)
costs of obtaining governmental and regulatory per-
mits, licenses and approvals;
all fees of special advisors,
tants associated with one or
jects;
accountants and consul-
more aspects of the Pro-
(ix) all costs relating to claims or judgments arising out
of the construction of the Project;
(x) all federal, state and local taxes and payments in
lieu of taxes required to be paid in connection with
the acquisition and construction of the Project;
(xi) all amounts required to be paid into the Reserve Ac-
count or Debt Service Account upon the issuance of the
Bonds;
(xii)
(xiii)
(xiv)
(xv)
the payment of all principal, premium, if any, and
interest when due, of the Bonds or other evidences of
indebtedness issued to finance all or any portion of
the cost of the Project, whether at the maturity
thereof or at the due date of interest or upon redemp-
tion thereof;
interest on the Bonds prior to and during construction
of the Project for which such Bonds were issued, and
for such additional periods as the Issuer may reason-
ably determine to be necessary or desirable;
the reimbursement of the Issuer for all costs of the
Project that have been advanced by the Issuer from its
available funds before the delivery of the Bonds
issued to finance such costs and the reimbursement of
the Issuer for debt service paid on any Bonds, Notes
or loans providing financing for any costs of the
Project;
such other costs and expenses which shall be necessary
or incidental to the financing herein authorized and
the construction and acquisition of the Project and
the placing of same in use or operation; and
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.
(xvi)
to deposit with any Paying Agent amounts required to
refund, advance refund or pay the Golf Course Notes
and any Bonds or Notes issued hereunder.
ARTICLE V
Resolution to Constitute Contract
In consideration of the acceptance of the Bonds and Notes authorized
to be issued hereunder by those who shall hold the same from time to time,
this Resolution shall be deemed to be and shall constitute a contract between
the Issuer and the Holders thereof. The covenants and agreements herein set
forth to be performed by the Issuer shall be for the benefit, protection and
security of the Holders of all Bonds and Notes and all Bonds shall be of equal
rank and without preference, priority or distinction over any other thereof,
except as expressly provided herein, and all Notes shall be of equal rank,
without premium, priority or distribution over any other Note except as ex-
pressly provided herein.
ARTICLE VI
The Bonds and Notes
SECTION 6.01. Authorization of Bonds and Notes. Subject and pur-
suant to the provisions hereof, Bonds to be known as "City of Sebastian,
Florida, Golf Course Revenue Bonds, Series 1985" (the "Series 1985 Bonds"),
are hereby authorized to be issued in an aggregate principal amount of not
exceeding Two Million Twenty-five Thousand Dollars ($2,025,000) for the pur-
pose of paying the Golf Course Notes at their maturity and financing all or
any part of the Cost of the Project. In addition, the Issuer may, on the
conditions set forth herein, issue Refunding Bonds to refund, or advance re-
fund, Bonds issued hereunder, Additional Parity Bonds and Notes, in anticipa-
tion of the issuance of any Series of Additional Parity Bonds, as herein pro-
vided.
SECTION 6.02. Description of Bonds. The Bonds authorized hereunder
may be issued in one or more Series that may be delivered from time to time.
The Bonds of one Series shall bear any designations which may be necessary or
advisable to distinguish them from Bonds of any other Series. The Bonds shall
express the purpose for which they are issued and any other statements or
legends which may be required by law. All Bonds and Bond Service Charges
thereon shall be payable in lawful money of the United States of America.
The Series 1985 Bonds will be issued as fully registered bonds in the
denomination of $5,000 each or any integral multiple thereof. The Series 1985
Bonds will be dated October 1, 1985 and will bear interest semi-annually com-
mencing April 1, 1986, with the first principal maturity to be payable October
1, 1986 and each October 1 thereafter. Interest shall be paid to bondholders
by draft or check made payable to the registered owners of the Series 1985
Bonds. Nothing herein shall be construed as limiting the ability of the City
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to deposit the funds and accounts created hereinafter at a hank of its own
choosing.
The Series 1985 Bonds may be exchanged or transferred upon surrender
thereof at the principal corporate office of the bond registrar subject to the
limitations contained in this Resolution which are applicable to registered
bonds generally, but the registrar shall not be required to effect any such
transfer or exchange during the 15 days immediately preceding publication or
mailing of a notice of redemption or for any Series 1985 Bonds previously
selected for redemption in whole or in part on a specific date.
Additional terms and details
Series 1985 Bonds, shall be specified
tion.
with respect to the issuance of the
in a supplemental ordinance or resolu-
The Issuer shall by supplemental ordinance or resolution authorize
each subsequent Series of Bonds and shall specify the following with respect
thereto: the authorized principal amount of such Series; the Project to be
financed with the proceeds thereof; the Series designation and date of such
Series; terms of maturity or maturities of the Bonds of such Series; the de-
nominations, numbering and lettering of such Series, provided that the Bonds
shall be in the denominations of $1000 or any integral multiple thereof; the
Registrar, Authenticating Agents, Paying Agents and place or places of payment
of such Bonds; the redemption prices for such Series of Bonds and any terms of
redemption not inconsistent with the provisions of this Resolution which may
include mandatory redemption at the election of the Holder or registered owner
thereof; the amount and date of each Amortization Installment, if any, for
Term Bonds of such Series; the use of proceeds of such Series of Bonds, in-
cluding any deposits required to be made into the Construction Account, Re-
serve Account and the Debt Service Account; in the case of Bonds issued to
refund or advance refund any Bonds, Notes or other prior outstanding obliga-
tions the amount to be deposited with any Paying Agent or escrow agent for the
payment of debt service on or the redemption of such Bonds, Notes or obliga-
tions and any other terms or provisions applicable to the Series of Bonds, not
inconsistent with the provisions of this Resolution or the Act. All of the
foregoing may be added by supplemental resolution or resolutions (or supple-
mental ordinance or ordinances) adopted at any time and from time to time
prior to the issuance of any such Series of Bonds.
SECTION 6.03. Execution and Authentication of Bonds and Notes. The
Bonds or Notes shall be executed in the name of the Issuer by the Mayor and
the seal of the Issuer shall be imprinted, reproduced or lithographed on the
Bonds or Notes and attested to by the Clerk. The signatures of the Mayor and
the Clerk on the Bonds or Notes may be by facsimile, but one such officer
shall sign his manual signature on the Bonds or Notes unless the Issuer ap-
points an Authenticating Agent who shall be authorized and directed to authen-
ticate the Bonds or Notes. If any Series of Bonds or Notes shall bear facsim-
ile signatures of both the Mayor and Clerk, no Bond or Note of such Series
shall be valid or become obligatory for any purpose or shall be entitled to
any security or benefit hereunder unless and until a certificate of authenti-
cation, substantially in the form set forth in Section 6.18 hereof, shall have
been signed by the Authenticating Agent for that Series on behalf of the
Issuer. The authentication by the Authenticating Agent upon any Bond or Note
- 13 -
shall be conclusive evidence that the Bond or Note so authenticated has been
duly authenticated and delivered hereunder and is entitled to the security and
benefit hereof. The certificate of the Authenticating Agent on any Series of
Bonds or Notes may be executed by any individual who is an Authenticating
Agent for such Series or by any Person authorized by any corporate Authenti-
cating Agent, but it shall not be necessary that the same authorized person
sign the. certificates of authentication on all of the Bonds or Notes of a
Series. If any officer whose signature appears on the Bonds or Notes ceases
to hold office before the delivery of the Bonds or Notes, such Person's signa-
ture shall nevertheless be valid and sufficient for all purposes. In addi-
tion, any Bond or Note may bear the signature of. or may be signed by, such
persons as at the actual time of execution of such Bond or Note, shall be the
proper officers to sign such Bond or Note although at the date of such Bond or
Note or the date of delivery thereof such persons may not have been such offi-
cers.
SECTION 6.04. Bonds and Notes Not General Obligations. The Bonds
and Notes shall not be or constitute general obligations or indebtedness of
the Issuer within the meaning of the Florida Constitution, but shall be spe-
cial and limited obligations of the Issuer payable solely from and secured by
a lien upon and a pledge of the Pledged Revenues and other moneys described in
Section 6.05 hereof, in the manner and to the extent herein provided. No
Holder of any Bond or Note shall ever have the right to compel the exercise of
the ad valorem taxing power of the Issuer or taxation in any form on any real
or personal property to pay the Bonds or Notes or the Bond Service Charges or
Note Service Charges thereon, nor shall any Holder be entitled to payment of
any Bond Service Charges or Note Service Charges thereon from any funds of the
Issuer other than the Pledged Revenues. all in the manner and to the extent
herein provided. All Bonds shall be equally and ratably secured by and pay-
able from the Pledged Revenues and, subject to the priority granted to the
Bonds as herein provided, all Notes shall be equally and ratably secured by
and payable from the Pledged Revenues. provided however, that the Issuer may
cause the payment of any Series of Bonds or Notes or Bond Service Charges or
Note Service Charges thereon to be additionally secured and protected from
sources or instruments (including, but not limited to, bond insurance or a
letter of credit) not applicable to anyone or more other Series of Bonds or
Notes.
SECTION 6.05. Pledge of Pledged Revenues and Certain Other Moneys.
The Issuer hereby irrevocably (except as otherwise provided with respect to
Electric Franchise Fees) pledges and creates a first lien and security inter-
est on the Pledged Revenues, including Pledged Revenues held in the Trust Fund
and Accounts created by Section 8.01 hereof.
The aforesaid pledge shall become effective upon the issuance and delivery of
the first Series of Bonds or Notes hereunder and the contemporaneous defea-
sance of the Golf Course Notes by the establishment of the escrow account for
the payment in full of principal of and interest on the Golf Course Notes.
The payment of the Bonds and Bond Service Charges thereon shall be secured
equally and ratably by an irrevocable (except as otherwise provided with
respect to Electric Franchise Fees) lien on the Pledged Revenues, prior and
superior to all other liens or encumbrances thereon. The principal of and any
premiums on Notes issued in anticipation of the issuance of any Series of
- 14 -
.
Bonds shall be payable from the proceeds of such Series of Bonds, or another
Series of Notes, or if the Issuer shall so provide, from moneys deposited in
the Debt Service Account as herein provided; and interest on such Notes shall
be payable from moneys on deposit in the Debt Service Account as herein
provided. The Notes and Note Service Charges shall be equally and ratably
secured by an irrevocable (except as otherwise provided with respect to
Electric Franchise Fees) lien and pledge on the Pledged Revenues, subordinate
and inferior only to the lien and pledge in favor of the Bonds and Bond
Service Charges. Amounts in the Bond Payment Account or in any escrow account
and investment earnings thereon are hereby pledged for the payment of the
particular Bonds or Notes or particular Bond Service Charges or Note Service
Charges for which the same are deposited, as provided herein.
SECTION 6.06. Bonds and Notes to be in Registered Form; Exceptions.
Unless coupon bonds and notes, the interest on which is exempt from federal
income tax, may again be issued under Section 103 of the Code, or any succes-
sor to such Code section, all Bonds and Notes hereunder shall be in registered
form and shall contain substantially the same terms and conditions as set
forth, respectively, in Section 6.18 or 6.22 hereof. To the extent the Issuer
under then applicable law may issue any Series of Bonds or Notes in coupon
form, the interest on which, in the opinion of Bond Counsel, is exempt from
federal income tax, the Issuer may amend this Resolution, including the form
of the Bonds or Notes, to authorize and provide for the issuance and payment
of such coupon Bonds or Notes and for the exchange of registered Bonds or
Notes for coupon Bonds or Notes and vice versa.
SECTION 6.07. System of Registration. The Issuer shall establish a
system of registration with respect to any Series or all Series of Bonds or
Notes issued hereunder in the form of certificated registered public obliga-
tions (represented by instruments). If the Issuer elects to issue any Bonds
or Notes as uncertificated registered public obligations (not represented by
instruments) commonly known as book-entry obligations, it shall establish a
system of registration therefor. The Issuer shall appoint such registrars,
transfer agents, depositories or other agents as may be necessary to cause the
registration, registration of transfer and reissuance of the Bonds or Notes
within a commercially reasonable time according to the then current industry
standards and to cause the timely payment of Bond Service Charges and Note
Service Charges with respect to the Bonds and Notes. Any such system may be
effective for anyone or more Series of Bonds or Notes then outstanding or to
be subsequently issued, provided that if the Issuer adopts a system for the
issuance of uncertificated registered public obligations, it may permit there-
under the conversion, at the option of a Holder of any Bond or Note then out-
standing, of a certificated registered public obligation to an uncertificated
registered public obligation, and the reconversion of the same. A list of the
names and addresses of the registered owners of the Bonds and Notes shall be
maintained at all times by the Registrar and shall be made available for in-
spection to any Bondholder or Noteholder requesting same during normal busi-
ness hours of the Registrar.
SECTION 6.08.
Payment and Ownership of Bonds and Notes.
(1) Subject to the provisions of
of Section 6.12 hereof, (i) the principal
paragraph (b) of this Section, and
of and any premium on any Bond or
- 15 -
Note shall be payable when due to a Holder upon presentation and surrender of
such Bond or Note at the office of the Paying Agent designated by the Issuer,
and (ii) interest on any Bond or Note shall be paid on each Interest Payment
Date by check or draft which the Paying Agent shall cause to be mailed on that
date to the Holder in whose name the Bond or Note (or one or more Predecessor
Bonds or Notes) is registered at the close of business on the Regular Record
Date applicable to that Interest Payment Date on the Register at the address
appearing therein. If and to the extent, however, that the Issuer shall fail
to make payment or provision for payment of interest on any Bond or Note on
any Interest Payment Date, that interest shall cease to be payable to the
Person who was the Holder of that Bond or Note (or of one or more Predecessor
Bonds or Notes) as of the applicable Regular Record Date and shall be payable
to the Holder thereof (or of one or more predecessor Bonds or Notes) at the
close of business on the Special Record Date. Except as provided in paragraph
(b) of this Section, whenever moneys become available for payment of such
interest (i) the Issuer shall, pursuant to Section 12.09 (d), establish a
Special Record Date for the payment of that interest which shall be not more
than 1S nor fewer than 10 days prior to the date of the proposed payment, and
(ii) the Issuer shall cause notice of the proposed payment and of the Special
Record Date to be mailed by first class mail, postage prepaid, to each Holder
at its address as it appears on the Register not fewer than 10 days prior to
the Special Record Date, and thereafter the interest shall be payable to the
Persons who are the Holders of the Bonds or Notes (or their respective Prede-
cessor Bonds or Notes) at the close of business on the Special Record Date.
(2) In the event that a Person other than the Issuer should pay to
the Paying Agent, pursuant to an agreement with the Issuer, an amount of money
to be used to pay directly or indirectly to the Holder of any Bond or Note an
amount equal to Bond Service Charges or Note Service Charges then payable, and
such agreement contemplates that in exchange for such payment such Person will
acquire from the Holder such Holder's rights to the payment of the amount of
Bond Service Charges or Note Service Charges then due, then such Person shall
become the owner of the Bond Service Charges or Note Service Charges contem-
plated to be acquired by such payment notwithstanding any other provision
hereof. The Paying Agent shall pay any money received by it from such Person
to such Holder as if it were the payment of the Bond Service Charges or Note
Service Charges then due, and the Paying Agent or the Holder, or whichever
shall first receive such payment, shall deliver to such Person (i) in the case
of interest on any Bond or Note, an acknowledgment of such Person's ownership
of interest to be paid on the Bond or Note specifying the amount of interest
owed, the period represented by such interest and the number of the Bond or
Note on which such interest is owed, and (ii) in the case of principal of or
premium on the Bond or Note, either the Bond or Note itself assigned to such
Person or a Bond or Note in exchange for the Predecessor Bond or Note naming
such Person as the Holder. "Whenever moneys become available for the payment
of interest then overdue, the Person to whom an acknowledgement as above has
been delivered shall be treated as to the interest which is the subject of the
acknowledgment as if such Person had been the Holder of the Bond or Note on
which such interest is payable on the Special Record Date.
(3) Subject to the foregoing, each Bond or Note delivered hereunder
upon transfer thereof, or in exchange for or in replacement of any other Bond
- 16 -
or Note, shall carry the rights to interest accrued and unpaid, and to accrue
on that Bond or Note, or which were carried by that Bond or Note.
(4) Except as provided in this Section 6.08 and in the first para-
graph of Section 6.10 hereof, (i) the Holder of any Bond or Note shall be
deemed and regarded as the absolute owner thereof for all purposes hereof,
(ii) paYment of or on account of the Bond Service Charges on any Bond or Note
Service Charges or any Note shall be made only to or upon the order of that
Holder or its duly authorized attorney in the manner permitted hereby, and
(iii) neither the Issuer, the Registrar nor any Paying Agent or Authenticating
Agent shall, to the extent permitted by law, be affected by notice to the
contrary. All of those payments shall be valid and effective to satisfy and
discharge the liability upon that Bond or Note, including without limitation,
the interest thereon, to the extent of the amount or amounts so paid.
(5) At reasonable times and under reasonable regulations established
by the Registrar, the Register may be inspected and copied by the Holders of
25 percent or more in principal amount of the Bonds or Notes then outstanding,
or a designated representative thereof.
SECTION 6.09. Transfer and Exchange of Bonds or Notes. So long as
any of the Bonds or Notes remain outstanding, the Issuer will cause books for
the registration and transfer of Bonds and Notes, as provided in Section 6.07
hereof, to be maintained and kept at the designated office of the Registrar.
Unless otherwise provided in the supplemental ordinance or resolution
under which a particular Series of Bonds or Notes are issued, Bonds or Notes
may be exchanged, at the option of their Holder, for Bonds or Notes of the
same series and of any authorized denomination or denominations in an aggre-
gate principal amount equal to the unmatured and unredeemed principal amount
of, and bearing interest at the same rate and maturing on the same date or
dates as, the Bonds or Notes being exchanged. The exchange shall be made
upon presentation and surrender of the Bonds or Notes being exchanged at the
designated office of the Registrar or at the designated office of any Authen-
ticating Agent for that Series of Bonds or Notes, together with an assignment
duly executed by the Holder or its duly authorized attorney in any form which
shall be satisfactory to the Registrar or the Authenticating Agent, as the
case may be.
Any Bond or Note may be transferred upon the Register, upon presenta-
tion and surrender thereof at the designated office of the Registrar or the
designated office of any Authenticating Agent for the Series thereof, together
with an assignment duly executed by the Holder or its duly authorized attorney
in any form which shall be satisfactory to the Registrar or the Authenticating
Agent, as the case may be. Upon transfer of any Bond or Note and on request
of the Registrar or the Authenticating Agent, the Issuer shall execute in the
name of the transferee, and the Registrar or the Authenticating Agent, as the
case may be, shall authenticate and deliver, a new Bond or Bonds or Note or
Notes of the same series, of any authorized denomination or denominations in
an aggregate principal amount equal to the unmatured and unredeemed principal
amount of, and bearing interest at the same rate and maturing on the same date
or dates as, the Bonds or Notes presented and surrendered for transfer.
- 17 -
In all cases in which Bonds or Notes shall be exchanged or trans-
ferred hereunder, the Issuer shall execute, and the Registrar or any Authenti-
cating Agent, as the case may be, shall authenticate and deliver, Bonds or
Notes in accordance with the provisions hereof. The exchange or transfer
shall be made without charge; provided, that the Issuer and the Registrar or
the Authenticating Agent, as the case may be, may make a charge for every
exchange or transfer of Bonds or Notes, sufficient to reimburse them for any
tax or excise required to be paid with respect to the exchange or transfer.
The charge shall be paid before a new Bond or Note is delivered.
All Bonds or Notes issued upon any transfer or exchange of Bonds
shall be valid obligations of the Issuer, evidencing the same debt, and enti-
tled to the same benefits hereunder, as the Bonds or Notes surrendered upon
transfer or exchange. Neither the Issuer, the Registrar nor any Authenticat-
ing Agent, as the case may be, shall be required to make any exchange or
transfer of a Bond or Note during a period beginning at the opening of busi-
ness 15 days before the day of the mailing of a notice of redemption of Bonds
or Notes and ending at the close of business on the day of such mailing or to
transfer or exchange any Bonds or Notes selected for redemption, in whole or
in part, within 90 days following such mailing.
In case any Bond or Note is redeemed in part only, on or after the
redemption date and upon presentation and surrender of the Bond or Note, the
Issuer, subject to the provisions of Section 6.14 hereof, shall cause execu-
tion of, and the Registrar or any Authenticating Agent for that Series of
Bonds or Notes shall authenticate and deliver, a new Bond or Bonds or a new
Note or Notes of the same Series in authorized denominations in an aggregate
principal amount equal to the unmatured and unredeemed portion of, and bearing
interest at the same rate and maturing on the same date or dates as, the Bond
or Note redeemed in part.
The designated office of the Registrar and the Authenticating Agent
for purposes of this Section shall be established by the Issuer.
Notwithstanding the foregoing, if the Issuer issues any Series of
Bonds or Notes as uncertificated registered public obligations, it may adopt,
with respect thereto, a book entry system of registration providing for the
registration, transfer and exchange of such Bonds or Notes.
SECTION 6.10. Mutilated, Lost, Wrongfully Taken or Destroyed Bonds
or Notes. If any Bond or Note is mutilated, lost, wrongfully taken or de
stroyed, in the absence of written notice to the Issuer or the Registrar that
a lost, wrongfully taken or destroyed Bond or Note has been acquired by a bona
fide purchaser, the Issuer shall execute, and the Registrar shall authenticate
and deliver, a new Bond or Note of like date, maturity and denomination and of
the same series as the Bond or Note mutilated, lost, wrongfully taken or de-
stroyed; provided, that (i) in the case of any mutilated Bond or Note, the
mutilated Bond or Note first shall be surrendered to the Registrar, and (ii)
in the case of any lost, wrongfully taken or destroyed Bond or Note, there
first shall be furnished to the Issuer and the Registrar evidence of the loss,
wrongful taking or destruction satisfactory to the Issuer and the Registrar,
together with indemnity satisfactory to them.
- 18 -
If any lost, wrongfully taken or destroyed Bond or Note shall have
matured, instead of issuing a new Bond or Note, the Issuer may direct the
Paying Agent to pay that Bond or Note without surrender thereof upon the fur-
nishing of satisfactory evidence and indemnity as in the case of issuance of a
new Bond or Note. The Issuer and the Registrar may charge the Holder of a
mutilated, lost, wrongfully taken or destroyed Bond or Note their reasonable
fees and expenses in connection with their actions pursuant to this Section.
Every new Bond or Note issued pursuant to this Section by reason of
any Bond or Note being mutilated, lost, wrongfully taken or destroyed (i)
shall constitute, to the extent of the outstanding principal amount of the
Bond or Note lost, mutilated, taken or destroyed, an additional contractual
obligation of the Issuer, regardless of whether the mutilated, lost, wrongful-
ly taken or destroyed Bond or Note shall be enforceable at any time by anyone,
and (ii) shall be entitled to all of the benefits hereof equally and propor-
tionately with any and all other Bonds or Notes, as the case may be issued and
outstanding hereunder.
All Bonds and Notes shall be held and owned on the express condition
that the foregoing provisions of this Section are exclusive with respect to
the replacement or payment of mutilated, lost, wrongfully taken or destroyed
Bonds and Notes and, to the extent permitted by law, shall preclude any and
all other rights and remedies with respect to the replacement or payment of
negotiable instruments or other investment securities without their surrender,
notwithstanding any law or statute to the contrary now existing or enacted
hereafter.
SECTION 6.11. Safekeeping and Cancellation of Bonds and Notes. Any
Bond or Note surrendered pursuant to this Article for the purpose of payment
or retirement, or for exchange, replacement or transfer, shall be cancelled
upon presentation and surrender thereof to the Issuer, the Registrar, any
Paying Agent or Authenticating Agent. Any Bond or Note cancelled by the
Issuer, the Paying Agent or Authenticating Agent shall be transmitted promptly
to the Registrar by the Issuer, the Paying Agent or Authenticating Agent, and
the Registrar shall record the fact of such cancellation on the Register.
Certification of the surrender and cancellation shall be made to the Issuer by
the Registrar at least twice each calendar year. Unless otherwise directed by
the Issuer, cancelled Bonds and Notes shall be retained and stored by the
Registrar for a period of seven years after their cancellation. Those can-
celled Bonds and Notes shall be destroyed by the Registrar by shredding or
incineration seven years after their cancellation or at any earlier time di-
rected by the Issuer. Certificates of any destruction of cancelled Bonds and
Notes (describing the manner thereof) shall be provided by the Registrar to
the Issuer.
SECTION 6.12. Special Agreement with Holders. Notwithstanding any
provision hereof or of any Bond or Note to the contrary, the Issuer may enter
into an agreement with any Holder providing for making all payments to that
Holder of Bond Service Charges on that Bond or Note Service Charges on that
Note or any part thereof (other than any payment of the entire unpaid princi-
pal amount thereof) at a place and in a manner other than as provided herein
and in the Bond or Note, without presentation or surrender of the Bond or
Note, upon any conditions which shall be satisfactory to the Issuer; provided,
- 19 -
that payment in any event shall be made to the Person in whose name a Bond or
Note shall be registered on the Register, with respect to payment of principal
and premium, on the date such principal and premium is due, and, with respect
to the payment of interest, as of the applicable Regular Record Date or Spe-
cial Record Date, as the case may be.
The Issuer will furnish a copy of each of those agreements, certified
to be correct by the Mayor to the Registrar and the Paying Agent. Any payment
of principal, premium or interest pursuant to such an agreement shall consti-
tute payment thereof pursuant to, and for all purposes of this Resolution.
SECTION 6.13. Provisions for Redemption. Each Series of Bonds or
Notes shall be subject to redemption prior to their maturity upon the terms
and conditions and at such times, in such manner and at such redemption price
or premium as shall be established by the ordinance or resolution of the
Issuer adopted with respect to such Series of Bonds or Notes on or before the
time of delivery of those Bonds or Notes.
SECTION 6.14. Redemption of Portion of Registered Bonds and Notes.
In case part, but not all, of an outstanding fully registered Bond or Note
shall be selected for redemption, the registered owner thereof shall present
and surrender such Bond or Note to the Issuer or the designated Paying Agent
for payment of the redemption price of the portion so called for redemption,
and the Issuer shall execute and deliver to or upon the order of such regis-
tered owner, without charge therefor, for the unredeemed balance of the prin-
cipal amount of the Bond or Note so surrendered, a Bond or Bonds or Note or
Notes, as the case may be, fully registered as to principal and interest.
SECTION 6.15. Notice of Redemption. Subject to the provisions of
Section 18.02 hereof, notice of redemption shall be filed with the registrar
and paying agent and given by publication in a financial journal published and
of general circulation in the Borough of Manhattan, City of New York, New
York, not more than sixty and not less than thirty days prior to the redemp-
tion date, and by the deposit in the U.S. mails of a copy of said redemption
notice, postage prepaid, at least thirty and not more than sixty days before
the redemption date to all registered owners of the Bonds or Notes or portions
of Bonds or Notes to be redeemed at their addresses as they appear on the
Register to be maintained in accordance with provisions hereof; provided,
however, that if all Bonds or Notes to be redeemed shall be in registered
form, no newspaper publication of such redemption notice shall be required.
Failure to publish such notice or to mail any such notice to a registered
owner of a Bond or Note, or any defect therein, shall not affect the validity
of the proceedings for redemption of any Bond or Note or portion thereof with
respect to which no failure or defect occurred.
Each notice shall set forth the date fixed for redemption, the re-
demption price to be paid and, if less than all of the Bonds or Notes of any
Series then outstanding shall be called for redemption, the distinctive
numbers and letters, if any, of such Bonds or Notes to be redeemed and, in the
case of Bonds or Notes to be redeemed in part only, the portion of the princi-
pal amount thereof to be redeemed. If any Bond or Note is to be redeemed in
part only, the notice of redemption which relates to such Bond or Note shall
also state that on or after the redemption date, upon surrender of such Bond
- 20 -
or Note, new Bond or
pal amount equal to
issued.
Bonds or Note or
the unredeemed
Notes, as the case may be, in a princi-
portion of such Bond or Note will be
Any notice given as provided in this Section shall be conclusively
presumed to have been duly given, whether or not the owner of such Bond or
Note receives such notice or otherwise has actual notice of such call for
redemption,
SECTION 6.16. Effect of Notice of Redemption. Notice having been
given in the manner and under the conditions hereinabove provided, the Bonds
or Notes or portions of Bonds or Notes so called for redemption shall, on the
redemption date designated in such notice, become and be due and payable at
the redemption price provided for redemption of such Bonds or Notes or por-
tions of Bonds or Notes on such date. If, on the date so designated for re-
demption, moneys for payment of the redemption price are held in separate Bond
Payment Accounts by the Paying Agents in trust for the registered owners of
the Bonds or Notes or portions thereof to be redeemed, all as provided in this
Resolution, then interest on the Bonds or Notes or portions thereof so called
for redemption shall cease to accrue, such Bonds and portions of Bonds or
Notes and portions of Notes shall cease to be deemed outstanding and shall
cease to be entitled to any lien, benefit or security under this Resolution,
and the registered owners of such Bonds or portions of Bonds or Notes and
portions of Notes shall have no right in respect thereof except to receive
payment of the redemption price thereof and, to the extent provided in Section
6.14 of this Article, to receive Bonds or Notes, as the case may be, for any
unredeemed portions of such Bonds or Notes.
SECTION 6.17. Payment of Redeemed Bonds and Notes. Notice having
been given in the manner provided in Section 6.15 hereof, the Bonds or Notes
and portions thereof called for redemption shall become due and payable on the
redemption date, and upon presentation and surrender thereof at the place or
places specified in that notice, shall be paid at the redemption price, plus
interest accrued to the redemption date.
If moneys for the redemption of all of the Bonds or Notes and por-
tions thereof to be redeemed, together with interest accrued thereon to the
redemption date, are held by any escrow agent, any Authorized Depository or
any Paying Agent on the redemption date, so as to be available therefor on
that date and, if notice of redemption shall have been given as aforesaid,
then from and after the redemption date those Bonds or Notes and portions
thereof called for redemption shall cease to bear interest and no longer shall
be considered to be outstanding hereunder and shall cease to be entitled to
any lien, benefit or security under this Resolution, except to receive the
payment of the redemption price plus interest accrued to the redemption date
on or after the designated date of redemption from moneys deposited with or
held in the applicable Bond Payment Account by the escrow agent, Authorized
Depository or Paying Agent, as the case may be, for such redemption and, to
the extent provided in Section 6.14 of this Article, to receive Bonds or
Notes, as the case may be, for any unredeemed portions of the Bonds or Notes.
If those moneys shall not be so available on the redemption date, or that
- 21 -
notice shall not have been given as
tions thereof shall continue to bear
same rate as they would have borne had
aforesaid, those Bonds or Notes and por-
interest, until they are paid, at the
they not been called for redemption.
All moneys held by an escrow agent, any Authorized Depository or any
Paying Agent for the redemption of particular Bonds or Notes shall be held in
trust for the account of the Holders thereof and shall be paid to them, re-
spectively, upon presentation and surrender of those Bonds or Notes.
SECTION 6.18.
Form of Bonds.
(1) The text of the Series 1985 Bonds and the form of assignment for
the Series 1985 Bonds, and the certificate of validation shall be in substan-
tially the form hereinafter set forth, with such omissions, insertions and
variations (including but not limited to those variations described in Subsec-
tions (2), (3) and (4) of this Section) as may be necessary or desirable and
authorized or permitted by this Resolution or by any subsequent ordinance or
resolution adopted prior to the issuance thereof, including, without limita-
tion, such changes as may be required for the issuance of uncertificated pub-
lic obligations or coupon Bonds to the extent herein authorized and for the
execution of the Bonds by an Authenticating Agent. Bonds of any subsequent
series shall be substantially in the same form with such changes as may be
approved by the ordinance or resolution providing for the issuance thereof.
REGISTERED
NO.
REGISTERED
$
[FORM OF FACE OF SERIES 1985 BOND]
United States of America
State of Florida
CITY OF SEBASTIAN, FLORIDA
GOLF COURSE REVENUE BOND
SERIES 1985
Interest Rate:
Maturity Date:
Dated as of:
CUSIP:
The City of Sebastian, Florida (the "Issuer"), a municipality duly
created and validly existing under the laws of the State of Florida, for value
received, promises to pay to
or registered assigns, but solely from the sources and in the manner referred
to herein, the principal amount of
($
) DOLLARS
- 22 -
on the aforesaid Maturity Date, unless this Bond is called for earlier redemp-
tion, and commencing on to pay from those sources in-
terest thereon at the aforesaid Interest Rate on 1 and
1 of each year (the "Interest Payment Dates") until the
principal amount is paid or duly provided for. This Bond will bear interest
at the above stated interest rate from the most recent date to which interest
has beeri paid or duly provided for or, if no interest has been paid or duly
provided for, from Interest shall be calculated on the
basis of a year of 360 days having twelve thirty day months.
The principal of and premium, if any, on this Bond are payable upon
presentation and surrender hereof at the principal office of the Paying Agent,
presently (the
"Paying Agent"). Interest hereon is payable on each Interest Payment Date by
check or draft mailed to the person in whose name this Bond (or one or more
Predecessor Bonds) is registered (the "Holder") on the registration books for
this issue maintained by , as Registrar, at the address
appearing therein at the close of business on the 15th day of the calendar
month next preceding that Interest Payment Date (the "Regular Record Date").
Any interest which is not timely paid or duly provided for shall cease to be
payable to the Holder hereof (or of one or more Predecessor Bonds) as of the
Regular Record Date, and shall be payable to the Holder hereof (or of one or
more Predecessor Bonds) at the close of business on a Special Record Date to
be fixed by the Issuer for the payment of that overdue interest. Notice of
the Special Record Date shall be given to Holders not less than ten days prior
thereto. The principal of and interest and any premium ("Bond Service
Charges") on this Bond are payable in lawful money of the United States of
America, without deduction for the services of the Paying Agent.
This Bond and the interest hereon is payable solely from and secured
by a first lien upon and pledge of the Pledged Revenues consisting at all
times of the Gross Revenues to be received by the Issuer from operation of the
Facilities, as defined in the hereinafter described Resolution, and the Public
Service Taxes and shall initially also include Electric Franchise Fees, all in
the manner and to the extent provided in Resolution adopted by the
Issuer on , 1985 as supplemented by Resolution , adopted
by the Issuer on , (collectively the "Resolution").
Reference is hereby made to the Resolution for the provisions, among others,
relating to the terms, lien and security of the Bonds, the custody and appli-
cation of the proceeds of the Bonds, the rights and remedies of the Holders of
the Bonds, the extent of and limitations on the Issuer's rights, duties and
obligations, conditions permitting the release of the lien on the Electric
Franchise Fees, the provisions permitting the issuance under the Resolution of
Refunding Bonds, Additional Parity Bonds and subordinated Notes, and provi-
sions permitting the issuance of other bonds secured by the Public Service
Taxes and Electric Franchise Fees, to all of which provisions the owner hereof
assents by acceptance of this Bond. Copies of the Resolution are available
for inspection in the office of the City Clerk of the Issuer.
THIS BOND SHALL NOT BE DEEMED TO CONSTITUTE A DEBT OR A PLEDGE OF THE
FAITH AND CREDIT OF THE ISSUER, THE STATE OF FLORIDA OR ANY POLITICAL SUBDIVI-
SION THEREOF WITHIN THE MEANING OF ANY CONSTITUTIONAL, LEGISLATIVE OR CHARTER
PROVISION OR LIMITATION, AND IT IS EXPRESSLY AGREED BY THE REGISTERED OWNER OF
- 23 -
THIS BOND THAT SUCH REGISTERED OWNER SHALL NEVER HAVE THE RIGHT, DIRECTLY OR
INDIRECTLY, TO REQUIRE OR COMPEL THE EXERCISE OF THE AD VALOREM TAXING POWER
OF THE ISSUER OR ANY OTHER POLITICAL SUBDIVISION OF THE STATE OF FLORIDA OR
TAXATION IN ANY FORM ON ANY REAL OR PERSONAL PROPERTY FOR THE PAYMENT OF THE
PRINCIPAL OF AND INTEREST ON THIS BOND OR FOR THE PAYMENT OF ANY OTHER fu~OUNTS
PROVIDED FOR IN THE RESOLUTION.
" It is further agreed between the Issuer and the registered owner of
this Bond that this Bond and the indebtedness evideneed hereby shall not eon-
stitute a lien upon any real property, tangible personal property of or in the
Issuer, but shall eonstitute a lien only on the Pledged Revenues and other
moneys deseribed above, and all in the manner and to the extent provided in
the Resolution. Neither the members of the Governing Body of the Issuer nor
any person exeeuting the Bonds shall be liable personally on this Bond by
reason of its issuance.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS BOND SET FORTH ON
THE REVERSE SIDE. THOSE PROVISIONS SHALL HAVE THE SAME EFFECT FOR ALL PUR-
POSES AS IF SET FORTH HERE.
It is eertified and reeited that there have been performed and have
happened in regular and due form, as required by law, all aets and eonditions
neeessary to be done or performed by the Issuer or to have happened preeedent
to and in the issuing of the Bonds of this Series in order to make them legal,
valid and binding speeial obligations of the Issuer, that payment in full for
sueh Bonds has been reeeived, and that sueh Bonds do not exeeed or violate any
eonstitutional or statutory limitation.
- 24 -
Date of
Registration
and Authen-
tication':
[(FORM OF CERTI-
FICATION OF AU-
THENTICATION)
This Bond is one
of the Bonds des-
cribed in the
within-mentioned
Resolution
By ]
Authorized Signer
Registrable at:
Payable by:
- 25 -
IN WITNESS OF THE
ABOVE, the Issuer has
caused this Bond to be
executed in the name
of the Issuer in their
official capacities by
the [facsimile/manual]
signatures of the
Mayor and the City
Clerk of the Issuer
and the seal of the
Issuer to be [affixed/
imprinted] hereto, as
of the date shown
above.
City of Sebastian
By
Mayor
Attest:
City Clerk
[To be printed on the reverse side of Registered Bonds]
ADDITIONAL BOND PROVISIONS
This Bond is one of a Series of Bonds (the "Series 1985 Bonds") in
the aggregate principal amount of $ , of like date, tenor and
effect, except as to number, maturity (unless all of such Series 1985 Bonds
mature on the same date) and interest rate. The Series 1985 Bonds are autho-
rized by the Resolution which authorizes the issuance of Bonds in an aggregate
principal amount not to exceed $2,005,000 to finance the cost of a capital
project (the "Project") consisting of the acquisition, construction, equipping
and furnishing of improvements to the Issuer's municipal golf course facili-
ties (hereinafter called the "Facilities"), and to pay at maturity the
Issuer's outstanding $1,600,000 Golf Course Revenue Bond Anticipation Notes
issued to finance, in part, the Project, pursuant to the authority of and in
full compliance with the Constitution and laws of the State of Florida, in-
cluding particularly the Resolution, Article VIII, Section 2, Constitution of
the State of Florida, and Chapter 166, Florida Statutes. The Resolution also
authorizes the issuance of Refunding Bonds and Additional Parity Bonds upon
the terms set forth in the Resolution, and authorizes the issuance of Notes in
anticipation of the issuance of Additional Parity Bonds. By the Resolution
the Issuer specified the terms of the Series 1985 Bonds.
In the Resolution, the Issuer has covenanted and agreed with the
Holders of Bonds and Notes that it will, to the extent permitted by law, fix,
establish, revise from time to time whenever necessary, maintain and collect
such fees, rates, rentals and other charges for the use of the product, ser-
vices and facilities of the Facilities which will always provide Gross Reve-
nues in each Bond Year sufficient to pay, in accordance with the Resolution,
(i) all Costs of Operation and Maintenance of the Facilities for such year,
(ii) all Reserve Fund and Renewal and Replacement Fund deposits required by
the Resolution for such year, (iii) all payments of principal and interest on
any Notes or other junior lien obligations issued under the Resolution and
(iv) 150% of the Bond Service Requirement for such year, and that such rates,
fees, rentals and other charges shall not be reduced so as to be insufficient
to provide Gross Revenues for such purposes. The Issuer has entered into
certain further covenants with the Holders of the Bonds of this Series for the
terms of which reference is made to the Resolution. All Bonds issued pursuant
to the Resolution shall be equally and ratably secured by the Pledged Revenues
and other moneys specified therein as therein provided.
The Series 1985 Bonds are [not] subject to redemption prior to their
maturity [Insert redemption provisions, if any].
[Notice of such redemption shall be given in the manner required by
the Resolution.]
The registration of this Bond may be transferred upon the registra-
tion books upon delivery to the principal office of the Bond Registrar desig-
nated by the Issuer, accompanied by a written instrument or instruments of
transfer in form and with guaranty of signature satisfactory to the Registrar,
duly executed by the registered Holder of this Bond or by his attorney-in-fact
- 26 -
or legal representative, containing written instructions as to the details of
transfer of this Bond, along with the social security number or federal em-
ployer identification number of such transferee. In all cases of a transfer
of a Bond, the Registrar shall at the earliest practical time in accordance
with the provisions of the Resolution enter the transfer of ownership in the
registration books and (unless uncertificated registration shall be requested
and the -Issuer has a registration system that will accommodate uncertificated
registration) shall deliver in the name of the new transferee or transferees a
new fully registered Bond or Bonds of the same series maturity and interest
rate and of authorized denomination or denominations, for the same aggregate
principal amount and payable from the same source of funds. The Issuer and
the Registrar may charge the owner of such Bond for the registration of every
such transfer of a Bond sufficient to reimburse them for any tax, fee or any
other governmental charge required (other than by the Issuer) to be paid with
respect to the registration of such transfer, and may require that such
amounts be paid before any such new Bond shall be delivered.
If the date for payment of the principal of, premium, if any, or
interest on this Bond shall be a Saturday, Sunday, legal holiday or a day on
which banking institutions in the city where the principal office of the Pay-
ing Agent is located are authorized by law or executive order to close, then
the date for such payment shall be the next succeeding day which is not a
Saturday, Sunday, legal holiday or a day on which such banking institutions
are authorized to close, and payment on such day shall have the same force and
effect as if made on the nominal date of payment.
The Resolution contains provisions under which the Holders of Bonds
and Notes may appoint a trustee to enforce the provisions thereof if an Event
of Default shall occur and also contains provisions for meetings of the Hold-
ers. The Holder of each Bond has only those remedies provided in the Resolu-
tion.
The Resolution permits certain amendments thereto not prejudicial to
the Holders to be made without the consent of or notice to the Holders, and
other amendments thereto (with certain exceptions, as provided in the Resolu-
tion) to be made with the consent of the Holders of not less than 66 2/3% in
aggregate principal amount of the affected Bonds then outstanding and 66 2/3%
in aggregate principal amount of affected Notes then outstanding.
This Bond shall not be. entitled to any security or benefit under the
Resolution or be valid or become obligatory for any purpose until the certifi-
cate of authentication hereon shall have been signed.
- 27 -
VALIDATION CERTIFICATE
This is one of a Series
by judgment of the Circuit Court
for Indian River County, Florida,
of Bonds which were validated and confirmed
of the Nineteenth Judicial Circuit, in and
rendered on 19
Mayor, City of Sebastian, Florida
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned
(the "Transferor"), hereby sells, assigns and transfers unto
, (the "Transferee"),
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF TRANSFEREE
the within Bond and all
and appoints
as attorney to register the transfer of the within Bond
registration and registration of transfer thereof, with
tution in the premises.
rights thereunder, and hereby irrevocably constitutes
,
on the books kept for
full power of substi-
Date:
Signature Guaranteed:
NOTICE: Signature(s) must be guar-
anteed 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 Bond will be
issued in the name of the Transfer-
ee, unless the signature(s) to this
assignment correspond(s) with the
name as it appears upon the face of
the within Bond in every particu-
lar, without alteration or enlarge-
ment or any change whatever and the
Social Security or Federal Employer
Identification Number of the Trans-
feree is supplied.
- 28 -
(2) The form of the Bonds of any Series may be modified as appropri-
ate by supplemental ordinance or resolution of the Issuer pertaining to such
Series of Bonds, to provide for a variable interest rate calculated initially
and from time to time by reference to an index or indices, provided that in no
event shall the interest rate calculated in accordance with such formula ex-
ceed the maximum rate permitted by law.
(3) The form of the Ronds of any Series may be modified as appropri-
ate by supplemental ordinance or resolution of the Issuer pertaining to such
Series of Bonds, (i) to provide that the Holder of any such Bond may demand
from the Issuer payment of principal and interest on his Bond within a speci-
fied number of calendar days after delivering notice to a designated agent for
the Issuer and providing a copy of the notice and tendering the Bond to such
agent, (ii) to provide additional security for such Series of Bonds, or (iii)
to provide for other variable terms not prohibited hereby.
(4) The form of Bonds may provide that the Holder of any such Bond
may demand payment of principal and interest from the Issuer within a stated
period after delivering notice to the Issuer or to a designated agent for the
Issuer and providing a copy of the notice with the tender of the Bond to such
agent. The Issuer or the designated agent for the Issuer may, in accordance
with the terms of a remarketing or replacement agreement, provide for the
resale or redelivery of the Bonds on behalf of the Issuer at a price provided
for in the agreement. If the Bonds shall not be resold or redelivered within
a stated period, the Issuer or the agent for the Issuer may be authorized to
draw upon a previously executed credit agreement or letter of credit between
the Issuer and one or more banks or other financial or lending institutions
permitting the Issuer to borrow interest and principal for payment upon a
particular Series of Bonds to which such credit agreement or letter of credit
shall pertain. The particular form or forms of such demand provisions, the
period or periods for payment of principal and interest after delivery of
notice, the appointment of the agent for the Issuer, the terms and provisions
of the remarketing or replacement agreement, and the terms and provisions of
the credit agreement or letter of credit shall be as designated by a supple-
mental ordinance or resolution of the Issuer pertaining to each Series of
Bonds to which such terms and provisions are applicable, prior to the sale
thereof.
SECTION 6.19. Temporary Bonds or Notes. All Bonds or Notes issued
and to be issued under this Resolution may be initially issued in temporary
form exchangeable for definitive Bonds or Notes when ready for delivery. The
temporary Bonds or Notes shall be of such denomination as may be determined by
the Issuer by subsequent resolution of its Governing Body adopted at or prior
to the sale of the Bonds or Notes, and may contain such references to any of
the provisions of this Resolution as may be appropriate. Every temporary Bond
or Note shall be executed by the Issuer upon the same conditions and in sub-
stantially the same manner as the definitive Bonds or Notes. If the Issuer
issues temporary Bonds or Notes it will execute and furnish definitive Bonds
or Notes, as the case may be, without delay and thereupon the temporary Bonds
or Notes may be surrendered for cancellation in exchange therefor at the offi-
ce of the Registrar, and the Issuer shall deliver in exchange for such tempo-
rary Bonds or Notes an equal aggregate principal amount of definitive Bonds or
- 29 -
Notes, as the case may be, of authorized denominations. Until so exchanged,
the temporary Bonds or Notes shall be entitled to the same benefits under this
Resolution as definitive Bonds or Notes, as the case may be, issued and de-
livered hereunder.
SECTION 6.20 Negotiability. The Bonds and Notes shall be and
shall have all the qualities and incidents of negotiable instruments under the
laws of the State of Florida. Each successive Holder, in accepting any of the
Bonds or Notes, shall be conclusively deemed to have agreed that the Bonds or
Notes shall be and shall have all of the qualities and incidents of negotiable
instruments under the laws of the State of Florida.
SECTION 6.21. Description of Notes. The Notes authorized hereunder
may be issued in one or more Series that may be delivered from time to time in
anticipation of the issuance of one or more Series of Bonds hereunder. The
Notes shall be known as "City of Sebastian, Florida, Golf Course Revenue Bond
Anticipation Notes." The Notes shall have a final maturity of not more than
five (5) years following their date of delivery, as shall be determined by the
subsequent ordinance or resolution providing for the issuance and sale thereof
and shall have such other terms as shall be determined by such ordinance or
resolution. Except as to the maximum maturity and source of payment, the
Notes may contain any terms the Bonds may contain under Section 6.02 hereof.
The Notes shall comply with the provisions of Section 215.431, Florida
Statutes and shall bear interest at a rate not to exceed the maximum rate of
interest allowed by law. Notes may be issued to refund other Notes to the
extent permitted by law.
SECTION 6.22.
Form of Notes.
(1) The text of the Notes and the form of assignment for such Notes,
and the certificate of validation shall be in substantially the following
form, with such omissions, insertions and variations (including but not limit-
ed to those variations described in Subsections (2), (3) and (4) of this Sec-
tion) as may be necessary or desirable and authorized or permitted by any
subsequent ordinance or resolution adopted prior to or in connection with the
issuance thereof, including, without limitation, such changes as may be re-
quired for the issuance of uncertificated public obligations or coupon Notes
to the extent herein authorized and for the execution of the Notes by an Au-
thenticating Agent:
- 30 -
REGISTERED
NO.
REGISTERED
$
[FORM OF FACE OF NOTE]
United States of America
State of Florida
CITY OF SEBASTIAN, FLORIDA
GOLF COURSE REVENUE BOND ANTICIPATION NOTE
SERIES
Interest Rate:
Maturity Date:
Dated as of:
CUSIP:
The City of Sebastian, Florida (the "Issuer"), a municipality duly
created and validly existing under the laws of the State of Florida, for value
received, promises to pay to
or registered assigns, but solely from the sources and in the manner referred
to herein, the principal amount of
($
) DOLLARS
on the aforesaid Maturity Date, unless this Note is called for earlier redemp-
tion, and commencing on to pay from those sources in-
terest thereon at the aforesaid Interest Rate on 1 and
1 of each year (the "Interest Payment Dates") until the
principal amount is paid or duly provided for. This Note will bear interest
at the above stated interest rate from the most recent date to which interest
has been paid or duly provided for or, if no interest has been paid or duly
provided for, from Interest shall be calculated on the
basis of a year of 360 days having twelve thirty day months.
The principal of and premium, if any, on this Note are payable upon
presentation and surrender hereof at the principal office of the Paying Agent,
presently , , (the
"Paying Agent"). Interest hereon is payable on each Interest Payment Date by
check or draft mailed to the person in whose name this Note (or one or more
Predecessor Notes) is registered (the "Holder") on the registration books for
this issue maintained by , as Registrar, at the address
appearing therein at the close of business on the 15th day of the calendar
month next preceding that Interest Payment Date (the "Regular Record Date").
Any interest which is not timely paid or duly provided for shall cease to be
payable to the Holder hereof (or of one or more Predecessor Notes) as of the
Regular Record Date, and shall be payable to the Holder hereof (or of one or
more Predecessor Notes) at the close of business on a Special Record Date to
be fixed by the Issuer for the payment of that overdue interest. Notice of
the Special Record Date shall be given to Holders not less than ten days prior
thereto. The principal of and interest and any premium ("Note Service
Charges") on this Note are payable in lawful money of the United States of
America, without deduction for the services of the Paying Agent.
- 31 -
This Note is issued in anticipation of the issuance of a series of
the Issuer's Golf Course Revenue Bonds and the principal hereof is payable
from the proceeds of sale of such Series of Bonds or another Series of Notes.
The payment of principal is additionally secured by and the interest hereon is
payable solely from and secured by a lien upon and pledge of the Pledged Reve-
nues consisting at all times of the Gross Revenues to be received by the
Issuer from operation of the Facilities. as defined in the Resolution, and the
Public Service Taxes and shall initially also include Electric Franchise Fees,
all in the manner and to the extent provided in Resolution adopted
by the issuer on , 1985, as supplemented by Resolution
, adopted by the issuer on , (the "Resolution").
The right of the Holder hereof to receive payment from such pledged revenues
is junior and subordinate to the rights of Holders of Bonds ("Bonds") issued
under the Resolution. Reference is hereby made to the Resolution for the
provisions, among others, relating to the terms, lien and security of the
Notes, the custody and application of the proceeds of the Notes, the rights
and remedies of the Holders of the Notes, the extent of and limitations on the
Issuer's rights, duties and obligations, conditions permitting the release of
the lien on the Electric Franchise Fees, the provisions permitting the issu-
ance under the Resolution of Bond and Note indebtedness, to all of which pro-
visions the owner hereof assents to by acceptance of this Note and provisions
permitting the issuance of other bonds secured by the Public Service Taxes and
Electric Franchise Fees. Copies of the Resolution are available for inspec-
tion in the office of the City Clerk of the Issuer.
THIS NOTE SHALL NOT BE DEEMED TO CONSTITUTE A DEBT OR A PLEDGE OF THE
FAITH AND CREDIT OF THE ISSUER, THE STATE OF FLORIDA OR ANY POLITICAL SUBDIVI-
SION THEREOF WITHIN THE MEANING OF ANY CONSTITUTIONAL, LEGISLATIVE OR CHARTER
PROVISION OR LIMITATION, AND IT IS EXPRESSLY AGREED BY THE REGISTERED OWNER OF
THIS NOTE THAT SUCH REGISTERED OWNER SHALL NEVER HAVE THE RIGHT, DIRECTLY OR
INDIRECTLY, TO REQUIRE OR COMPEL THE EXERCISE OF THE AD VALOREM TAXING POWER
OF THE ISSUER OR ANY OTHER POLITICAL SUBDIVISION OF THE STATE OF FLORIDA OR
TAXATION IN ANY FORM ON ANY REAL OR PERSONAL PROPERTY FOR THE PAYMENT OF THE
PRINCIPAL OF AND INTEREST ON THIS NOTE OR FOR THE PAYMENT OF ANY OTHER AMOUNTS
PROVIDED FOR IN THE RESOLUTION.
It is further agreed between the Issuer and the registered owner of
this Note that this Note and the indebtedness evidenced hereby shall not con-
stitute a lien upon any real property, tangible personal property of or in the
Issuer, but shall constitute a lien only on the Pledged Revenues and other
moneys described above, and all in the manner and to the extent provided in
the Resolution. Neither the members of the Governing Body of the Issuer nor
any person executing the Notes shall be liable personally on this Note by
reason of its issuance.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH ON
THE REVERSE SIDE. THOSE PROVISIONS SHALL HAVE THE SAME EFFECT FOR ALL PUR-
POSES AS IF SET FORTH HERE.
It is certified and recited
happened in regular and due form, as
necessary to be done or performed by
to and in the issuing of the Notes of
that there have been performed and have
required by law, all acts and conditions
the Issuer or to have happened precedent
this Series in order to make them legal,
- 32 -
valid and binding special obligations of the Issuer, that payment in full for
such Notes has been received, and that such Notes do not exceed or violate any
constitutional or statutory limitation.
Da te of
Registration
and Authen-
tication:
[(FORM OF CERTI-
FICATION OF AU-
THENTICATION)
This Note is one
of the Notes des-
cribed in the
within-mentioned
Resolution
By ]
Authorized Signer
Registrable at:
Payable by:
- 33 -
IN WITNESS OF THE ABOVE,
the Issuer has caused
this Note to be executed
in the name of the Issuer
in their official capaci-
ties by the [facsimile/
manual] signatures of the
Mayor and the City Clerk
of the Issuer and the
seal of the Issuer to be
[affixed/imprinted] here-
to, as of the date shown
above.
City of Sebastian
By
Mayor
Attest:
City Clerk
[To be printed on the reverse side of Registered Notes]
ADDITIONAL NOTE PROVISIONS
Notes") in
date, tenor and
Notes are a
the issuance of
to
This Note is one of a Series of Notes (the "Series
the aggregate principal amount of $ , of like
effect, except as to number and interest rate. The Series
Series of Notes authorized by the Resolution which authorizes
Notes in an aggregate principal amount not to exceed $
pursuant to the authority of and in full compliance with the Constitution and
laws of the State of Florida, including particularly the Resolution, Article
VIII, Section 2, Constitution of the State of Florida, and Chapter 166,
Florida Statutes. The Resolution also authorizes the issuance of Refunding
Bonds, Additional Parity Bonds and additional bond anticipation notes (the
"Notes") upon the terms set forth in the Resolution, and authorizes the issu-
ance of Notes in anticipation of the issuance of Additional Parity Bonds. By
the Resolution the Issuer specified the terms of the Series Notes.
In the Resolution, the Issuer has covenanted and agreed with the
Holders of Bonds and Notes that it will, to the extent permitted by law, fix,
establish, revise from time to time whenever necessary, maintain and collect
such fees, rates, rentals and other charges for the use of the product, ser-
vices and facilities of the Facilities which will always provide Gross Reve-
nues in each Bond Year sufficient to pay, in accordance with the Resolution,
(i) all Costs of Operation and Maintenance of the Facilities in such year,
(ii) all Reserve Fund and Renewal and Replacement Fund deposits required by
the Resolution for such year, (iii) all payments of principal and interest on
any Notes or other junior lien obligations issued under the Resolution and
(iv) 150% of the Bond Service Requirement for such year, and that such rates,
fees, rentals and other charges shall not be reduced so as to be insufficient
to provide Gross Revenues for such purposes. The Issuer has entered into
certain further covenants with the Holders of the Notes of this Series for the
terms of which reference is made to the Resolution. All Notes issued pursuant
to the Resolution shall be equally and ratably secured by the Pledged Revenues
and other moneys specified therein subject to the prior claim of Holders of
the Bonds as therein provided.
The Series _____ Notes are [not] subject to redemption prior to their
maturity [Insert Redemption provisions, if anyl.
[Notice of such redemption shall be given in the manner required by
the Resolution.]
The registration of this Note may be transferred upon the registra-
tion books upon delivery to the principal office of the Bond Registrar desig-
nated by the Issuer, accompanied by a written instrument or instruments of
transfer in form and with guaranty of signature satisfactory to the Registrar,
duly executed by the registered Holder of this Note or by his attorney-in-fact
or legal representative, containing written instructions as to the details of
- 34 -
transfer of this Note, along with the social security number or federal em-
ployer identification number of such transferee. In all cases of a transfer
of a Note, the Registrar shall at the earliest practical time in accordance
with the provisions of the Resolution enter the transfer of ownership in the
registration books and (unless uncertificated registration shall be requested
and the Issuer has a registration system that will accommodate uncertificated
registration) shall deliver in the name of the new transferee or transferees a
new fully registered Note or Notes of the same series maturity and interest
rate and of authorized denomination or denominations, for the same aggregate
principal amount and payable from the same source of funds. The Issuer and
the Registrar may charge the owner of such Note for the registration of every
such transfer of a Note sufficient to reimburse them for any tax, fee or any
other governmental charge required (other than by the Issuer) to be paid with
respect to the registration of such transfer, and may require that such
amounts be paid before any such new Note shall be delivered.
If the date for payment of the principal of, premium, if any, or
interest on this Note shall be a Saturday, Sunday, legal holiday or a day on
which banking institutions in the city where the principal office of the Pay-
ing Agent is located are authorized by law or executive order to close, then
the date for such payment shall be the next succeeding day which is not a
Saturday, Sunday, legal holiday or a day on which such banking institutions
are authorized to close, and payment on such day shall have the same force and
effect as if made on the nominal date of payment.
The Resolution contains
and Notes may appoint a trustee
of Default shall occur and also
ers. The Holder of each Note
nance and Resolution.
provisions under which the Holders of
to enforce the provisions thereof if an
contains provisions for meetings of the
has only those remedies provided in the
Bonds
Event
Hold-
Ordi-
The Resolution permits certain amendments thereto not prejudicial to
the Holders to be made without the consent of or notice to the Holders, and
other amendments thereto (with certain exceptions, as provided in the Resolu-
tion) to be made with the consent of the Holders of not less than a 66 2/3%
aggregate principal amount of the affected Bonds then outstanding and 66 2/3%
in aggregate principal amount of the affected Notes then outstanding.
This Note shall not be entitled to any security or benefit under the
Resolution or be valid or become obligatory for any purpose until the certifi-
cate of authentication hereon shall have been signed.
- 3S -
[VALIDATION CERTIFICATE
This Note is one of a Series of Notes which were validated and con-
firmed by judgment of the Circuit Court of the Nineteenth Judicial Circuit, in
and for Indian River County, Florida, rendered on 19
Mayor, City of Sebastian, Florida]
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned
(the "Transferor"), hereby sells, assigns and transfers unto
(the "Transferee").
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF TRANSFEREE
rights thereunder, and hereby irrevocably constitutes
the within Note and all
and appoints
as attorney to register the transfer of the within Note
registration and registration of transfer thereof, with
tution in the premises.
,
on the books kept for
full power of substi-
Date:
Signature Guaranteed:
NOTICE: Signature(s) must be guar-
anteed by a member firm of the New
York Stock Exchange or a commercial
bank or a trust company.
NOTICE: No transfer will be regis-
tered and no new Note will be
issued in the name of the Transfer-
ee, unless the signature(s) to this
assignment correspond(s) with the
name as it appears upon the face of
the within Note in every particu-
lar, without alteration or enlarge-
ment or any change whatever and the
Social Security or Federal Employer
Identification Number of the Trans-
feree is supplied.
- 36 -
(2) The form of the Notes of any Series may be modified as appropri-
ate by supplemental ordinance or resolution of the Issuer pertaining to such
Series of Notes, to provide for a variable interest rate calculated initially
and from time to time by reference to an index or indices, provided that in no
event shall the interest rate calculated in accordance with such formula ex-
ceed the maximum rate permitted by law.
(3) The form of the Notes of any Series may be modified as appropri-
ate by supplemental ordinance or resolution of the Issuer pertaining to such
Series of Notes, (i) to provide that the Holder of any such Note may demand
from the Issuer payment of principal and interest on his Note within a speci-
fied number of calendar days after delivering notice to a designated agent for
the Issuer and providing a copy of the notice and tendering the Note to such
agent, (ii) to provide additional security for such Series of Notes, or (iii)
to provide for other variable terms not prohibited hereby.
(4) The form of Notes may provide that the Holder of any such Note
may demand payment of principal and interest from the Issuer within a stated
period after delivering notice to the Issuer or to a designated agent for the
Issuer and providing a copy of the notice with the tender of the Note to such
agent. The Issuer or the designated agent for the Issuer may, in accordance
with the terms of a remarketing or replacement agreement, provide for the
resale or redelivery of the Notes on behalf of the Issuer at a price provided
for in the agreement. If the Notes shall not be resold or redelivered within
a stated period, the Issuer or the agent for the Issuer may be authorized to
draw upon a previously executed credit agreement or letter of credit between
the Issuer and one or more banks or other financial or lending institutions
permitting the Issuer to borrow interest and principal for payment upon a
particular Series of Notes to which such credit agreement or letter of credit
shall pertain. The particular form or forms of such demand provisions, the
period or periods for payment of principal and interest after delivery of
notice, the appointment of the agent for the Issuer, the terms and provisions
of the remarketing or replacement agreement, and the terms and provisions of
the credit agreement or letter of credit shall be as designated by a supple-
mental ordinance or resolution of the Issuer pertaining to each Series of
Notes to which such terms and provisions are applicable, prior to the sale
thereof.
ARTICLE VII
Application of Proceeds of Bonds and Notes
SECTION 7.01. Use of Proceeds. The proceeds received by the Issuer
from the sale of each Series of Bonds or Notes, including accrued interest and
premium, if any, shall be used only to pay costs permitted by Section 4.02
hereof and shall be applied by the Issuer simultaneously with the delivery of
such Series of Bonds or Notes in accordance with the provisions of a
supplemental ordinance or resolution of the Issuer in conformity with this
Resolution to be adopted at or before the delivery of such Series of Bonds or
Notes.
- 37 -
SECTION 7.02. Holders Not Affected by Use of Proceeds. The Holders
of the Bonds or Notes issued hereunder shall have no responsibility for the
application or use of the proceeds of the Bonds or Notes, and the application
or use of the proceeds of the Bonds and Notes by the Issuer shall in no way
affect the rights of such Holders. The Issuer shall be irrevocably obligated
to pay the Bond Service Charges on the Bonds and Note Service Charges on the
Notes and to make all reserve and other payments provided for herein from the
Pledged Revenues notwithstanding any failure of the Issuer to use and apply
such proceeds in the manner provided herein.
ARTICLE VIII
Funds and Accounts; Disposition of
Bond Proceeds and Revenues
SECTION 8.01. Creation of Funds and Accounts. There is hereby
created and established by the Issuer a special fund to be called the "Golf
Course Revenue Bond Trust Fund" (the "Trust Fund") and the following accounts
therein to be known as: the "Cons truction Account," the "General Revenue Ac-
count," the "Debt Service Account," the "Operation and Maintenance Account,"
the "Operation and Maintenance Reserve Subaccount," the "Reserve Account," the
"Renewal and Replacement Account," the "Bond Payment Account," and the "Desig-
nated Revenue Account" with a "Public Service Taxes Subaccount" and "Electric
Franchise Fees Subaccount" therein. The Trust Fund and all accounts therein
shall constitute trust funds for the purposes herein provided. The Reserve
Account shall be held by an Authorized Depository as trustee, the Bond Payment
Account shall be held by one or more Paying Agents or escrow agents and all
other accounts shall be held by the Director of Finance (or an Authorized
Depository designated by the Director of Finance), in each case who shall act
as trustee of such funds in such account for the purposes hereof. The Trust
Fund and accounts therein shall be subject to a first lien and charge in favor
of the Holders of the Bonds, and a second lien in favor of the Holders of the
Notes and shall at all times be kept and used only as herein provided. The
Issuer shall designate an Authorized Depository which shall, pursuant to a
written agreement executed and effective as of the delivery of the first
Series of Bonds issued hereunder, agree to hold all funds deposited to the
credit of the Reserve Account hereunder in trust for the sole and exclusive
benefit of the Holders of the Bonds in accordance with the provisions of this
Resolution.
SECTION 8.02 Disposition of Proceeds. Simultaneously with the
delivery of each Series of Bonds or Notes the Issuer shall deposit the accrued
interest, if any, received by it in the Debt Service Account and shall deposit
the balance thereof in one or more accounts created hereunder as shall be
required by the supplemental ordinance or resolution providing for the sale of
that Series. All such proceeds shall be so deposited in one or more of such
accounts.
The proceeds of the Series 1985 Bonds shall be applied in the follow-
ing manner and priority:
(a) Accrued Interest derived from the sale of the Series 1985 Bonds
and received from the Original Purchaser shall be deposited into
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the Debt Service Account created by this Resolution and used to
pay interest on the Series 1985 Bonds on the first Interest
Payment Date following the issuance of the Series 1985 Bonds.
(b) Bond proceeds in an amount sufficient to defease (at the time of
such deposit) and to provide for the payment of the Golf Course
Notes and the accrued interest thereon at their stated maturity
of March I, 1986, shall be deposited into the escrow fund estab-
lished for the Golf Course Notes. Moneys on deposit therein
shall be fully invested in Federal Securities Obligations matur-
ing at the date the moneys are needed to retire said Notes.
(c) Bond proceeds in an amount sufficient, together with moneys
transferred from the Reserve Account previously established for
the Golf Course Notes, to equal the Maximum Bond Service Re-
quirement on the Series 1985 Bonds shall be deposited in the
Reserve Account created by this Resolution.
(d) The balance of Bond proceeds shall be deposited in the Construc-
tion Fund created by this Resolution, and shall be used to pay
for Costs of the Project, including all costs of issuance of the
Series 1985 Bonds.
SECTION 8.03 The Construction Account. There shall be paid into
the Construction Account that portion of the proceeds from the sale of each
Series of Bonds or Notes as shall be designated by the supplemental ordinance
or resolution of the Issuer authorizing the sale of such Series. The Con-
struction Account shall be accounted for separately from all other funds,
accounts and sub-accounts of the Issuer, and the moneys on deposit therein
shall be withdrawn, used and applied by the Issuer solely for the purposes
described in Section 4.02. Such costs shall be paid upon written requisition
certified by the Director of Finance and manager of the Facilities of the
Issuer. All such funds shall be and constitute trust funds for such purposes,
and shall be delivered to and held by the Director of Finance (or his desig-
nated Authorized Depository) who shall act as trustee of such funds for the
purposes of this Resolution.
Any moneys on deposit in the Construction Account that, in the opin-
ion of the Issuer, are not immediately necessary for expenditure, as here-
inabove provided, shall be held and may be invested in the manner provided by
law, in Investment Obligations pursuant to Section 9.02 hereof. All income
derived from investments of funds in the Construction Account shall be deposi-
ted in the Construction Account as provided in Section 9.02 hereof.
Any liquidated damages or settlement payments received by the Issuer
as a result of the breach by any contractor, subcontractor or supplier working
or supplying goods for the Projects, of any representation, warranty or per-
formance guaranty, and all insurance and condemnation proceeds received with
respect to damages to or the taking of the Projects during construction shall
be deposited into the Construction Account.
Upon completion of each Project, or upon the abandonment thereof
pursuant to the provisions of Section 4.01 hereof, any amounts held to pay the
- 39 -
costs thereof then remaining in
the Issuer for the payment of
and acquisition thereof, shall
or more of the following ways:
the Construction Account and not reserved by
any remaining part of the cost of construction
at the election of the Issuer, be utilized in
(i)
(ii)
(iii)
to pay the costs of any
Notes have been issued to
Construction Fund for the
cient; or
other Project for which any Bonds or
the extent amounts then held in the
payment of those costs may be insuffi-
to pay the cost of any capital improvement of the Facilities,
provided that such use does not violate the provisions of Arti-
cle VII, Section 10 of the Florida Constitution and so long as
such use will not, in the opinion of Bond Counsel, cause inter-
est on the Bonds or Notes or on any Series thereof to become
subject to federal income tax as a result of such use; or
to redeem Bonds or Notes or to purchase Bonds or Notes for can-
cellation at a price not greater than par provided that the
Issuer has received an opinion from Bond Counsel that the inter-
est on the Bonds or Notes or any Series thereof will not become
subject to federal income tax as a result of such use. Any
moneys to be used for the redemption or purchase of Bonds or
Notes shall be withdrawn from the Construction Account and de-
posited in the Debt Service Account.
SECTION 8.04. Disposition of Gross Revenues. Commencing on the day
following the delivery of the first Series of Bonds or Notes issued hereunder,
except as otherwise provided herein, all Gross Revenues shall be deposited by
the Issuer into the General Revenue Account immediately upon receipt.
SECTION 8.05. The General Revenue Account. Funds in the General
Revenue Account shall be disposed of on or before the 20th day of each month,
commencing with the month immediately following the delivery of the first
Bonds or Notes issued hereunder, only in the following manner and order of
priority:
(a) First the Issuer shall make the following deposits into the Debt
Service Account, which deposits shall be held solely for the
payment of Bond Service Charges on the Bonds:
(i) with respect to all Bonds on which interest is payable
monthly, an amount equal to the interest coming due thereon
on the next Interest Payment Date applicable thereto;
(ii)
with respect to all Bonds
quarterly, one-third (1/3)
thereon on the next Interest
to;
on which interest is payable
of the interest coming due
Payment Date applicable there-
(iii)
with respect to all Bonds on
semi-annually, one-sixth (1/6)
which interest is payable
of the interest coming due
- 40 -
thereon on the next Interest Payment Date applicable there-
to;
(iv) with respect to all Bonds on which interest is payable
annually, one-twelfth (1/12) of the interest coming due
thereon on the next Interest Payment Date applicable there-
to;
(v) with respect to all Bonds providing for the payment of
interest which is to accrue over a period longer than
twelve months, the amount required to be deposited in the
Debt Service Account on such date for the payment of such
interest by the ordinance or resolution providing for the
sale thereof;
(vi) with respect to all Serial Bonds maturing annually during
the current Bond Year, one-twelfth (1/12) of all principal
maturing thereon on the next maturity date thereof;
(vii)
with respect to all Serial
during the current Bond Year,
cipal maturing thereon on the
Bonds maturing semi-annually
one-sixth (1/6) of all prin-
next maturity date thereof;
(ix) with respect to all Serial Bonds maturing monthly, during
the current Bond Year, all principal maturing thereon in
the next maturity date thereof;
(x) with respect to Term Bonds maturing or required to be re-
deemed during the current Bond Year, one-twelfth (1/12) of
the Amortization Installment applicable thereto; and
(xi) with respect to any Series of zero coupon Bonds, the
amount, if any, required to be deposited in the Debt Ser-
vice Account on such date for the payment thereof by the
ordinance or resolution providing for the sale thereof.
In the case of Bonds having a variable interest rate, monthly
deposits relating to interest coming due shall be based on the
Issuer's reasonable estimate as to the amount of interest which
will be payable on the next Interest Payment Date and any short-
ages thereby created shall be deposited in the Debt Service
Account on the business day immediately preceding the next In-
terest Payment Date, and any excess so created shall be carried
forward as a credit balance in the Debt Service Account. The
foregoing deposits shall be made until there are sufficient
funds then on deposit equal to the sum of the interest, princi-
pal and redemption payments due on the Bonds on the next inter-
est, principal and redemption dates in such Bond Year. Deposits
shall be increased or decreased from time to time to the extent
required to pay principal and interest coming due, after making
allowance for any accrued and capitalized interest on any of the
Bonds deposited in the Debt Service Account or after making
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allo.wance fo.r any investment gains o.r lo.sses o.f the Debt Service
Acco.unt.
(b) Next, the Issuer shall depo.sit to. the Operatio.n and Maintenance
Acco.unt o.nce a mo.nth, the amo.unt sufficient to. cause the amo.unts
o.n depo.sit therein to. equal the next mo.nth's budgeted Operatio.n
and Maintenance Expenses fo.r the Facilities; amo.unts o.n depo.sit
therein (including investment inco.me thereo.n) shall be used o.nly
to. pay Operatio.n and Maintenance Expenses.
(c) Next, the Issuer shall depo.sit into. the Reserve Acco.unt an
amo.unt equal to. o.ne-twelfth (1/12) o.f the difference between the
amo.unt then o.n depo.sit in the Reserve Acco.unt and the Maximum
Bo.nd Service Requirement. No. depo.sit shall be required to. be
made to. the Reserve Acco.unt so. lo.ng as there shall remain o.n
depo.sit therein an amo.unt equal to. the Maximum Bo.nd Service
Requirement.
Cd) Next, the Issuer shall depo.sit to. the Operatio.n and Maintenance
Reserve Subacco.unt, an amo.unt sufficient to. cause the amo.unt o.n
depo.sit therein to. equal the fo.llo.wing mo.nth's budgeted Opera-
tio.n and Maintenance Expenses fo.r the Facilities; amo.unts o.n
depo.sit therein (including any investment inco.me thereo.n) shall
be used o.nly fo.r the purpo.se o.f supplementing the Operatio.n and
Maintenance Expense Acco.unt when mo.neys o.n depo.sit therein are
insufficient to. meet current Operatio.n and Maintenance Expenses.
Ho.wever, funds in this acco.unt may also. be used to. prevent a
default o.f principal and interest o.n the Bo.nds when mo.neys in
the Reserve Acco.unt are insufficient fo.r such purpo.ses.
(e) Next, the Issuer shall make the fo.llo.wing depo.sits into. the Debt
Service Acco.unt, which depo.sits shall be held so.lely fo.r the
payment o.f No.te Service Charges o.n the No.tes (except in the
event o.f default, such mo.neys may be used to. pay Bo.nd Service
Charges o.n Bo.nds):
(i) with respect to. all No.tes o.n which interest is payable
mo.nthly, an amo.unt equal to. the interest co.ming due
thereo.n o.n the next Interest Payment Date applicable
thereto.;
(ii) with respect to. all No.tes o.n which interest is payable
quarterly, o.ne-third (1/3) o.f the interest co.ming due
thereo.n o.n the next Interest Payment Date applicable
thereto.;
(11i)
with respect to. all No.tes o.n which interest is payable
semi-annually, o.ne-sixth (1/6) o.f the interest co.ming
due thereo.n o.n the next Interest Payment Date applica-
ble thereto.;
(iv)
with respect to. all No.tes o.n which interest is payable
annually, o.ne-twelfth (1/12) o.f the interest co.ming
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due thereon on the next Interest Payment Date applica-
ble thereto;
(v) with respect to all Notes providing for the payment of
interest which is to accrue over a period longer than
twelve months, the amount required to be deposited in
the Debt Service Account on such date for the payment
of such interest by the ordinance or resolution pro-
viding for the sale thereof;
(f) Next, the Issuer shall make any deposits in the Debt Service
Account with respect to the principal of any Notes which are
required by the supplemental ordinance or resolution providing
for the issuance thereof, or such other amounts as may be re-
quired to prevent a default in principal of any Notes due within
30 days.
(g) Next, to the payment of fees and expenses described in Section
15.02 hereof.
(h) Next, the Issuer shall deposit to the Renewal and Replacement
Fund, an amount equal to one-twelfth (1/12) of five percent (5%)
of the previous year's Gross Revenues until there shall be on
deposit therein an amount recommended by the Golf Course Consul-
tant and approved by resolution of the City Council. Moneys on
deposit in the Renewal and Replacement Fund (together with in-
vestment income thereon) shall be used only for purposes of
periodic replacement of worn or depreciated capital items and
for the purposes of making capital improvements to the Facili-
ties. However, moneys on deposit in the Renewal and Replacement
Fund shall, to the extent other available moneys in the Trust
Fund are insufficient therefor, be used to prevent a default of
principal of and interest on the Bonds and Notes.
(i) The remaining moneys may be withdrawn by the Issuer and used for
any lawful purpose, and the lien created hereunder thereon shall
be released. However, the payments outlined above and the
priorities therefor shall be on a cumulative basis and no moneys
may be used for any other lawful purposes until all of the re-
quired payments shall be current and shall be up to the amounts
required to be on deposit in the respective funds and accounts.
In addition to the foregoing monthly payments the Issuer shall from
time to time make such additional deposits in the Debt Service Account as
shall be necessary to make timely payment of Bonds and Notes which shall be-
come due and payable on account of redemption (other than redemptions provided
for by Amortization Installments) or acceleration.
- 43 -
SECTION 8.06.
The Debt Service Account.
(1) Moneys on deposit in the
solely for the payment of principal of,
ums required with respect to the Bonds
and Notes as herein provided.
Debt Service
interest on and
and Notes or for
Account shall be used
any redemption premi-
the purchase of Bonds
(2) Prior to the maturity date or redemption date of each Bond or
Note and prior to the date any installment of interest is due on each Bond or
Note, the Issuer shall transfer from the Debt Service Account to the Bond
Payment Account held by the Paying Agents for such Bonds or Notes moneys suf-
ficient to pay (and theretofore deposited in the Debt Service Account for such
purpose) all principal of, premium, if any, and interest then due and payable
with respect to such Bonds or Notes. Such payment shall be made at the time
specified in Section 8.08 hereof.
(3)
in excess of
coupon Bonds
Moneys on deposit in the Debt Service Account in any Bond Year
any amount required to be retained for the payment of any zero
may be used by the Issuer as follows:
(a)
amounts deposited therein for the payment of particular Bonds
maturing during such Bond Year or on the first day of the next
succeeding Bond Year shall be used for those purposes or may be
used to purchase for cancellation those particular Bonds at a
price not to exceed par plus accrued interest;
(b)
Amortization Installments for the payment of Term Bonds required
to be redeemed during the Bond Year or on the first day of the
next succeeding Bond Year may be used to purchase for cancella-
tion at a price not to exceed the principal amount thereof, plus
accrued interest, or to redeem Term Bonds, in an aggregate
amount required to be redeemed, as aforesaid. Such Amortization
Installments may not be used to purchase Term Bonds if the Amor-
tization Installments are needed to redeem Term Bonds which have
been called for redemption. To the extent Term Bonds are pur-
chased and cancelled as aforesaid. the principal amount of such
Term Bonds so purchased shall be credited against the principal
amount of Term Bonds required to be redeemed from such Amortiza-
tion Installments.
(c)
Any amounts on deposit in the Debt Service Account in excess of
any amount required to be retained for the payment of zero
coupon bonds and in excess of the amounts described in para-
graphs (a) and (b) of this subsection may be used to purchase
Bonds or Notes or to redeem Bonds or Notes which are then sub-
ject to call for redemption. If Term Bonds are purchased or
redeemed pursuant to this paragraph (c), the principal amount of
such Term Bonds so purchased or redeemed may, at the election of
the Issuer, be credited against the Issuer's obligation to re-
deem Term Bonds from Amortization Installments in anyone or
more subsequent Bond Years as the Issuer may determine and as
may be reflected in the Issuer's permanent accounting records.
Such election shall be included in the annual audited reports of
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Issuer referred to in Section
Installments relating to such
reflect such credit.
10.04 below, and the Amortization
Term Bonds shall be reduced to
SECTION 8.07. The Reserve Account. Funds on deposit in the Reserve
Account shall be held by an Authorized Depositary, as trustee, and may be used
only for the purpose of making payments to Paying Agents for the payment of
Bond Service Charges to the extent that amounts in the Debt Service Account
held for the payment of Bond Service Charges shall be insufficient for such
purpose except as herein provided. All income from the investment of moneys
on deposit in the Reserve Account shall be deposited in the General Revenue
Account immediately upon receipt. If funds on deposit in the Reserve Account
exceed, in the aggregate, the Maximum Bond Service Requirement for the Bonds,
such excess funds shall be deposited into one or more accounts in the Trust
Fund or in an escrow account for the payment of Bonds. If on account of the
payment or redemption of Bonds the Maximum Debt Service Requirement will be
reduced resulting in the amounts on deposit in the Reserve Account exceeding
the Maximum Annual Debt Service Requirement, such excess may be used by the
Issuer to payor redeem such Bonds.
SECTION 8.08. The Bond Payment Account. The Issuer shall transfer
from the Debt Service Account, as provided in Section 8.06 hereof (or from the
Reserve Account to the extent permitted by Section 8.07 hereof) to the Bond
Payment Account held by the Paying Agents, an amount sufficient to pay, when
due, the principal of, interest on and redemption premium, if any, with re-
spect to the Bonds and Notes. Such money shall be deposited with the Paying
Agents not later than the close of business of such Paying Agent on the busi-
ness day of the Paying Agent immediately preceding the date on which such Bond
Service Charges on the Bonds or Note Service Charges on the Notes become due
and payable. Amounts deposited for the payment of any Bond Service Charges on
specified Bonds or for the payment of Note Service Charges on specified Notes
shall be held by the Paying Agent for such specified Bonds and specified
Notes, in trust, for the payment thereof until such Bond Service Charges or
Note Service Charges, as the case may be, are paid in full or until otherwise
applied as herein provided.
SECTION 8.09. The Designated Revenues Account. Commencing on the
day following the delivery of the first Series of Bonds or Notes issued here-
under, except as otherwise provided herein, all Designated Revenues shall be
deposited by the Issuer into the Public Services Taxes Subaccount or the Elec-
tric Franchise Fees Subaccount, as appropriate, immediately upon receipt.
If, on or before the 20th day of each month commencing with the month
immediately following the delivery of the first Bonds issued hereunder, moneys
held for the credit of the Debt Service Account, the Operation and Maintenance
Account, the Reserve Account, the Operation and Maintenance Reserve Subac-
count, and the Renewal and Replacement Fund shall be insufficient for the
purposes of such accounts, the Issuer shall appropriate the necessary amounts
of such Designated Revenues to the credit of such accounts so as to cure any
such deficiency. Designated Revenues shall be applied in the same manner and
priority as funds in the General Revenue Account. Budgeting and deposit re-
quirements of Designated Revenues shall be cumulative to the extent that such
Designated Revenues received by the City in any Fiscal Year are not sufficient
- 4S -
to make deposits to accounts in the Trust Fund. Such cumulative deposits
shall be required until all prior deficiencies have been fully restored.
SECTION 8.10. Accounts Held by Issuer. All accounts created here-
by, other than the Bond Payment Account and Reserve Account, shall be held by
the Issuer. The cash required to be accounted for in the accounts held by the
Issuer, may be deposited in a single bank account, and funds allocated to
those accounts may be invested in a common investment pool, provided that
adequate accounting records are maintained to reflect and control the re-
stricted application of the cash and investments on deposit therein for the
various purposes of such accounts as herein provided. The designation and
establishment of the various accounts to be held by the Issuer in and by this
Resolution shall not be construed to require the establishment of any com-
pletely independent, self-balancing accounts as such term is commonly defined
and used in governmental accounting, but rather is intended solely to consti-
tute an earmarking of certain moneys and investments of the Issuer for certain
purposes and to establish certain priorities for the application of such
moneys and investments as herein provided.
ARTICLE IX
Depositories of Moneys, Security for
Deposits and Investment of Funds
SECTION 9.01. Deposits Constitute Trust Funds.
property which at any time may be held in the Trust Fund
under the provisions hereof shall be held in trust
accordance with the provisions hereof, and shall not
attachment by any creditor of the Issuer.
All moneys or other
and Accounts therein
and applied only in
be subject to lien or
All moneys on deposit which at any time may be held in the Trust Fund
and Accounts therein pursuant hereto shall be continuously secured, for the
benefit of the Issuer and the Holders of Bonds and Notes, either (a) by lodg-
ing with an Authorized Depository, as custodian, with collateral security
consisting of Federal Securities having a market value (exclusive of accrued
interest) not less than the amount of such deposit, or (b) in such other man-
ner as permitted hereunder and as may then be required or permitted by appli-
cable state or federal laws and regulations regarding the security for, or
granting a preference in the case of, the deposit of trust funds, including,
without limitation, the provisions of Chapter 280, Florida Statutes, as from
time to time amended.
All moneys deposited with each Authorized Depository shall be credit-
ed to the particular Account to which such moneys belong.
SECTION 9.02. Investment of Moneys. Subject to the limitations
hereinafter set forth, amounts held in the Trust Fund and accounts may be
invested and reinvested by the Issuer only in Investment Obligations of the
type described in clauses (i) through (iv) of the definition of that term.
Moneys on deposit in the Bond Payment Account for the payment of Bond Service
Charges which have become due and payable may be invested only in Federal
Securities payable in immediately available funds at not less than par on
- 46 -
demand. Moneys on deposit in the Bond Payment Account or in any escrow ac-
count for the payment of Bonds or Notes which have not become due and payable
but which are no longer deemed outstanding may be invested only in Federal
Securities as herein provided. Moneys held for the credit of all other ac-
counts created hereby shall be invested and reinvested by the Issuer in In-
vestment Obligations. Such investments or reinvestments shall mature not
later than the respective dates, as estimated by the Issuer, that the moneys
held for the credit of said accounts will be needed for the purposes of such
accounts. Moneys on deposit in the Reserve Account shall be invested by the
Authorized Depositary holding the same, at the direction of the Issuer, in In-
vestment Obligations maturing not later than the last maturity on the Bonds.
Moneys on deposit in the Renewal and Replacement Fund shall be invested in
Investment Obligations maturing not later than five years from the date of
such investment.
Obligations so purchased as an investment
count shall be deemed at all times to be a part of
all times, for the purposes of this Resolution,
September 30 of each year at the cost thereof,
market value, whichever is less.
of moneys in any such Ac-
such Account, and shall at
be valued annually as of
at the time of purchase or
Except as otherwise provided herein, all income and profits derived
from the investment of moneys in the Construction Account shall be retained in
such account and used for the purposes specified for such Account. The income
and profits derived from the investment of moneys in the General Revenue Ac-
count, the Debt Service Account and the Reserve Account shall be deposited
upon receipt into the General Revenue Account.
Any moneys held by any Paying Agent or escrow agent in accordance
with the provisions of Section [4.02 may be invested only in noncallable Fed-
eral Securities having maturity dates, or having redemption dates which, at
the option of the Holder of those obligations, shall be not later than the
date or dates at which moneys will be required for the purposes described
above. All investment income derived by any Paying Agent or escrow agent from
moneys held for the payment of Bond Service Charges or Note Service Charges
which have not yet become due and payable on Bonds or Notes which are no long-
er deemed to be outstanding, as in the case of amounts held and invested for
the payment of Bond Service Charges on Bonds or Note Service Charges on Notes
which have been advance refunded, shall be held by such Paying Agent or escrow
agent to the extent necessary for the payment when due of such Bond Service
Charges or Note Service Charges, as the case may be. To the extent that any
income or interest earned by, or increment to, the investments held under this
Section is determined from time to time by the Paying Agents or escrow agent
to be in excess of the amount required to be held by the Paying Agents or
escrow agent for the purposes of Section [4.02, that excess income, interest
or increment shall be transferred to the General Revenue Account.
All such investments shall be made in compliance with Section 9.03
below.
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SECTION 9.03.
Covenant as to Use of Proceeds and Revenues.
(a) The Issuer covenants with the Holders of Bonds and Notes that it
shall not use the proceeds of any Series of Bonds or Notes to
finance any municipal capital improvements which will be used,
in whole or in part, in the trade or business of any Person
other than the Issuer, if the result of such use would cause the
interest income on such Series of Bonds or Notes to be subject
to federal income tax or if such use would result in a violation
of Article VII, Section 10 of the Florida Constitution.
(b) The Issuer covenants with the Holders of the Bonds and Notes
that neither the Issuer nor any party under its control or di-
rection will make any use of the proceeds of the Bonds and Notes
(or amounts deemed to be proceeds) at any time during the re-
spective terms thereof which, if that use had been reasonably
expected on the date such Bonds or Notes, as the case may be,
were issued. would have caused the Bonds or Notes to be "arbi-
trage bonds" within the meaning of Section 103(c) of the Code or
would otherwise cause the interest on the Bonds or Notes, or any
of them, to become taxable to the Holder or Holders thereof
under federal law. The Issuer understands that this covenant
imposes an obligation on the Issuer throughout the term each
Series of Bonds or Notes is outstanding to comply with the re-
quirements of Section 103(c) of the Code. At the time any
Series is delivered to the Original Purchasers, the Mayor, the
Clerk or the Director of Finance (each being an officer of the
Issuer charged with the responsibility of issuing the Bonds or
Notes) shall execute and deliver, on behalf of the Issuer, the
certificate required by the Federal Income Tax Regulations pro-
mulgated under the provisions of Section 103(c) of the Code.
ARTICLE X
Financial Matters
SECTION 10.01. Budget and Report. Before the first day of each
Fiscal Year the Governing Body shall prepare. approve and adopt in the manner
prescribed by law, a detailed budget of its projected revenues and current
Operation and Maintenance Expenses for the Facilities for such Fiscal Year.
On or within thirty days after the first day of each Fiscal Year the Director
of Finance of the Issuer shall prepare, or cause to be prepared, a report,
based on such budget and other records of the Issuer that shall show:
(a) The amount of money and investments held in each of the accounts
created hereunder as of the first day of such Fiscal Year;
(b) The amount of Pledged Revenues the Issuer expects to receive
during such Fiscal Year;
(c) The amount of such Pledged Revenues which will be required to be
deposited in each such account during such Fiscal Year, the
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amounts expected to be withdrawn from each such account during
such Fiscal Year and the purpose for which such withdrawal is to
be made and the balances estimated to be on deposit in each such
account on the last day of such Fiscal Year.
Such report shall also state whether the amount estimated to be on
deposit the last day of such Fiscal Year will be sufficient to pay Bond Ser-
vice Charges on the Bonds and Note Service Charges on the Notes falling due on
the first day of the following Fiscal Year. Said report shall also contain
such additional information relating to the Pledged Revenues. the accounts and
the Bonds as shall be requested by any bond rating service from which the City
has obtained a rating for any of the Bonds and shall contain such other data
as may be necessary to calculate any coverage requirements hereof. A copy of
the report shall be available for inspection at the offices of the Issuer, and
mailed to any bond rating service or Bondholder, pursuant to State statute,
requesting the same.
Should the City from time to time be required to amend such annual
budget, then the amended budget shall serve as the annual budget for purposes
of this section. Likewise with respect to the initial budget, any such amend-
ment shall be furnished to any bondholder who may request in writing to be
furnished copies thereof. If, for any reason whatsoever, the City shall not
have actually adopted such budget prior to the commencement of such fiscal
year, then the prior year's budget shall serve as the current budget until the
City adopts a new annual budget. The City shall covenant that in no event
shall it expend more money for capital expenditures or for Operation and Main-
tenance Expenses than shall be provided in the annual budget unless such ex-
penditures are of an emergency nature.
SECTION 10.02. Rate Covenant and Covenant Respecting Designated
Revenues.
(1) The City shall be required to establish, fix and maintain such
rates and charges for the use of the Facilities as shall always provide Gross
Revenues in each Fiscal Year at least equal to 150% of the Bond Service Re-
quirement coming due in such year and 100% of the Operation and Maintenance
Expense, Reserve Account deposit requirements (if any), Renewal and Replace-
ment Account deposits, and payments on any Notes or other junior lien obliga-
tions issued hereunder, and all other payments required by this Resolution.
(2) The City shall levy and collect the Public Service Taxes and
impose and collect the Electric Franchise Fees then included in "Designated
Revenues" up to the maximum amounts allowed by law and the applicable
Franchise Agreement(s), as may be necessary to prevent a default in the pay-
ment of principal of and interest on the Bonds and Notes. The City hereby
covenants not to take any action which will adversely impair its ability to
collect the Designated Revenues.
SECTION 10.03. Books and Records. The Issuer shall keep separately
identifiable financial books, records, accounts and data concerning the re-
ceipt and disbursement of Pledged Revenues and any Bondholder shall have the
right to inspect the same during the Issuer's regular business hours.
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SECTION 10.04. Reports and Annual Audits.
(1) The Issuer shall require that an annual audit of its accounts
and records be completed within six (6) months after the end of each Fiscal
Year by an independent certified public accountant of recognized standing.
Such audit shall be conducted in accordance with generally accepted auditing
standards as applied to governments and shall include a certification by the
auditors stating that no default on the part of the Issuer of any covenant
herein has been disclosed by reason of such audit or, alternatively, specify-
ing in reasonable detail the nature of such default or failure to comply.
Each audit report shall set forth in reasonable detail the collections of
Gross Revenues and a listing of the Operation and Maintenance Expenses and
capital expenses. The balance sheet relating to the Facilities shall set
forth in reasonable detail an allocation of the assets in terms of current
assets, restricted assets. property. plant and equipment. and a similar deno-
tation of the liabilities relating to the Facilities.
(2) The annual financial report shall be available for inspection at
the offices of the Issuer and shall be promptly furnished upon request to the
managing underwriter of each Series of Bonds or Notes and to any Bondholder,
pursuant to State statute. or to any bond rating service from which the Issuer
has obtained a rating with respect to any of the Bonds or Notes.
SECTION 10.05. Insurance. The City shall covenant that it will at
all times carry insurance with a responsible insurance company or companies
authorized and qualified under the laws of the State of Florida to assume the
risk thereof covering the properties of the Facilities as are customarily
insured and against loss or damage from such causes by companies engaged in a
similar enterprise. Proceeds received from any insurance settlement shall be
applied toward the restoration of the Facilities unless the City, in consulta-
tion with the Golf Course Consultant or such other recognized consultant as
shall be employee by the City. shall determine that restoration thereof shall
no longer be profitable or necessary to the operation of the Facilities.
Moneys received from the settlement of insurance claims shall be. until
disbursement thereof, deposited to the Renewal and Replacement Fund and there
shall be a lien in favor of the bondholders against such insurance proceeds
until expended in the manner provided for above. The categories of such
insurance to be carried shall include fire, windstorm, and casualty and
liability insurance and such other types as are normally carried by similar
private companies engaged in a similar business in the State of Florida.
Notwithstanding the foregoing, the City may participate in a fiscally sound
and prudent self-insurance program with regard to such risks as shall be
consistent with the recommendations of a qualified and nationally recognized
insurance consultant.
SECTION 10.06. No Free Service. The City shall not offer the Facil-
ities or parts thereof to users without receiving the full amount normally
charged to all categories of users of the Facilities of the same class. Like-
wise, the City shall not avail itself of the Facilities for itself or its
employees (other than Facilities personnel acting within the scope of their
employment) without charging for the use thereof in the same manner as would
be charged to all other types of users of the Facilities. The City also shall
covenant not to charge for the use of the Facilities on an arbitrary or dis-
criminatory basis and shall maintain rates and charges for the use of the
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Facilities equally for all
the foregoing shall not be
Facilities.
users of
applied
the
to
same class. Provided, however, that
limit promotion and marketing of the
SECTION 10.07. No Sale or Mortgage of Facilities. The City shall
not sell, lease, encumber or otherwise dispose of the Facilities so long as
any portion of the Bonds shall remain outstanding and unpaid or which will
cause the City to be unable to comply with all of the terms and covenants of
the Resolution and hinder the ability to maintain the financial integrity of
the Facilities. The foregoing notwithstanding, however, the City may sell or
otherwise dispose of parts of the Facilities which, in the opinion of the Golf
Course Consultant or other Consultant and the City shall be no longer neces-
sary or useful to the operation of the Facilities and which will not impair in
any manner whatsoever the ability of the City to operate the Facilities and
collect the Gross Revenues in the amounts necessary to comply with all the
terms and covenants of this Resolution.
SECTION 10.08. Golf Course Consultant. The City shall retain a Golf
Course Consultant of suitable experience and reputation, which consultant
shall also be a member of one or more recognized professional organizations in
that field, for purposes of assisting the City in various consulting roles and
in preparation of informational reports as hereinabove described. Such con-
sultant shall also be required to make a report to the City at least tri-an-
nually wherein said consultant shall discuss the adequacy of present and pro-
posed rates and charges for the use of the Facilities, the adequacy of day-to-
day operations and suggested changes, and any required capital expenditures
which may be required to maintain the Facilities in a condition so that they
may be operated in a safe, economical and optimum manner.
ARTICLE XI
Conditions to the Issuance of Each
Series of Obligations
SECTION 11.01. Issuance of Obligations. The Issuer will not issue
any obligations payable from the Pledged Revenues or Designated Revenues
pledged hereunder, or 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 any Bonds or Notes issued pursuant to this
Resolution, upon the Pledged Revenues or Designated Revenues pledged hereun-
der, except under the conditions and in the manner provided herein. Any obli-
gations issued by the Issuer other. than in accordance with this Article XI and
payable from the Pledged Revenues or Designated Revenues pledged hereunder
shall contain an express statement that such obligations are junior and subor-
dinate in all respects to the Bonds and Notes (whether theretofore issued or
thereafter to be issued) as to lien on, and source of and security for payment
from the Pledged Revenues or Designated Revenues.
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Bonds.
SECTION 11.02. Issuance of Additional Parity Bonds and Additional
(a) No Series of Additional Parity Bonds or Additional Bonds having
a parity lien on Pledged Revenues or any part thereof may be
delivered under this Resolution unless the Issuer shall have
first complied with the requirements of this Section.
(b) The Issuer shall be permitted to issue Additional Parity Bonds
(solely for the purpose of financing projects for the Facili-
ties) having a lien on all Pledged Revenues on a parity with the
Series 1985 Bonds if the following conditions are met:
(1) The Issuer shall have obtained a certificate from the Ac-
countant stating that the books and records relating to the
Facilities have been audited by him for the last Fiscal
Year and for the period for which the following earnings
test shall he applied and certifying that the following
test has heen met:
(i) The amount of Net Revenues (as may be adjusted as
hereinafter provided) for any twelve consecutive
months out of the eighteen consecutive months immedi-
ately preceding the date of issuance of such Addition-
al Parity Bonds, or alternatively for the Fiscal Year
immediately preceding the date of issuance of such
Additional Parity Bonds are not less than 125% of the
Maximum Bond Service Requirement on the outstanding
Bonds and the Additional Parity Bonds with respect to
which such earnings test is applied.
(ii) If necessary, the Net Revenues may be adjusted by the
Golf Course Consultant to include any additional Net
Revenues that would have been derived from the follow-
ing sources:
(A) To reflect for such earnings test period any
changes made in the rates, fees, and charges for
the Facilities as though such change had been in
effect for the entire 12 month period;
(B) To reflect any change in the Net Revenues caused
by any new projects then constituting a part of
the Facilities having been placed in use and
operation subsequent to the date of commencement
of such period and prior to the date of such
Accountant's statement as though such Projects
had been in use for the entire period of adjust-
ment;
(C) To include the estimated annual Net Revenues to
be derived in the first Fiscal Year of the opera-
tion thereof from the operation of projects which
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are to become a part of the Facilities and which
projects are to be financed from the proceeds of
such Additional Parity Bonds; and
(D) To include the estimated annual Net Revenues that
would be derived during the first full Fiscal
Year of operation from any additions to the Fa-
cilities which are under construction at the time
compliance with such earnings test is calculated.
Such adjustments shall be optional if they serve to increase the
amount of Net Revenues available to pay debt service but shall
be mandatory to the extent they reduce the expected amount of
Net Revenues available for debt service. Projected additional
investment income from additional capitalization of the Reserve
Accounts, or other accounts in the Trust Fund shall not be a
part of any such adjustment or adjusted Net Revenues for pur-
poses of this earnings test. Designated Revenues shall not be
taken into account for purposes of this paragraph (b).
(c) The City shall also be permitted to issue bonds and notes pay-
able from and secured by (in whole or in part) the Designated
Revenues ("Additional Bonds"), and having an equal lien with the
Bonds on the Designated Revenues (but shall have no lien on any
other Pledged Revenues) either for purposes relating to the
Facilities or for other lawful purpose projects, provided that
the annual collections of such Designated Revenues for the Fis-
cal Year immediately preceding the date of issuance of such
bonds or notes shall be at least equal to one hundred fifty
percent (150%) of the maximum future annual principal and inter-
est requirements on all outstanding Bonds, any bonds thereafter
issued under this paragraph (c), and the Additional Bonds pay-
able from such Designated Revenues. Such bonds or notes shall
be issued under proceedings separate from the Resolution, as it
may from time to time be supplemented and amended, and such
bonds and notes are not "llonds" or "Notes" as defined herein.
In the event any such bonds or notes are issued while any llonds
or Notes are outstanding, the Designated Revenues shall be ap-
plied as follows:
(i) First, ratably to the payment of first principal and then
interest due on all such bonds and any Bonds outstanding
hereunder (after first utilizing all other amounts pledged,
respectively, to the payment of such bonds and llonds issued
hereunder) and
(ii)
Second, ratably to the
interest on all such
(after first utilizing
tively, to the payment
under.
payment of first principal and then
notes and Notes issued hereunder
all other amounts pledged, respec-
of such notes and Notes issued here-
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Any ordinance or resolution authorizing the issuance of such
bonds or notes shall contain provisions compatible herewith.
For the sole purpose of the provisions set forth in the defini-
tion of "Designated Revenues" pertaining to the release of the
lien on Electric Franchise Fees, the bonds and notes shall be
deemed Bonds and Notes.
(d) In order to issue debt under paragraph (b) or (c) above, the
City must also be in compliance with all of the terms and cove-
nants of the Resolution authorizing the Bonds and shall not be
delinquent in making any of the payments required under this
Resolution.
Any other bonds issued by the City payable from the Gross Reve-
nues of the Facilities and/or the Designated Revenues not meet-
ing all of the terms and conditions set forth above shall be
junior and subordinate in all respects to the Bonds and any
Additional Parity Bonds then outstanding.
SECTION 11.03. Issuance of Refunding Bonds.
(a) In addition to the foregoing, the Issuer may issue at any time
and from time to time Refunding Bonds for the purpose of refund-
ing anyone or more Series of Bonds, or any maturity of Bonds
within a Series, without the necessity of complying with the
requirements contained Section 11.02, provided that prior to the
issuance of such Bonds there shall be filed with the Governing
Body of the Issuer a certificate of the Director of Finance to
the effect that (i) the net proceeds from such refunding Bonds
will be sufficient to cause the lien created by this Resolution
with respect to the Bonds to be refunded or to be advance re-
funded to be defeased pursuant to Section 14.02 hereof and (ii)
the aggregate Bond Service Charges with respect to such
refunding shall be equal to or less than the aggregate Bond
Service Charges with respect to the outstanding Bonds to be
refunded. In addition, prior to the issuance of such refunding
Bonds, there shall be filed with the Governing Body of the
Issuer, an opinion of Bond Counsel to the effect that (i) the
proceeds from the sale of such refunding Bonds have been irrevo-
cably set aside in the Bond Payment Account held by a Paying
Agent or escrow agent for the payment of the Bonds to be
refunded in the manner described in Section 14.02 hereof and
(ii) the issuance of such refunding Bonds and the use of the
proceeds thereof as described above will not have the effect of
causing the interest on any Bond then outstanding under this
Resolution (including the Bonds to be refunded) to become
subject to federal income tax.
(b) The Director of Finance of the Issuer shall certify that the
Issuer is not in default in the performance of any of the cove-
nants and obligations assumed by it hereunder, and that all
payments herein required to have been made into the Trust Fund
and the Accounts therein, as provided herein, have been made in
full to the extent required.
- S4 -
(c) The City Attorney of the Issuer shall have delivered his opinion
to the Governing Body to the effect that the issuance of such
Bonds has been duly authorized and that all conditions precedent
to the delivery of such Bonds have been fulfilled.
(d) Each ordinance, resolution or enabling instrument authorizing
the issuance and sale of such Bonds will recite that all of the
covenants herein contained will be fully applicable to such
Bonds as if originally issued hereunder.
(e) Bond Counsel shall have delivered to the Governing Body its
unqualified opinion that (i) the Bonds are the legal and valid
obligations of the Issuer and (ii) interest thereon is exempt
from federal income tax.
Bonds issued pursuant to the terms and conditions of this Resolution
shall be deemed on a parity with all other Bonds issued hereunder and all of
the covenants and other provisions of this Resolution shall be for the equal
benefit, protection and security of all of the Holders of Bonds authorized and
issued pursuant to this Resolution and outstanding from time to time. Bonds
shall be issued only for the purpose of paying costs described in Section 4.02
hereof.
A single series of Bonds may be issued to accomplish the purposes of
Section 11.02(b) and 11.03, and if so issued, the bond counsel approving such
Series of Bonds shall apportion the principal amount and Bond Service Charges
between the "new money" portion and the "refunding portion" in a manner con-
sistent with the Federal Income Tax Regulations under Section 103(c) of the
Code and the tests set forth in Section Il.02(b) shall be applicable only to
the "new money" portion and the tests of this Section 11.03 shall be applica-
ble only to the "refunding portion."
Any bonds or notes issued under Section ll.02(c) hereof may be re-
funded without meeting the Additional Bonds requirements set forth in Il.02(c)
(to the extent permitted by the ordinance or resolution authorizing the bonds
or notes to be refunded), provided that the maximum annual debt service on
such refunding bonds or notes does not cause the maximum annual debt service
on all Bonds and Notes and bonds and notes issued under Section Il.02(c) to
increase; if the maximum annual debt service will increase, then the Addition-
al Bonds requirements set forth in 11.02(c) shall be applicable.
SECTION 11.04. Issuance
under this Resolution unless the
requirements of this Section.
of Notes. No
Issuer shall
Series of Notes may be issued
have first complied with the
(a) The City shall have obtained a certificate from the Accountant
certifying that:
(i) During the period the Notes are to be outstanding the
Pledged Revenues available to pay interest thereon will be
sufficient to pay such interest; and
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(ii) It is reasonably expected that, at the time the Notes
mature and are to be paid with proceeds of Bonds, the
Pledged Revenues will be sufficient to meet the applicable
coverage requirements contained in Section 11.02 hereof.
(b) The Director of Finance shall certify that the Issuer is not in
default in the performance of any of the covenants and obliga-
tions assumed by it hereunder and that all payments herein re-
quired to have been made into the Trust Fund and the Accounts
therein, or herein provided, have been made in full to the ex-
tent required.
(c) The City Attorney of the Issuer shall have delivered his opinion
to the Governing Body to the effect that the issuance of such
Notes had been duly authorized and that all conditions precedent
to the delivery of such Notes have been fulfilled.
(d) Each ordinance, resolution or enabling instrument authorizing
the issuance and sale of such Notes shall recite that all of the
covenants herein contained will be fully applicable to such
Notes as if originally issued hereunder.
(e) Bond Counsel shall have delivered to the Governing Body its
unqualified opinion that (i) the Notes are legal and valid obli-
gations of the Issuer, and (ii) interest thereon is exempt from
federal income tax.
Notes issued pursuant to the terms and conditions of this Resolution
shall be deemed on a parity with all other Notes issued hereunder, but shall
be junior, inferior and subordinate to all Bonds issued hereunder and to all
bonds and notes issued as permitted by Section 11.02(c) hereof. Notes issued
as permitted under Section 11.02(c) hereof shall be on a parity with respect
to the Designated Revenues with Notes issued under this Section. The Holders
of Notes shall have no claim on or interest in any moneys or investments on
deposit in the Reserve Account and their claim on and interest in the Pledged
Revenues shall be junior, inferior and subordinate to the prior claim and
interest of the Holders of the Bonds. Except as provided herein all covenants
and other provisions of this Resolution shall be for the equal benefit, pro-
tection and security of all Holders of Bonds and Notes authorized and issued
pursuant to this Resolution and outstanding from time to time. Notes shall be
issued only for the purpose of paying costs described in Section 4.02 hereof.
ARTICLE XII
Events of Default; Remedies
SECTION 12.01. Events of Default.
hereby declared an "event of default."
Each of the following events is
(a) Payment of principal of or premium, if any, on any Bond or Note
shall not be made when the same shall become due and payable,
either at maturity (whether by acceleration or otherwise) or on
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required payment dates by proceedings for redemption or other-
wise; or
(b) Payment of any installment of interest on any Bond or Note shall
not be made when the same shall become due and payable; or
(c) The Issuer shall for any reason be rendered incapable of ful-
filling its obligations hereunder to the extent that the payment
of or security for the Bonds or Notes would be materially ad-
versely affected, and such conditions shall continue unremedied
for a period of thirty (30) days after the Issuer becomes aware
of such conditions; or
(d) An order or decree shall be entered, with the consent or acqui-
escence of the Issuer, appointing a receiver or receivers of the
Issuer or the Pledged Revenues, or any part thereof or the fil-
ing of a petition by the Issuer for relief under federal bank-
ruptcy laws or any other applicable law or statute of the United
States of America or the State, which shall not be dismissed,
vacated or discharged within thirty (30) days after the filing
thereof; or
(e) Any proceedings shall be instituted, with the consent or acqui-
escence of the Issuer, for the purpose of effecting a composi-
tion between the Issuer and its creditors or for the purpose of
adjusting the claims of such creditors, pursuant to any federal
or state statutes now or hereafter enacted, if the claims of
such creditors are under any circumstances payable from the
Pledged Revenues (except for any portion of the Pledged Revenues
which may be used by the Issuer for any lawful purpose hereun-
der); or
(f) The entry of a final judgment or judgments for the payment of
money against the Issuer which subjects the Pledged Revenues or
any of the Accounts pledged hereunder to a lien for the payment
thereof in contravention of the provisions of this Resolution
for which there does not exist adequate insurance, reserves or
appropriate surety or indemnity bonds for the timely payment
thereof, and any such judgment shall not be discharged within
ninety (90) days from the entry thereof or an appeal shall not
be taken therefrom or from the order, decree or process upon
which or pursuant to which such judgment shall have been granted
or entered, in such manner as to stay the execution of or levy
under such judgment, order, decree or process or the enforcement
thereof; or
(g) The Issuer shall default in the due and punctual performance of
any other of the covenants, conditions, agreements and provi-
sions contained in the Bonds or the Notes or in this Resolution
on the part of the Issuer to be performed, and such default
shall continue for thirty (30) days after written notice speci-
fying such default and requiring the same to be remedied shall
have been given to the Issuer by the registered owners of not
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less than twenty-five percent (25%) in aggregate principal
amount of the Bonds and Notes then outstanding.
(h) If any bonds or notes issued as permitted under Section 11.02(c)
are accelerated on account of any default thereon and if the use
of "Designated Revenues" to pay the principal and interest
thereon upon acceleration is deemed likely by the Issuer to
result in a subsequent default on the Bonds or Notes under para-
graph (a) above, then the Issuer shall immediately cause the
Accountant to examine the adequacy of the Pledged Revenues and
to render an opinion as to his findings.
Notwithstanding the foregoing, with respect to the events described
in clauses (c) through (h), the Issuer shall not be deemed in default hereun-
der if such default can be cured within ninety days and if the Issuer in good
faith institutes appropriate curative action and diligently pursues such ac-
tion until the default has been corrected. Such correction shall be duly
noted by a resolution adopted by the City Council and mailed to all registered
Holders of the Bonds.
SECTION 12.02. Notice of Default. If an event of default shall
occur, the Issuer shall give written notice of the event of default, by regis-
tered or certified mail, to the Registrar or any Paying Agent and Authenticat-
ing Agent and the Original Purchaser of each Series of Bonds and Notes, within
five days after the Issuer has knowledge of the event of default unless such
event of default shall have been cured. If an event of default occurs (and
has not been cured) of which the Issuer has failed to give notice, then any of
the foregoing or any Holder of any of the Bonds or Notes may give written
notice thereof to the others. Within thirty (30) days after the giving of
notice of its occurrence as aforesaid, notice shall also be given to the Hold-
ers of all Bonds and Notes then outstanding as shown by the Register at the
close of business fifteen (15) days prior to the mailing of that notice; pro-
vided that except in the case of a default in the payment of the principal of
or any premium or interest on any Bond or Note or in the payment of any manda-
tory sinking fund redemption requirement, the Issuer may withhold such notice
if and so long as the Issuer has cured such event of default within such
thirty (30) day period.
SECTION 12.03. Enforcement of Remedies; Appointment of Trustee.
Upon the happening and continuance of any event of default specified in Sec-
tion 12.01 of this Article, then and in every such case the owners of not less
than twenty-five percent (25%) in aggregate principal amount of the Bonds and
Notes then outstanding hereunder may appoint any state bank, national bank,
trust company or national banking association qualified to transact business
in Florida to serve as trustee for the benefit of the Holders of all Bonds and
Notes then outstanding (the "Trustee"). Notice of such appointment, together
with evidence of the requisite signatures of the Holders of not less than
twenty-five percent (25%) in aggregate principal amount of Bonds and Notes 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 such appointment shall
be given to all Holders of Bonds and Notes in the same manner as notices of
redemption are given hereunder, After the appointment of the first Trustee
hereunder, no further Trustees may be appointed; however, the Holders of a
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majority of the Bonds and Notes then outstanding may remove the Trustee ini-
tially appointed and appoint a successor and subsequent successors at any
time. If the default for which the Trustee was appointed is cured or waived
pursuant to this Article, the appointment of the Trustee shall terminate with
respect to such default.
After a Trustee has been appointed pursuant to the foregoing, the
Trustee may proceed, and upon the written request of Holders of twenty-five
percent (25%) of the principal amount of Bonds and Notes Outstanding shall
proceed, subject to the provisions of Section 12.03 of this Resolution, to
protect and enforce the rights of the Holders of the Bonds and Notes under the
laws of the State, including the Act, and under this Resolution, by such
suits, actions or special proceedings in equity or at law, or by proceedings
in the office of any board, body or officer having jurisdiction, either for
the specific performance of any covenant or agreement contained herein or in
aid of execution of any power herein granted or for the enforcement of any
proper legal or equitable remedy, all as the Trustee, being advised by coun-
sel, shall deem most effectual to protect aod enforce such rights.
In the enforcement of any remedy against the Issuer under this Reso-
lution the Trustee shall be entitled to sue for, enforce payment of and re-
cei~e any and all amounts then due, or becoming due during the continuance of
such event of default, and at any time remaining, from the Issuer for the
principal of, premium, if any, or interest on the Bonds or Notes or otherwise
becoming due under any provisions of this Resolution or of such Bonds or Notes
with interest on overdue payments of principal and premium, if any, and, to
the extent permitted by law, on overdue payments of interest at the rate or
rates of interest specified in such Bonds or Notes, together with any and all
costs and expenses of collection and of all proceedings hereunder and under
such Bonds or Notes, including reasonable fees and expenses of the Trustee and
counsel for the Trustee, without prejudice to any other right or remedy of the
Trustee or of the Holders of Bonds or Notes, and to recover and enforce any
judgment or decree against the Issuer, but solely as provided herein and in
such Bonds or Notes, for any portion of such amounts remaining unpaid and
interest, costs and expenses as above provided, and to collect (but, in the
case of Bonds, solely from moneys in the Debt Service Account, the Reserve
Account and, in the case of Notes, solely from moneys in the Debt Service
Account available for the payment of Note Service Charges) in any manner pro-
vided by law, the moneys adjudged or decreed to be payable provided that the
Issuer's liability for such fees and expenses shall be limited to and payable
from the Pledged Revenues from time to time on deposit in the General Revenue
Account.
SECTION 12.04. Acceleration of Maturities. Upon the happening and
continuance of any event of default specified in Section 12.01 (a), (b), (d)
(e) or (h) of this Article, then and in every such case the Trustee may, and
upon the written request of the owners of not less than a majority in aggre-
gate principal amount of the Bonds and of the Notes then outstanding shall, by
a notice in writing to the Issuer, declare the principal of all of the Bonds
and Notes then outstanding (if not then due and payable) to be due and payable
immediately, with such premium, if any, as may be required for optional re-
demption and upon such declaration the same shall become and be immediately
due and payable, anything contained in the Bonds or in the Notes or in this
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Resolution to the contrary notwithstanding; provided, however, that if at any
time after the principal of the Bonds and Notes shall have been so declared to
be due and payable, and before the entry of final judgment or decree in any
suit, action or proceeding instituted on account of such default, or before
the completion of the enforcement of any other remedy under this Resolution,
moneys shall have accumulated in the appropriate accounts created under this
Resolution sufficient to pay the principal of all matured Bonds and Notes and
all arrears of interest, if any, upon all Bonds and Notes then outstanding
(except the principal of any Bonds and Notes not then due and payable by their
terms and the interest accrued on such Bonds and Notes since the last interest
payment date), and the charges, compensation, expenses, disbursements, ad-
vances and liabilities of the Trustee and all other amounts then payable by
the Issuer hereunder shall have been paid or a sum sufficient to pay the same
shall have been set aside, and every other default known to the Trustee, in
the observance or performance of any covenant, condition, agreement or provi-
sion contained in the Bonds or the Notes or in this Resolution (other than a
default in the payment of the principal of such Bonds and Notes then due and
payable only because of declaration under this Section) shall have been
remedied to the satisfaction of the Trustee, then and in every such case the
Trustee may, and upon the written request of the owners of not less than a
majority in aggregate principal amount of the Bonds and Notes not then due and
payable by their terms and then outstanding shall, by written notice to the
Issuer, rescind and annul such declaration and its consequences, but no such
rescission or annulment shall extend to or affect any subsequent default or
impair any right consequent thereon.
SECTION 12.05 Effect of Discontinuing Proceedings. In case any
proceeding taken by the Trustee or any Holder of Bonds or Notes on account of
any default shall have been discontinued or abandoned for any reason or shall
have been determined adversely to the Trustee or such Holder, then and in
every such case the Issuer, the Trustee and Holders of Bonds or Notes shall be
restored to their former positions and rights hereunder, respectively, and all
rights, remedies and powers of the Trustee shall continue as though no such
proceeding had been taken.
SECTION 12.06. Directions to Trustee as to Remedial Proceedings.
Anything in this Resolution to the contrary notwithstanding, the Holders of a
majority in principal amount of the Bonds and of the Notes then outstanding
hereunder shall 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 of this Resolution, 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 or Notes not parties
to such direction.
SECTION 12.07. Restrictions on Actions by Holders of Bonds and
Notes. No Holder of Bonds or Notes shall have any right to institute any
suit, action or proceeding in equity or at law for the execution of any trust
hereunder or for any other remedy hereunder unless a Trustee shall have been
appointed as provided in Section 12.03 hereof and unless such Holder previous-
ly shall have given to the Trustee written notice of the event of default on
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account of which such suit, action or proceeding is to be taken, and unless
the Holders of not less than twenty-five percent (25%) in principal amount of
the Bonds and Notes then outstanding shall have made written request of the
Trustee to exercise such powers or right of action, as the case may be, after
such right shall have accrued, and shall have afforded the Trustee a reason-
able opportunity either to proceed to exercise the powers hereinabove granted
or to institute such action, suit or proceeding in its or their name, and
unless, also, there shall have been offered to the Trustee reasonable security
and indemnity against the costs, expenses and liabilities to be incurred
therein or thereby, including the reasonable fees of its attorneys (including
fees on appeal), and the Trustee shall have refused or neglected to comply
with such request within a reasonable time; and such notification, request and
offer of indemnity are hereby declared in every such case, at the option of
the Trustee, to be conditions precedent to the execution of the powers and
trusts of this Resolution or for any other remedy hereunder. It is understood
and intended that no one or more owners of the Bonds or Notes hereby secured
shall have any right in any manner whatever by his or their action to affect,
disturb or prejudice the security of this Resolution, or to enforce any right
hereunder, except in the manner herein provided, and that all proceedings at
law or in equity shall be instituted, had and maintained in the manner herein
provided and for the benefit of all Holders of Bonds and Notes, as their in-
terest may appear, and that any individual rights of action or any other right
given to one or more of such Holders by law are restricted by this Resolution
to the rights and remedies herein provided.
Nothing contained herein, however, shall affect or impair the right
of any Holder of any Bond or Note, individually, to enforce the payment of the
principal of and interest on his Bond or Bonds or Note or Notes at and after
the maturity thereof, at the time, place, from the source and in the manner
provided in this Resolution.
SECTION 12.08. Appointment of a Receiver. Upon the happening and
continuance of an event of default, and upon the filing of a suit or other
commencement of judicial proceedings to enforce the rights of the Trustee and
of the Holders of Bonds and Notes under this Resolution, the Trustee shall be
entitled, as a matter of right, without regard to the solvency of the Issuer,
to file suit in the Circuit Court in and for Indian River County, Florida,
seeking the appointment of a receiver or receivers of the Pledged Revenues and
the Trust Fund and Accounts created hereby, pending such proceedings, with
such powers as the court making such appointments shall confer, whether or not
the Pledged Revenues pledged hereunder shall be deemed sufficient ultimately
to satisfy the Bonds and Notes Outstanding hereunder.
SECTION 12.09. Application of Moneys. After payment of any costs,
expenses, liabilities and advances paid, incurred or made by the Trustee in
the collection of moneys pursuant to any right given or action taken under the
provisions of this Article (including without limitation, reasonable attor-
neys' fees and expenses, except as limited by law or judicial order or deci-
sion entered in any action taken under this Article XII), all moneys received
by the Trustee, shall be applied as follows:
(a)
Unless the principal of all of the
become, or shall have been declared
Bonds and Notes shall have
to be, due and payable, all
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of those moneys shall be deposited in the Debt Service Account
and shall be applied:
First
Second
Third
Fourth
To the payment to the Holders entitled thereto of
all installments of interest then due on the Bonds,
in the order of the dates of maturity of the in-
stallments of that interest, beginning with the
earliest date of maturity and, if the amount avail-
able is not sufficient to pay in full any particu-
lar installment, then to the payment thereof rat-
ably, according to the amounts due on that install-
ment, to the Holders entitled thereto, without any
discrimination or privilege, except as to any dif-
ference in the respective rates of interest speci-
fied in the Bonds; and
To the payment to the Holders entitled thereto of
the unpaid principal of any of the Bonds which
shall have become due (other than Bonds previously
called for redemption for the payment of which
moneys are held pursuant to the provisions hereof),
whether at stated maturity, by redemption or pursu-
ant to any mandatory sinking fund requirements, in
the order of their due dates, beginning with the
earliest due date, with interest on those Bonds
from the respective dates upon which they became
due at the rates specified in those Bonds, and if
the amount available is not sufficient to pay in
full all Bonds due on any particular date, together
with that interest, then to the payment thereof
ratably, according to the amounts of principal due
on that date, to the Holders entitled thereto,
without any discrimination or privilege.
To the payment to the Holders entitled thereto of
all installments of interest then due on the Notes,
in the order of the dates of maturity of the in-
stallments of that interest, beginning with the
earliest date of maturity and, if the amount avail-
able is not sufficient to pay in full any particu-
lar installment, then to the payment thereof rat-
ably, according to the amounts due on that install-
ment, to the Holders entitled thereto, without any
discrimination or privilege, except as to any dif-
ference in the respective rates of interest speci-
fied in the Notes; and
To the payment to the Holders entitled thereto of
the unpaid principal of any of the Notes which
shall have become due (other than Notes previously
called for redemption for the payment of which
moneys are held pursuant to the provisions hereof),
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whether at stated maturity, by redemption or pursu-
ant to any mandatory sinking fund requirements, in
the order of their due dates, beginning with the
earliest due date, with interest on those Notes
from the respective dates upon which they became
due at the rates specified in those Notes, and if
the amount available is not sufficient to pay in
full all Notes due on any particular date, together
with that interest, then to the payment thereof
ratably, according to the amounts of principal due
on that date, to the Holders entitled thereto,
without any discrimination or privilege.
(b) If the principal of all of the Bonds and Notes shall have become
due or shall have been declared to be due and payable pursuant
to this Article, all of those moneys shall be deposited into the
Debt Service Account and shall be applied as follows:
First
To the payment of the principal and interest then
due and unpaid upon the Bonds, without preference
or priority of principal over interest, of interest
over principal, 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 inter-
est, to the Holders entitled thereto, without any
discrimination or privilege, except as to any dif-
ference in the respective rates of interest speci-
fied in the Bonds; and
Second
To the payment of the principal and interest then
due and unpaid upon the Notes, without preference
or priority of principal over interest, of interest
over principal, of any installment of interest over
any other installment of interest, or of any Note
over any other Note, ratably according to the
amounts due respectively for principal and inter-
est, to the Holders entitled thereto, without any
discrimination or privilege, except as to any dif-
ference in the respective rates of interest speci-
fied in the Notes.
(c) If the principal of all of the Bonds and Notes shall have been
declared to be due and payable pursuant to this Article, and if
that declaration thereafter shall have been rescinded and an-
nulled under the provisions of Sections 12.04 and 12.10 hereof,
subject to the provisions of paragraph (b) of this Section in
the event that the principal of all of the Bonds and Notes shall
become due and payable later, the moneys shall be deposited in
the Debt Service Account and shall be applied in accordance with
the provisions of paragraph (a).
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(d) Whenever moneys are to be applied pursuant to the provisions of
this Seetion, those moneys shall be applied at sueh times, and
from time to time, as the Trustee shall determine, having due
regard to the amount of moneys available for applieation and the
likelihood of additional moneys beeoming available for appliea-
tion in the future. Whenever the Trustee shall direet the ap-
plieation of those moneys, it shall fix the date upon whieh the
applieation is to be made, and upon that date, interest shall
eease to aeerue on the amount of prineipal, if any, to be paid
on that date, provided the moneys are available therefor. The
Trustee shall give notiee of the deposit with the Paying Agents
of any moneys and of the fixing of that date, all consistent
with the requirements of Section 6.08 hereof for the establish-
ment of, and for giving notiee with respeet to, a Speeial Reeord
Date for the payment of overdue interest. The Paying Agent
shall not be required to make payment of prineipal of or any
premium on a Bond or Note to the Holder thereof, until the Bond
or Note shall be presented to the Issuer for appropriate en-
dorsement or for eaneellation if it is paid fully.
SECTION 12.10. Waivers of Events of Default. Exeept as hereinafter
provided, at any time, in its diseretion, the Trustee may waive any event of
default hereunder and Its eonsequenees and may reseind and annul any declara-
tion of maturity of prineipal of the Bonds and Notes. The Trustee shall do so
upon the written request of the Holders of,
(a) at least a majority in aggregate prineipal amount of all Bonds
and of all Notes then outstanding in respeet of whieh an event
of default in the payment of Bond Serviee Charges or Note Ser-
viee Charges exists, or
(b)
at least 25 pereent in
and of all Notes then
event of default.
aggregate prineipal amount of all Bonds
outstanding, in the ease of any other
There shall not be so waived, however, any event of default deseribed
in paragraph (a) or (b) of Seetion 12.01 hereof or any deelaration of aeeeler-
ation in eonneetion therewith reseinded or annulled, unless at the time of
that waiver or reseission and annulment payments of the amounts provided in
Seetion 12.04 hereof for waiver, reseission and annulment in eonneetion with
aeeeleration of maturity have been made or provision has been made therefor.
In the ease of the waiver or reseission and annulment, or in ease any suit,
aetion or proeeedings taken by the Trustee on aeeount of any event of default
shall have been diseontinued, abandoned or determined adversely to it, the
Issuer, the Trustee and the Holders shall be restored to their former posi-
tions and rights hereunder, respeetively. No waiver or reseission shall ex-
tend to any subsequent or other event of default or impair any right eonse-
quent thereon. If after a Trustee has been appointed, all events of default
have been eured and waived, the Trustee and any receiver appointed shall be
dis eharged.
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ARTICLE XIII
Supplemental Ordinances and Resolutions;
Amendments
SECTION 13.01 Supplemental Ordinances and Resolutions. The
Governing Body of the Issuer may, from time to time, adopt ordinances and
resolutions supplemental hereto for the purpose of providing for the issuance
of one or more Series of Bonds or Notes hereunder, provided that no such sup-
plemental ordinance or resolution shall modify or amend any provision hereof
except as permitted by Section 13.02 or Section 13.03 hereof.
SECTION 13.02. Amendments Not Requiring Consent of Holders. Without
the consent of, or notice to, any of the Holders of the Bonds and Notes, the
Issuer may adopt an ordinance making amendments hereto which shall not, in the
opinion of the Issuer be inconsistent with the terms and provisions hereof for
anyone or more of the following purposes:
(a) To cure any ambiguity, inconsistency or formal defect or omis-
sion herein;
(b) To grant to or confer upon the Holders of Bonds or Notes any
additional rights, remedies, powers or authority that lawfully
may be granted to or conferred upon such Holders, provided, that
the granting of such rights, remedies, powers or authority to
the Holders of Bonds or Notes, respectively, shall not be to the
prejudice of the Holders of Notes or Bonds, respectively;
(c) To pledge additional revenues hereunder;
(d) To add to the covenants, agreements and obligations of the
Issuer herein, other covenants, agreements and obligations to be
observed for the protection of the Holders of Bonds or Notes, or
to surrender or limit any right, power or authority reserved to
or conferred upon the Issuer herein, including without limita-
tion, the limitation of rights of redemption so that in certain
instances Bonds of different series or Notes of different series
will be redeemed in some prescribed relationship to one another
for the protection of the Holders of a particular Series of
Bonds or Notes;
(e)
To evidence any succession to the
its successor of the covenants,
the Issuer hereunder and under the
Issuer and the assumption by
agreements and obligations of
Bonds and Notes;
(f) To make necessary or advisable amendments or additions in con-
nection with the issuance of Bonds or Notes in accordance here-
with as do not adversely affect the interests of Holders of
Outstanding Bonds or Notes;
(g) To permit the exchange of Bonds or Notes, at the option of the
Holder or Holders thereof, for coupon Bonds or Notes of the same
series payable to bearer in an aggregate principal amount not
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exceeding the unmatured and unredeemed principal amount of the
Predecessor Bonds or Notes, bearing interest at the same rate or
rates and maturing on the same date or dates, with coupons at-
tached representing all unpaid interest due or to become due
thereon if, in the opinion of Bond Counsel, that exchange would
not result in the interest on any of the Outstanding Bonds or
Notes becoming subject to federal income taxation;
(h) To specify further the duties and responsibilities of, and to
define further the relationship among, the Issuer, the Registrar
and any Authenticating Agents or Paying Agents;
(i) To achieve compliance with any applicable federal securities or
tax law; and
(j)
To permit any other amendment
Issuer and Bond Counsel, is not
of any of the Bonds or Notes.
which, in the judgment of the
to the prejudice of the Holders
The provisions of Subsection 13.02 (g) shall not be deemed to consti-
tute a waiver by the Registrar, the Issuer or any Holder of the Bonds or Notes
of any right which it may have in the absence of those provisions to contest
the application of any change in law hereto or to the Bonds or Notes.
SECTION 13.03. Amendments Requiring Consent of Bondholders. Exclu-
sive of amendments to which reference is made in Sections 13.02 and 13.04
hereof and subject to the terms, provisions and limitations contained in this
Section, and not otherwise, the Issuer, with the consent of any recognized
municipal bond insurer insuring the Bonds and the Holders of not less than 66-
2/3% in aggregate principal amount of the Bonds at the time outstanding to be
affected thereby, and with the consent of the Holders of not less than a ma-
jority in aggregate principal amount of the Notes at the time Outstanding to
be affected thereby, may by subsequent ordinance amend this Resolution adding
any provisions to, changing in any manner or eliminating any of the provisions
hereof or restricting in any manner the rights of the Holders of Bonds or
Notes. Nothing in this Section or Section 13.02 hereof shall permit, however,
or be construed as permitting:
(a) without the consent of the Holder of each Bond or Note so af-
fected, (i) an extension of the maturity of the principal of or
the interest on any Bond or Note, (ii) a reduction in the prin-
cipal amount of any Bond or Note or the rate of interest or
premium thereon, (iii) a reduction in the amount or extension of
the time of payment of any mandatory sinking fund requirements,
(iv) in any manner alter or rescinds the pledge of the Gross
Revenues or the Designated Revenues except as otherwise provided
in this Resolution, or
.
(b) without the consent of the Holders of all Bonds then Outstand-
ing, (i) the creation of a privilege or priority of any Bond or
Bonds over any other Bond or Bonds, or (ii) a reduction in the
aggregate principal amount of the Bonds required for consent to
a supplemental resolution or ordinance, or
- 66 -
(c) without the consent of Holders of all Notes then Outstanding,
(i) the creation of a privilege or priority of any Note or Notes
over any other Note or Notes, or (ii) a reduction in the aggre-
gate principal amount of Notes required for consent to a supple-
mental resolution or ordinance,
If the Issuer shall desire to amend this Resolution pursuant to the
provisions of this Section the Issuer shall cause notice of the proposed
amendment to be given to the Holders of all Outstanding Bonds and Notes af-
fected thereby in the same manner as notices of redemption are given hereun-
der. The notice shall set forth briefly the nature of the proposed amendment
and shall state that copies thereof are on file at the principal office of the
Issuer for inspection by all Holders.
The Issuer shall not be subject to any liability to any Holder by
reason of the Issuer's failure to mail or publish, or the failure of any Hold-
er to receive or obtain, the notice required by this Section. Any failure of
that nature shall not affect the validity of the amendment when there has been
consent thereto, or approval thereof, as provided in this Section.
If the Issuer shall receive, within a period prescribed by the Issuer
of not less than 60 days but not exceeding one year, following the mailing of
the notice, an instrument or document or instruments or documents, in form to
which the Issuer does not reasonably object, purporting to be executed by the
Holders of not less than 66-2/3% in aggregate principal amount of the Bonds
affected thereby then outstanding and purporting to be executed by the Holders
of not less than 66-2/3% of the Notes affected thereby then outstanding (which
instrument or document or instruments or documents shall refer to the proposed
amendment in the form described in the notice and specifically shall consent
to the amendment in substantially that form), the Issuer may, but shall not
otherwise, adopt the ordinance or resolution containing such amendment in
substantially the form to which reference is made in the notice without lia-
bility or responsibility to any Holder of any Bond or Note, regardless of
whether that Holder shall have consented thereto.
Any consent shall be binding upon the Holder of the Bond or Note
giving the consent and, anything herein to the contrary notwithstanding, upon
any subsequent Holder of that Bond or Note and of any Bond or Note issued in
exchange therefor (regardless of whether the subsequent Holder has notice of
the consent to the amendment). A consent may be revoked in writing, however,
by the Holder who gave the consent or by a subsequent Holder of the Bond by a
revocation of such consent received by the Issuer prior to the adoption of
such ordinance or resolution. At any time after the Holders of the required
percentage of Bonds and Notes shall have filed their consents to the amend-
ment, the Issuer shall make and file with its Clerk a written statement that
the Holders of the required percentage of Bonds and Notes have filed those
consents. That written statement shall be conclusive evidence that the con-
sents have been so filed.
If the Holders of the required percentage in aggregate principal
amount of both Bonds and Notes affected thereby then outstanding shall have
consented to the amendment, as provided in this Section, no Holder shall have
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any right (a) to object to such amendment or any of the terms and provisions
contained therein, or the operation thereof, or (b) to question the propriety
of the adoption of the ordinance or resolution containing the same, or (c) to
enjoin or restrain the Issuer from adopting the same or from taking any action
pursuant to the provisions thereof.
SECTION 13.04. Modification by Unanimous Consent. Notwithstanding
anything contained elsewhere in this Resolution, the rights and obligations of
the Issuer and of the Holders, and the terms and provisions of the Bonds and
Notes and this Resolution or any amendment hereto, may be modified or altered
in any respect with the consent of the Holders of all of the Bonds and Notes
then outstanding.
SECTION 13.05. Effect of Amendments. From and after the effective
date of any ordinance amending this Resolution:
(a) That amendment shall form a part of this Resolution;
(b) All terms and conditions contained in that amendment as to any
provision authorized to be contained therein shall be deemed to
be a part of the terms and conditions of this Resolution for any
and all purposes;
(c) This Resolution shall be deemed to be modified and amended in
accordance with the amendment; and
(d) The respective rights, duties and obligations under this Resolu-
tion of the Issuer, the Registrar, the Paying Agents, the Au-
thenticating Agents and all Holders of Bonds and Notes then
outstanding shall be determined, exercised and enforced hereun-
der in a manner which is subject in all respects to those modi-
fications and amendments made thereby.
Express reference to
text of any Bonds and Notes
necessary or desirable by the
shall be mailed by the Issuer
Paying Agent and the Original
affected thereby.
any such amendatory ordinance may be made in the
issued thereafter, if that reference is deemed
Issuer. A copy of any such amendatory ordinance
to the Registrar, each Authenticating Agent and
Purchaser of each Series of Bonds and Notes
SECTION 13.06. Opinion of Counsel. The Issuer may obtain, and shall
be fully protected in relying upon, the opinion of Bond Counsel as conclusive
evidence that any proposed amendment complies with the provisions of this
Article, and that it is proper for the Issuer to adopt an ordinance making
such amendment under the provisions of this Article.
SECTION 13.07. Amendments Affecting Holders of Certain Obligations.
No amendment which has a material adverse effect on the holders of any out-
standing bonds or notes issued or permitted under Section 11.02(c) may be made
without the consent of the holders of a majority in outstanding principal
amount thereof.
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ARTICLE XIV
Defeasance
SECTION 14.01. Release of Lien. If (a) the Issuer shall pay all of
the Outstanding Bonds and Notes, or shall cause them to be paid and dis-
charged, or if there otherwise shall be paid to the Holders of the Outstanding
Bonds and Notes, all Bond Service Charges and Note Service Charges, respec-
tively, due or to become due thereon, and (b) provision also shall be made for
the payment of all other sums payable hereunder, the lien on and pledge of the
Pledged Revenues and other moneys pledged hereunder shall cease, determine and
become null and void, and the covenants, agreements and obligations of the
Issuer hereunder shall be released, discharged and satisfied (except for those
provisions surviving by reason of Section 14.03 hereof in the event any of the
Bonds or Notes are deemed paid and discharged pursuant to the provisions of
Section 14.02 hereof).
Thereupon, and subject to the provisions of Section 14.03 hereof,
each Paying Agent shall assign and deliver to the Issuer any property subject
at the time to the lien hereof which then may be in their possession, except
amounts in the Bond Payment Account required to be held by the Paying Agents
for the payment of Bonds or Notes which have become due and payable and for
the payment of Bonds and Notes which are deemed to be paid and discharged
pursuant to the provisions of Section 14.02 hereof.
The City hereby covenants that it will not structure any defeasance
in a manner which would cause the Bonds or Notes being refunded to be consid-
ered "arbitrage bonds" within the meaning of Section 103(c) of the Code.
SECTION 14.02. Payment and Discharge of Bonds and Notes. Allor any
part of the Bonds or Notes shall be deemed to have been paid and discharged
within the meaning hereof, including without limitation, Section 14.01 hereof,
if:
(a) any Paying Agent or escrow agent shall have received, in trust
for and irrevocably committed thereto, sufficient moneys, or
(b) any Paying Agent or escrow agent shall have received, in trust
for and irrevocably committed thereto, noncallable Federal Secu-
rities which are certified by an independent public accounting
firm of national reputation to be of such maturities or redemp-
tion dates and interest payment dates, and to bear such inter-
est, as will be sufficient together with any moneys to which
reference is made in subparagraph (a) above, without further
investment or reinvestment of either the principal amount there-
of or the interest earnings therefrom (which earnings are to be
held likewise in trust and so committed, except as provided
herein) ,
for the payment of all principal of, premium,
Bonds or Notes, at their maturity or redemption
if a default in payment shall have occurred
date, then for the payment of all principal of,
if any, and interest on those
dates, as the case may be, or
on any maturity or redemption
premium, if any, and interest
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thereon to the date of the tender of payment; provided, that if any of those
Bonds or Notes are to be redeemed prior to the maturity thereof, notice of
that redemption shall have been duly given or irrevocable provision satisfac-
tory to such Paying Agent or escrow agent shall have been duly made for the
giving of that notice.
If any Bonds or Notes shall be deemed paid and discharged pursuant to
this Section 14.02, then within IS days after such Bonds or Notes are so
deemed paid and discharged the Issuer shall cause notice to be given to each
Holder as shown on the Register on the date on which such Bonds or Notes are
deemed paid and discharged. Such notice shall state the numbers of the Bonds
or Notes deemed paid and discharged or state that all Bonds or Notes of a
particular series are deemed paid and discharged, set forth a description of
the obligations held pursuant to subparagraph (b) of the first paragraph of
this Section 14.02 and specify any date or dates on which any of the Bonds or
Notes are to be called for redemption pursuant to notice of redemption given
or irrevocable provisions made for such notice pursuant to the first paragraph
of this Section 14.02. Such notice shall be given in the manner provided
herein for the giving of notice of redemption.
SECTION 14.03. Survival of Certain Provisions. Notwithstanding the
foregoing, any provisions hereof which relate to the maturity of Bonds or
Notes, interest payments and dates thereof, optional and mandatory redemption
provisions, credit against mandatory sinking fund requirements, exchange,
transfer and registration of Bonds or Notes, replacement of mutilated, de-
stroyed, lost or stolen Bonds or Notes, the safekeeping and cancellation of
Bonds or Notes, non-presentment of Bonds or Notes, the holding of moneys in
trust, and repayments to the Issuer from the Debt Service Account, Reserve
Account or Bond Payment ~ccount and the duties of the Registrar, Authenticat-
ing Agents and Paying Agents in connection with all of the foregoing, shall
remain in effect and be binding upon the Registrar, the Authenticating Agents,
Paying Agents and the Holders of Bonds and Notes notwithstanding the release
and discharge of the lien on and pledge of the Pledged Revenues and other
moneys pledged hereunder. The provisions of this Article shall survive such
release, discharge and satisfaction.
SECTION 14.04. Non-presentment of Bonds and Notes. In the event
that any Bond or Note shall not be presented for payment when the principal
thereof becomes due in whole or in part, either at stated maturity, by redemp-
tion or pursuant to any mandatory sinking fund requirements, or a check or
draft for interest is uncashed, if moneys sufficient to pay the principal, and
premium, if any, then due on that Bond or Note or to pay such check or draft
shall have been made available to any Paying Agent for the benefit of its
Holder, all liability of the Issuer to that Holder for such payment of the
principal, and premium, if any, then due of the Bond or Note or of such check
or draft thereupon shall, except as hereafter provided, cease and be dis-
charged completely. Thereupon, it shall be the duty of the Paying Agent to
hold those moneys, without liability for interest thereon, in the Bond Payment
Account for the exclusive benefit of the Holder, who shall be restricted
thereafter exclusively to those moneys for any claim of whatever nature on its
part hereunder or under the Bond or Note on, or with respect to, the princi-
pal, and premium, if any, then due of that Bond or Note or of such check or
draft.
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Any of those moneys which shall be so held by any Paying Agent, and
which remain unclaimed by the Holder of a Bond or Note not presented for pay-
ment or check or draft not cashed for a period of four years after the due
date thereof, shall be paid to the Issuer free of any trust or lien, upon a
request in writing by the Issuer. Thereafter, the Holder of that Bond or Note
or check or draft shall look only to the Issuer for payment and then only to
the extent of the amounts so received by the Issuer without any interest
thereon, and the Paying Agent shall not have any responsibility with respect
to those moneys. The right of such Holder to payment by the Issuer shall not
be a general obligation of the Issuer and shall be payable only from Pledged
Revenues, if any, then available for such payment, but such Holder shall have
no lien thereon for such payment.
SECTION 14.05. Repayment to the Issuer. Except as provided in
Section 14.04 hereof, any amounts remaining in the Debt Service Account and
Reserve Account (a) after all of the Outstanding Bonds and Notes shall be
deemed to have been paid and discharged under the provisions of this Resolu-
tion, and (b) after payment of all fees, charges and expenses of the Registrar
and any Paying Agents or Authenticating Agents and of all other amounts re-
quired to be paid hereunder, or any other instrument or document entered into
in connection herewith to provide for the payment of the principal of, premi-
um, if any, and interest on the Bonds and Notes, shall be paid to the Issuer
to the extent that those moneys are in excess of the amounts necessary to be
held in the Bond Payment Account to effect the payment and discharge of the
Outstanding Bonds and Notes.
ARTICLE XV
Registrars, Authenticating Agents
and Paying Agents
SECTION 15.01. Appointment of Registrars, Authenticating Agents and
Paying Agents. In each ordinance or resolution, supplemental hereto, pro-
viding for the issuance of any Series of Bonds or Notes hereunder, the Issuer
shall appoint a Registrar and one or more Paying Agent for such Series and if
the Bonds are to bear the facsimile signatures of both the Mayor and Clerk,
shall appoint an Authenticating Agent for such Series. The Issuer or any
officer or employee of the Issuer may serve as Registrar, Paying Agent or
Authenticating Agent. If any Bonds or Notes are to be advance refunded, the
Issuer may enter into an escrow agreement with the Paying Agent for the Bonds
or Notes to be refunded (providing that neither the Issuer nor any employee of
the Issuer, may serve as such Paying Agent except that the Director of Finance
may serve as temporary Paying Agent as provided in Section 15.03(4) hereof)
under which the Paying Agent shall hold moneys and Federal Securities as pro-
vided in Section 14.02 hereof and serve as Paying Agent for the payment of
Bond Service Charges or Note Service Charges payable therefrom.
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SECTION 15.02. Pees and Expenses. The Issuer may pay the Registrar
and any Paying Agents or Authenticating Agents fees for their services ren-
dered hereunder and for all expenses reasonably and necessarily paid or in-
curred by them in connection therewith and other expenses of the Issuer per-
taining to the Bonds and Notes including, but not limited to any bond insur-
ance premium, letter of credit fees, remarketing agents' fees and professional
fees and expenses. Such payment may be made out of any legally available
funds of the Issuer, but the Issuer may not be compelled to pay such fees and
expenses except from amounts on deposit in the General Revenue Account or from
Bond or Note Proceeds on deposit in the Construction Account.
SECTION 15.03. Succession.
(1) Succession. Anything herein to the contrary notwithstanding,
any corporation or association (i) into which a Registrar, Authenticating
Agent or Paying Agent may be converted or merged, (ii) with which a Registrar,
Authenticating Agent or Paying Agent or any successor to it may be consolidat-
ed, or (iii) to which it may sell or transfer its assets as a whole or sub-
stantially as a whole, or any corporation or association resulting from any
such conversion, merger, consolidation, sale or transfer, ipso facto, shall be
and become successor Registrar, Authenticating Agent or Paying Agent to that
Registrar, Authenticating Agent or Paying Agent hereunder and shall be vested
with each and every power, right, duty, obligation, discretion and privilege
expressed or intended hereby to be exercised by or vested in the predecessor
Registrar, Authenticating Agent or Paying Agent without the execution or
filing of any instrument or document or any further act on the part of any of
the parties hereto.
(2) Resignation. A Registrar, Authenticating Agent or Paying Agent
may resign at any time by giving written notice of its resignation to the
Issuer, the Original Purchaser of each Series of Bonds and Notes then out-
standing for which it is Registrar, Paying Agent or Authenticating Agent, at
least 60 days before the resignation is stated to take effect. The resigna-
tion shall take effect on the date stated therein, provided however, that if
the successor Registrar, Authenticating Agent or Paying Agent is appointed and
accepts that appointment before the time stated in the notice, the resignation
may become effective at such earlier date.
(3) Removal. The Registrar, Authenticating Agent or Paying Agent
may be removed at any time by the Issuer, by an instrument or document signed
by the Mayor in writing delivered to the Registrar, Authenticating Agent or
Paying Agent.
(4) Appointment of Successors. If (i) a Registrar, Authenticating
Agent or Paying Agent shall resign, shall be removed, shall be dissolved, or
shall become otherwise completely incapable of acting hereunder, (ii) a Regis-
trar, Authenticating Agent or Paying Agent shall be taken under the control of
any public officer or officers, (iii) a receiver shall be appointed for a
Registrar, Authenticating Agent or Paying Agent by a court or (iv) a Regis-
trar, Authenticating Agent or Paying Agent shall have an order for relief
entered in any case commenced by or against it under the federal bankruptcy
laws or commence a proceeding under any federal or state bankruptcy, insolven-
cy. reorganization or similar law, or having such a proceeding commenced
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against it and either have an order of insolvency or reorganization entered
against it or have the proceeding remain undismissed and unstayed for ninety
days, then a successor Registrar, Authenticating Agent or Paying Agent shall
be appointed by the Issuer; provided, that if a successor Registrar, Authenti-
cating Agent or Paying Agent is not so appointed within ten days after (a) a
notice of resignation is received by the Issuer or an instrument or document
of removal is delivered by the Issuer, as provided above, or (b) the Issuer
has received actual notice that the Registrar, Authenticating Agent or Paying
Agent has been dissolved, taken under control, become otherwise incapable of
acting or a receiver has been appointed, in each case, as provided above,
then, if the Issuer shall not have appointed a successor Registrar, Authenti-
cating Agent or Paying Agent, the Director of Finance of the Issuer shall
serve as temporary Registrar, Authenticating Agent or Paying Agent until it
appoints a successor.
Notice of any such resignation, removal or dissolution and of the
appointment of any successor Registrar, Authenticating Agent or Paying Agent
shall be given to the Holders of all Outstanding Bonds and Notes in the same
manner as Notices of redemption are given hereunder.
Every successor Registrar, Authenticating Agent or Paying Agent ap-
pointed hereunder shall execute and acknowledge, and shall deliver to its
predecessor and the Issuer, an instrument or document in writing accepting the
appointment. Thereupon, without any further act, the successor shall become
vested with all of the properties, remedies, powers, rights, duties, obliga-
tions, discretions, privileges, claims, demands, causes of action, immunities,
titles and interests of its predecessor. Upon the written request of its
successor or the Issuer, a predecessor Registrar, Authenticating Agent or
Paying Agent (a) shall execute and deliver an instrument or document transfer-
ring to its successor all of the properties, remedies, powers, rights, duties,
obligations, discretions, privileges, claims, demands, causes of action, im-
munities, titles and interests of it as predecessor Registrar, Authenticating
Agent or Paying Agent hereunder, and (b) shall take any other action necessary
to duly assign, transfer and deliver to its successor all property and records
(including without limitation, the Register, any cancelled Bonds and any
moneys) held by it. Should any instrument or document in writing from the
Issuer be requested by any successor Registrar, Authenticating Agent or Paying
Agent for vesting and conveying more fully and certainly in and to that suc-
cessor the properties, remedies, powers, rights, duties, obligations, discre-
tions, privileges, claims, demands, causes of action, immunities, titles and
interests vested or conveyed or intended to be vested or conveyed hereby in or
to a predecessor Registrar, Authenticating Agent or Paying Agent, the Issuer
shall execute, acknowledge and deliver that instrument or document.
SECTION 15.04. Dealing in Bonds and Notes. A Registrar, a Paying
Agent and an Authenticsting Agent, their affiliates, and any directors, offi-
cers, employees or agents thereof, in good faith, may become the owners of
Bonds and Notes secured hereby with the same rights which it or they would
have hereunder if the Registrars, Paying Agents or Authenticating Agents did
not serve in those capacities.
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ARTICLE XVI
Meetings of Holders
SECTION 16.01. Purposes of Meetings. A meeting of Holders of Bonds
and Notes, or of the Holders of any Series of Bonds or Notes, may be called at
any time and from time to time pursuant to the provisions of this Article XVI,
to the extent relevant to the Holders of all of the Bonds or Notes or of Bonds
or Notes of that series, as the case may be, to take any action (a) authorized
under any provision hereof to be taken by or on behalf of the Holders of any
specified aggregate principal amount of the Bonds or Bonds of that Series or
Notes or Notes of that Series, or (b) authorized or permitted by law.
SECTION 16.02. Call of Meetings. The Issuer may call at any time a
meeting of Holders pursuant to Section 16.01 to be held at any reasonable time
and at any place the Issuer shall determine. Notice of such meeting, setting
forth the time, place and generally the subject matter thereof shall be mailed
by first class mail, postage prepaid not fewer than IS, nor more than 90 days
prior to the date of the meeting to the Holders at their addresses as they
appear on the Register at the close of business on the fifteenth day preceding
such mailing, which fifteenth day preceding the mailing shall be the record
date for the meeting.
If at any time the Holders of a least 25 percent in aggregate princi-
pal amount of the Bonds or Notes, or both Bonds and Notes, or if applicable,
the affected Series of Bonds or Notes, then outstanding, shall have requested
the Issuer to call a meeting of such Holders, by written request setting forth
the purpose of the meeting, and the Issuer shall not have mailed the notice of
the meeting within 20 days after receipt of the request, then the such Holders
of Bonds or Notes, or both Bonds and Notes, or if applicable, the affected
Series of Bonds or Notes in the amount above specified may determine the time
and the place of the meeting and may call the meeting to take. any action au-
thorized in Section 16.01, by mailing notice thereof as provided above.
Any meetings of Holders of Bonds or Notes or both Bonds and Notes, or
if applicable, the affected Series of Bonds or Notes, shall be valid without
notice if the Holders thereof are present in person or by proxy, or if notice
is waived before or after the meeting by such Holders who were not present at
the meeting, and if the Issuer is either present by duly authorized represen-
tatives or has waived notice, before or after the meeting.
SECTION 16.03. Voting. To be entitled to vote at any meeting of
Holders, a Person shall (a) be a Holder, as of the record date for the meet-
ing, of one or more Outstanding Bonds or Notes, or if applicable, of an af-
fected Series of Bonds or Notes, as of the record date for the meeting as
determined above, or (b) be a person appointed by an instrument or document in
writing as proxy by such Holder. Each Holder or proxy shall be entitled to
one vote for each $1,000 principal amount of Bonds or Notes held or repre-
sented by it.
The vote upon any resolution submitted to any meeting of Holders
shall be by written ballots on which shall be subscribed the signatures of the
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Holders of Bonds or of their representatives by proxy and the identifying
number or numbers of the Bonds held or represented by them.
SECTION 16.04. Conduct of. Meetings. Notwithstanding
provisions hereof, the Holders may make any reasonable regulation
may deem to be advisable for meetings of Holders, with regard to
any other
which they
(a) proof of the holding of Bonds and Notes and of the appointment
of proxies,
(b) the appointment and duties of inspectors of votes,
(c) recordation of the proceedings of those meetings,
(d) the execution, submission and examination of proxies and other
evidence of the right to vote, and
(e) any other matters concerning the conduct, adjournment or recon-
vening of meetings which they may think fit.
The Issuer shall appoint a temporary chair of the meeting by an in-
strument or document in writing, unless the meeting shall have been called by
the Holders, as provided in Section 16.02, in which case the Holders calling
the meeting, as the case may be, shall appoint a temporary chair in like man-
ner. A permanent chair and a permanent secretary of the meeting shall be
elected by vote of the Holders of a majority in principal amount of the Bonds
and Notes represented at the meeting and entitled to vote.
The only Persons who shall be entitled to be present or to speak at
any meeting of Holders shall be the Persons entitled to vote at the meeting
and their counsel, and representatives of the Trustee or Registrar and their
counsel and any representatives of the Issuer and its counsel.
SECTION 16.05. Miscellaneous. Nothing contained in this Article XVI
shall be deemed or construed to authorize or permit any hindrance or delay in
the exercise of any right or rights conferred upon or reserved to the Trustee
or to the Holders under any of the provisions of this Resolution or of the
Bonds or Notes by reason of any call of a meeting of Holders or any rights
conferred expressly or impliedly hereunder to make a call.
ARTICLE XVII
Performance of Covenants and Agreements
SECTION 17.01. Covenants and Agreements of the Issuer. In addition
to any other covenants and agreements of the Issuer contained herein, the
Issuer further covenants and agrees with the Holders of Bonds and Notes as
follows:
(a)
Payment of Bond Service Charges and
Issuer will pay all Bond Service
Note Service Charges. The
Charges and Note Service
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Charges, or cause them to be paid, solely from the sources pro-
vided herein, on the dates, at the places and in the manner
provided herein and in the Bonds and Notes.
(b) Recordings and Filings. The Issuer will cause this Resolution,
and any related instruments or documents relating to the pledge
made by it hereunder to secure the Bonds and Notes, to be re-
corded and filed in the manner and in the places which may be
required by law in order to preserve and protect fully the secu-
rity of the Holders of Bonds and Notes hereunder.
SECTION 17.02. Observance and Performance of Covenants, Agreements,
Authority and Actions. The Issuer will observe and perform faithfully at all
times all covenants, agreements, authority, actions, undertakings, stipu-
lations and provisions to be observed or performed on its part hereunder and
under the Bonds or Notes which are executed, authenticated and delivered here-
under, and under all proceedings of the Issuer pertaining thereto.
The Issuer represents and warrants that:
(a) it is duly authorized by the Constitution and laws of the State,
including particularly and without limitation the Act, adopt
this Resolution and perform its obligations hereunder, to issue
the Bonds and Notes and to provide the security for payment of
the Bond Service Charges and Note Service Charges in the manner
and to the extent set forth herein;
(b)
all actions required on
ance, sale and delivery
tion of this Resolution
effectively; and
its part to be
of the Bonds and
have been or
performed for the issu-
Notes and for the adop-
will be taken duly and
(c) the Bonds and Notes will be legal, valid and enforceable special
obligations of the Issuer according to their terms, except (i)
that the binding effect and enforceability thereof are subject
to applicable bankruptcy, insolvency, reorganization, moratorium
and other laws in effect from time to time affecting the rights
of creditors generally, and (ii) that the enforceability thereof
may be limited by the application of general principles of
equity.
SECTION 17.03. Enforcement of Issuer's Obligations. Each obligation
of the Issuer required to be undertaken pursuant to this Resolution, the Bonds
and the Notes is binding upon the Issuer, and upon each officer or employee
thereof as may have from time to time the authority under law to take any
action on behalf of the Issuer which may be necessary to perform all or any
part of that obligation, as a duty of the Issuer and of each of those officers
and employees resulting from such office or employment may be enforced by any
Trustee appointed as provided in Section 12.03 hereof or by the Holders
(subject to any limitations herein or enforcement by the Holders) either at
law or in equity, by suit, action, mandamus or other proceeding as provided by
law, except (a) that the enforceability thereof is subject to applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
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in effect from time to time
(b) that the enforceability
eral principles of equity.
affecting
thereof may
the rights of creditors generally, and
be limited by the application of gen-
ARTICLE XVIII
Miscellaneous
SECTION 18.01. Limitation of Rights. With the exception of rights
conferred expressly herein, nothing expressed or mentioned in or to be implied
from this Resolution or the Bonds or the Notes is intended or shall be con-
strued to give to any Person other than the Issuer, the Registrar, the Authen-
ticating Agents and Paying Agents, and the Holders of the Bonds or Notes any
legal or equitable right, remedy, power or claim under or with respect to this
Resolution or any covenants, agreements, conditions and provisions contained
herein. This Resolution and all of those covenants, agreements, conditions
and provisions are intended to be, and are, for the sole and exclusive benefit
of the Holders of the Bonds and Notes, as provided herein.
SECTION 18.02 Suspension of Mail or Publication. If because of the
suspension of delivery of first class mail or, for any other reason, any
person shall be unable to mail by the required class of mail any notice re-
quired to be mailed by the provisions of this Resolution or if because of
strike or otherwise, it shall not be possible to publish any notice required
to be published hereunder, such notice shall be given in such other manner as
in the judgment of the Person giving such notice shall most effectively ap-
proximate mailing or publication, as the case may be, thereof, and the giving
of that notice in that manner for all purposes of this Resolution shall be
deemed to be in compliance with the requirement for the giving thereof. Ex-
cept as otherwise provided herein, the mailing of any notice shall be deemed
complete upon deposit of that notice in the mail and the giving of any notice
by any other means of delivery shall be deemed complete upon receipt of the
notice.
SECTION 18.03. Payments Due on Saturdays, Sundays and Holidays. If
any Interest Payment Date, date of maturity of the principal of any Bonds or
Notes, or date fixed for redemption of any Bonds or Notes is a Saturday,
Sunday or a day on which (a) the Paying Agent is required, or authorized or
not prohibited, by law (including without limitation, executive orders) to
close and is closed, then payment of interest, principal and any redemption
premium need not be made by the Paying Agent on that date, but that payment
may be made on the next succeeding business day on which the Paying Agent is
open for business with the same force and effect as if that payment were made
on the Interest Payment Date, date of maturity or date fixed for redemption,
and no interest shall accrue for the period after that date, or (b) a Paying
Agent is required, or authorized or not prohibited, by law (including without
limitation, executive orders) to close and is closed, then payment of inter-
est, principal and any redemption premium need not be made by that Paying
Agent on that date, but that payment may be made on the next succeeding busi-
ness day on which that Paying Agent is open for business with the same force
and effect as if that payment were made on the Interest Payment Date, date of
maturity or date fixed for redemption and no interest shall accrue for the
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.
period after that date; provided, that if the Paying Agent is open for busi-
aess on the applicable Interest Payment Date, date of maturity or date fixed
for redemption, it shall make any payment required hereunder with respect to
payment of interest on Outstanding Bonds or Notes and payment of principal of
and premium on Bonds or Notes presented to it for payment, regardless of
whether any Paying Agent shall be open for business or closed on the applica-
ble Interest Payment Date, date of maturity or date fixed for redemption.
SECTION 18.04. Instruments of Holders. Any writing, including
without limitation, any consent, request, direction, approval, objection or
other instrument or document, required under this Resolution to be executed by
any Holder may be in any number of concurrent writings of similar tenor and
may be executed by that Holder in person or by an agent or attorney appointed
in writing. Proof of (a) the execution of any writing, including without
limitation, any consent, request, direction, approval, objection or other
instrument or document, (b) the execution of any writing appointing any agent
or attorney, and (c) the ownership of Bonds or Notes, shall be sufficient for
any of the purposes of this Resolution if made in the following manner and, if
so made, shall be conclusive in favor of the Issuer, the Registrar and any
Paying Agent and any Trustee appointed pursuant hereto with regard to any
action taken thereunder, namely:
(i) The fact and date of the execution by any person of any writing
may be proved by the certificate of any officer in any jurisdic-
tioa, who has power by law to take acknowledgments within that
jurisdiction, that the person signing the writing acknowledged
that execution before that officer, or by affidavit of any wit-
ness to that execution; and
(ii) The fact of ownership of Bonds or Notes shall he proved by the
Register maintained by the Registrar.
Nothing contained herein shall be construed to limit the Issuer, the
Registrar and any Paying Agent and any Trustee appointed pursuant to Section
12.03 hereof to the foregoing proof, or to limit the discretion of the Issuer,
the Registrar and any Paying Agent and any Trustee appointed pursuant to Sec-
tion 12.03 hereof, and the Issuer, the Registrar and any Paying Agent and any
such Trustee may accept any other evidence of the matters stated therein which
it deems to be sufficient. Any writing, including without limitation, any
consent, request, direction, approval, objection or other instrument or docu-
ment, of the Holder of any Bond or Note shall bind every future Holder of the
same Bond or Note, with respect to anything done or suffered to be done by the
Issuer, such Trustee, if any, the Registrar or any Paying Agent or Authenti-
cating Agent pursuant to that writing.
SECTION 18.05. Preemption of Rights and Remedies. If any Series of
Bonds or Notes are secured by a municipal bond insurance policy, surety bond,
letter of credit or other arrangement with a third party as to payment of
principal and interest, the ordinance or resolution providing for the issuance
thereof may preempt unto such third party one or more rights and remedies of
the Holders of Bonds or Notes of such Series, including but not limited to
rights to vote at meetings of Holders, rights to participate in the selection
of a Trustee, rights to consent to supplemental ordinances, rights to exercise
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. .
or participate in directing the exercise of remedies, and to waive or partici-
pate in the waiver of events of default, provided that notice of such preemp-
tion is set forth in the form of such Series of Bonds or Notes. Such preemp-
tion and its duration may be subject to express conditions. For all purposes
hereof the exercise or non-exercise by such third party of rights and remedies
so preempted to it shall be deemed to constitute the exercise or non-exercise
of such rights and remedies by the Holders of such Series of Bonds or Notes.
SECTION 18.06. Priority of This Resolution. This Resolution shall
be superior to any liens which may be placed upon the Pledged Revenues or any
other funds or accounts created pursuant thereto.
SECTION 18.07. Extent of Covenants; No Personal Liability. All
covenants, stipulations, obligations and agreements of the Issuer contained in
this Resolution are and shall be deemed to be covenants, stipulations, obliga-
tions and agreements of the Issuer to the full extent authorized by the Act
and permitted by the Constitution of the State. No covenant, stipulation,
obligation or agreement of the Issuer contained in this Resolution shall be
deemed to be a covenant, stipulation, obligation or agreement of any present
or future member, officer, agent or employee of the Issuer in other than that
person's official capacity. Neither the members of the Governing Body of the
Issuer nor any official executing the Bonds or Notes shall be liable personal-
ly on the Bonds or Notes or be subject to any personal liability or account-
ability by reason of the issuance or execution thereof.
SECTION 18.08. Governing Law. This Resolution, the Bonds and the
Notes shall be deemed to be contracts made under the laws of the State and for
all purposes shall be governed by and construed in accordance with the laws of
the State.
SECTION 18.09. Validation Authorized. The City Attorney is hereby
authorized to institute appropriate proceedings in the Circuit Court of the
Nineteenth Judicial Circuit of Florida, in and for Indian River County,
Florida, for the validation of the Bonds and Notes to be issued hereunder, and
the proper officers of the Issuer are hereby authorized to verify on behalf of
the Issuer any pleadings in such proceedings.
SECTION 18.10. Severability. In case any section or provision of
this Resolution, or any covenant, agreement, stipulation, obligation, act or
action, or part thereof, made, assumed, entered into or taken under this Reso-
lution, or any application thereof, is held to be illegal or invalid for any
reason, or is inoperable at any time, that illegality, invalidity or inopera-
bility shall not affect the remainder thereof or any other section or provi-
sion of this Resolution all of which shall be construed and enforced at the
time as if the illegal, invalid or inoperable portion were not contained
therein. Any illegality, invalidity or inoperability shall not affect any
legal, valid and operable section, provision, covenant, agreement, stipula-
tion, obligation, act, action, part or application, all of which shall be
deemed to be effective, operative, made, assumed, entered into or taken in the
manner and to the full extent permitted by law from time to time.
SECTION 18.11. Conflicts. All
thereof in conflict herewith, including
ordinances and resolutions or parts
Resolution R-80-4S, which authorizes
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the issuance of $1,600,000 principal amount of Golf Course Revenue Bonds are,
to the extent of such conflict, hereby superseded and repealed.
SECTION 18.12. Effective Date. This Resolution shall become effec-
tive immediately upon its passage and adoption.
PASSED A~ADOPTED by
Florida, this ~ day of
the City Council
A l.4 '" Cot.1 ,-
of the City of Sebastian,
, 1985.
CITY OF SEBASTIAN
ATTEST:
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CITY CLERK
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