Res 21-07
RESOLUTION NO. R 21-07
CITY OF DELRAY BEACH, FLORIDA
Utilities Tax Revenue Bonds, Series 2007
Utilities Tax Revenue Bond Resolution
Adopted August 21, 2007
Resolution No. R-21-07
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TABLE OF CONTENTS
Page
SECTION 2. AUTHORIZATION, PURPOSE AND BOND DESIGNATION .....................7
SECTION 3. TERMS AND DETAILS OF BONDS ..............................................................7
SECTION 4. APPLICATION OF BOND PROCEEDS .........................................................8
SECTION 5. COVENANTS OF THE CITY ........................................................................11
SECTION 6. RULE 15C2-12 UNDERTAKING ..................................................................11
SECTION 7. REDEMPTION PROVISIONS .......................................................................16
SECTION 8. NEGOTIATED SALE ...................................................................................19
SECTION 9. APPOINTMENT OF UNDERWRITER .........................................................19
SECTION 10. PARAMETERS FOR THE SALE OF THE BONDS .....................................20
SECTION 11. PRELIMINARY AND OFFICIAL STATEMENT .........................................21
SECTION 12. PAYING AGENT AND REGISTRAR ...........................................................22
SECTION 13. BOOK ENTRY BONDS .................................................................................22
SECTION 14. BOND INSURANCE POLICY AND RESERVE POLICY ...........................22
SECTION 15. FINANCIAL GUARANTY AGREEMENT ...................................................23
SECTION 16. AMENDMENTS AND SUPPLEMENTS TO ORIGINAL RESOLUTION..23
SECTION 17. PAYMENT PROCEDURES UNDER THE BOND INSURANCE POLICY 24
SECTION 18. SEVERABILITY OF INVALID PROVISIONS .............................................29
SECTION 19. FURTHER AUTHORIZATIONS; RATIFICATION OF PR FOR a CTS .......30
30
SECTION 20. REPEALER .....................................................................................................
SECTION 21. EFFECTIVE DATE .........................................................................................30
Resolution No. R-21-07
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RESOLUTION NO. R 21-07
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
DELRAY BEACH, FLORIDA, AUTHORIZING THE NEGOTIATED
SALE OF CITY OF DELRAY BEACH, FLORIDA, UTILITIES TAX
REVENUE BONDS, SERIES 2007 (THE "BONDS"), IN THE INITIAL
AGGREGATE PRINCIPAL AMOUNT OF NOT EXCEEDING $27,000,000
FOR THE PURPOSE OF FINANCING AND REFINANCING CERTAIN
MUNICIPAL PROJECTS WITHIN THE CITY; AMENDING
RESOLUTION NO. R-98-91 (THE "ORIGINAL RESOLUTION") TO
PROVIDE FOR THE PLEDGE OF THE CITY'S COMMUNICATIONS
SERVICES TAX FOR ALL BONDS ISSUED UNDER THE ORIGINAL
RESOLUTION; DETERMINING CERTAIN DETAILS OF THE BONDS;
APPOINTING AN UNDERWRITER; PROVIDING FOR THE
APPLICATION OF THE BOND PROCEEDS; APPROVING THE FORM
OF, AND AUTHORIZING THE EXECUTION AND DELIVERY OF A
BOND PURCHASE AGREEMENT TO EFFECT THE NEGOTIATED
SALE OF THE BONDS AND SETTING THE PARAMETERS BY WHICH
THE MAYOR OR VICE MAYOR SHALL BE AUTHORIZED TO
EXECUTE AND DELIVER THE BOND PURCHASE AGREEMENT;
APPOINTING A PAYING AGENT AND BOND REGISTRAR;
AUTHORIZING THE REGISTRATION OF THE BONDS UNDER A
BOOK-ENTRY SYSTEM; APPROVING THE FORM OF AND
AUTHORIZING THE EXECUTION AND DELIVERY OF AN OFFICIAL
STATEMENT IN CONNECTION WITH THE OFFERING AND SALE OF
THE BONDS AND AUTHORIZING THE DISTRIBUTION OF THE
PRELIMINARY OFFICIAL STATEMENT AND THE OFFICIAL
STATEMENT BY THE UNDERWRITER; APPROVING THE FORM OF
AND AUTHORIZING THE EXECUTION AND DELIVERY OF A
PAYING AGENT AND REGISTRAR AGREEMENT RELATING TO THE
BONDS; PROVIDING FOR A BOND INSURANCE POLICY FOR THE
BONDS PROVIDED BY MBIA INSURANCE CORPORATION AND
AUTHORIZING AND AGREEING TO ANY NECESSARY
SUPPLEMENTS OR AMENDMENTS TO THE ORIGINAL
RESOLUTION IN CONNECTION THEREWITH; IF APPLICABLE,
APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION
AND DELIVERY OF A FINANCIAL GUARANTY AGREEMENT IN
CONNECTION WITH THE ISSUANCE OF A SURETY BOND BY MBIA
INSURANCE CORPORATION; PROVIDING FOR THE UNDERTAKING
BY THE CITY REGARDING SECONDARY MARKET DISCLOSURE AS
REQUIRED BY RULE 15c2-12 OF THE SECURITIES AND EXCHANGE
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COMMISSION; AUTHORIZING THE PROPER OFFICERS OF THE
CITY TO DO ALL OTHER THINGS DEEMED NECESSARY OR
ADVISABLE AS TO THE SALE AND DELIVERY OF THE BONDS; AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City Commission (the "Commission") or ~~:~r ~ City of Delray
Beach, Florida (the "City") did, on December 3, 1991, adopt Resolution No. 98-91, as amended
and supplemented (herein, the "Original Resolution', for the purpose, among other things, of
authorizing the issuance from time to time of Utilities Tax Revenue Bonds to finance and
refinance municipal projects; and
WHEREAS, any term not otherwise defined in this Resolution shall have the
meaning ascribed to such term in the Bond Resolution (as defined below); and
WHEREAS, on the date of adoption of this Resolution, the City has now
outstanding its Utilities Tax Revenue Refunding Bonds, Series 2002 in the aggregate principal
amount of $6,730,000 (herein, the "2002 Bonds") issued pursuant to the terms and provisions of
the Original Resolution and Resolution No. R-90-02 (the "2002 Resolution"); and
WHEREAS, pursuant to the terms and provisions of the 2002 Resolution, the
Original Resolution was amended and supplemented in certain respects (the Original Resolution,
as amended and supplemented by the 2002 Resolution is herein referred to as the "Bond
Resolution"); and
WHEREAS, pursuant to the terms and provisions of the Bond Resolution, the
2002 Bonds and other Bonds issued pursuant to Article III, Section 4.G. of the Original
Resolution are secured by a pledge of the City's Utilities Tax which is defined to include the tax
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imposed by the City on each and every purchase in the City of electricity, and metered and
bottled gas (natural liquefied petroleum gas or manufactured); and
WHEREAS, effective October 1, 2001, the Legislature of the State of Florida (i)
repealed the authorization for the levy by municipalities, including the City, of the public service
tax on telecommunications services, and (ii) instead, authorized the implementation of a
communications services tax pursuant to the provisions of Chapter 202, Florida Statute, as
amended and supplemented (herein, the "Communications Services Tax"); and
WHEREAS, the Commission hereby determines it would be in the best economic
interest of the City to amend the definition of Utilities Tax to include the portion of the
Communications Services Tax received by the City each month, so that the 2002 Bonds, the
Bonds (as defined below) and any other bonds issued under Article III, Section 4.G of the
Original Resolution shall also be secured by such tax; and
WHEREAS, pursuant to Article III, Section 4.G of the Original Resolution, the
Commission hereby determines it to be in the best economic interest of the City to finance and
refinance certain municipal projects more particularly described on Exhibit A attached hereto
(the "2007 Projects") through the issuance of its not to exceed $27,000,000 in initial aggregate
principal amount of Utilities Tax Revenue Bonds, Series 2007 (herein, the "Bonds"); and
WHEREAS, effective July 3, 1995, Rule 15c2-12 of the Securities and Exchange
Commission (the "Rule"), provides that it is unlawful for a broker dealer or municipal securities
dealer to purchase or sell municipal securities, which includes the Bonds, unless the issuer,
which includes the City, has undertaken in a written agreement (herein, the "Undertaking") to
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provide to specified information repositories annual financial information and operating data
relevant to the municipal securities and notice of certain specified material events; and
WHEREAS, the Commission hereby determines to provide its Undertaking with
respect to the Bonds in this Resolution; and
WHEREAS, subject to the terms and conditions of this Resolution, the City will
enter into a Bond Purchase Agreement with Bear, Stearns & Co. Inc., hereby designated by the
Commission to be the underwriter of the Bonds (herein the "Underwriter"), setting forth the
terms and conditions of the City's agreement to sell and the Underwriter's agreement to purchase
the Bonds, in substantially the form attached hereto as Exhibit B (herein, the "Purchase
Contract"); and
WHEREAS, based upon current market conditions, the complex nature of the
financing, the need to issue the Bonds upon the most favorable market conditions and the advice
of the City's financial advisor, the Commission hereby finds it is necessary and advisable to
negotiate the sale of the Bonds; and
WHEREAS, the Commission hereby determines that it is in the best interest of
the City to accept the Purchase Contract and to award the Bonds to the Underwriter pursuant to a
negotiated sale and pursuant to the parameters set forth in Section 10 herein; and
WHEREAS, the City will be, prior to the execution of the Purchase Contract,
provided by the Underwriter with the disclosure statements required by Section 218.385, Florida
Statutes, a copy of which is attached as an exhibit to the Purchase Contract; and
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WHEREAS, there have been also prepared and submitted to the Commission a
draft Preliminary Official Statement, attached hereto as Exhibit C.
WHEREAS, the City's financial advisor has recommended in a letter, attached
hereto as Exhibit D, that the principal and interest on the Bonds be insured by a financial
guaranty insurance policy (the "Bond Insurance Policy") to be issued by MBIA Insurance
Corporation (the "Bond Insurer") pursuant to the terms and provisions of the commitment of
such Bond Insurer to provide the Bond Insurance Policy attached hereto as Exhibit E (herein, the
"Commitment") and that, subject to the final pricing of the Bonds, in lieu of any required
deposits into the Debt Service Reserve Account for the Bonds, a Reserve Account Credit Facility
Substitute, in the form of a surety bond to be issued by the Bond Insurer (herein, the "Reserve
Policy") will be provided with the coverage which will be equal to the Debt Service Reserve
Requirement for the Bonds as evidenced by the Commitment; and
WHEREAS, the Commission has been advised that as a condition for the City to
receive the Reserve Policy from the Bond Insurer, it is necessary for the City to enter into a
reimbursement agreement with the Bond Insurer (herein, the "Financial Guaranty Agreement"),
the form of which is attached hereto as Exhibit F; and
WHEREAS, the Commission hereby adopts the recommendations of the City's
financial advisor regarding the Bond Insurance Policy and, subject to final pricing of the Bonds,
the Reserve Policy; and
WHEREAS, as a condition of obtaining the Bond Insurance Policy and Reserve
Policy, if any, for the Bonds, the Commission has been advised that it is necessary to amend
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and/or supplement the Bond Resolution and the Commission hereby determines that agreeing to
any such amendments and/or supplements is in the best interest of the City.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION
OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS:
SECTION 1. DEFINITIONS. That, except as provided below, all capitalized terms
used in this Resolution not otherwise defined shall have the meanings ascribed to such terms in
the Bond Resolution, unless the context clearly indicates otherwise.
A. "Beneficial Owner" shall mean, for purposes of Section 6 of this
Resolution only, any person which (i) has the power, directly or indirectly, to vote or consent
with respect to, or to dispose of ownership of, any Bonds (including persons holding Bonds
through nominees, depositories or other intermediaries), or (ii) is treated as the owner of any
Bonds for federal income tax purposes.
B. "Communications Services Tax" shall mean the tax the City receives on
communication services pursuant to the provisions of the Communications Services Tax
Simplification Law codified as Chapter 202, Florida Statutes, as amended and supplemented.
C. "NRMSIR" shall mean each nationally recognized municipal securities
information repository designated from time to time by the SEC in accordance with the Rule. A
list of the names and addresses of all designated NRMSIRs and any SID (as herein defined) as of
any date may currently be obtained by calling the SEC's Fax on Demand Service from a fax
machine at (202) 942-8088 and requesting document numbers 0206 and 0207, respectively, or by
visiting the SEC's web site at "http://www.sec.gov/info/municipal/nrmsir.htm."
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D. "Tax Certificate" shall mean the Arbitrage Certificate executed by the City
on the date of initial issuance and delivery of the Bonds, as such Tax Certificate maybe amended
from time to time, a source of guidance for achieving compliance with the Code.
E. "Utilities Tax" shall mean the tax imposed by the City on each and every
purchase in the City of electricity, metered and bottled gas (natural liquefied petroleum gas or
manufactured) and the Communications Services Tax. Said term shall also apply to all taxes
imposed by the City on the purchase of utility services other than water and communication
services, whether levied in the amounts prescribed by the Utilities Tax Ordinance or in any other
amounts and whether imposed on the purchase of the same utilities services or any other or
additional utilities services, by amendment to the Utilities Tax Ordinance or such other
resolution or ordinance of the City. This definition shall be applicable to the Bonds and all
passu additional bonds issued pursuant to Article III, Section 4.G of the Original Resolution.
SECTION 2. AUTHORIZATION, PURPOSE AND BOND DESIGNATION.
That the City hereby determines at this time (i) to issue not exceeding $27,000,000 in the initial
aggregate principal amount of its Bonds for the purpose of (a) financing and refinancing certain
municipal projects within the City as more particulazly described on Exhibit A attached hereto
(the "2007 Projects"), (b) to pay the costs of issuance of the Bonds, including paying the
premium for the Bond Insurance Policy and, if applicable, the Reserve Policy, and (ii) to
designate such Bonds as its "Utilities Tax Revenue Bonds, Series 2007" (herein, the "Bonds").
SECTION 3. TERMS AND DETAILS OF BONDS. The terms and details of the
Bonds, including but not limited to the principal amounts, interest rates, maturity dates and
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redemption provisions, shall be determined by the Mayor or Vice Mayor in accordance with the
parameters set forth in Section 10 herein. The form of the Bonds shall be substantially in the
form set forth in the Original Resolution with such variations as are necessary to conform to the
final terms of the Bonds.
SECTION 4. APPLICATION OF BOND PROCEEDS. All moneys received by
the City from the sale of the Bonds originally authorized and issued pursuant to this Resolution,
shall be disbursed as follows:
A. The accrued interest, if any, derived from the sale of the Bonds, shall be
deposited into the Interest Account, created and established under the Bond Resolution and
continued hereunder, and used for the purpose of paying interest on the Bonds, as the same
becomes due and payable.
B. There is hereby created and established in the Acquisition/Construction
Fund created and established under the Original Resolution, a separate line item to be known as
the "2007 Cost of Issuance Cost Center," into which shall be deposited an amount of the
proceeds of the Bonds sufficient to pay the costs of issuance of the Bonds, including, but not
limited to, payment of the premium for the Bond Insurance Policy and, if applicable, the
payment of the premium for the Reserve Policy. The City is hereby authorized to permit the
Underwriter to pay directly to the Bond Insurer, from the net proceeds of the Bonds, the cost of
the Bond Insurance Policy and Reserve Policy, if any. If, for any reason, any of the moneys
allocated to the 2007 Cost of Issuance Cost Center, are not necessary for or are not applied to
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pay the costs of issuing the Bonds, then such surplus proceeds shall be deposited into the
Acquisition/Construction Fund to be used to finance the 2007 Projects.
C. Unless, upon the advice of the City's financial advisor, the Debt Service
Reserve Requirement shall be satisfied with a Reserve Account Credit Facility Substitute in the
form of the Reserve Policy, from the proceeds of the Bonds there shall be deposited in the Debt
Service Reserve Account in the Sinking Fund, ` an amount equal to the Debt Service Reserve
Requirement for the Bonds, which requirement shall be'determined at the-time of the award of
the Bonds.
D. The balance of the proceeds derived from the sale of the Bonds shall be
deposited into the Acquisition/Construction Fund created and established under the Original
Resolution. If, for any reason, the moneys in the Acquisition/Construction Fund, or any part
thereof, are not necessary for or are not applied to the purposes of the 2007 Projects, then such
surplus proceeds shall be deposited, upon certification of the City Manager, other than amounts
allocated to the 2007 Cost of Issuance Cost Center, that such surplus proceeds are not needed for
the purposes of the Acquisition/Construction Fund, in the following order:
First, to the Debt Service Reserve Account in the Sinking Fund created and
established for the Bonds, to the full extent necessary, either to reinstate the Reserve Account
Credit Facility Substitute on deposit therein relating to the Bonds, or, to deposit additional
moneys so that such deposit, together with such moneys akeady on deposit therein, equal the
Debt Service Reserve Requirement for the Bonds;
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Second, to the Interest Account, Principal Account or Bond Redemption Account
in the amounts, if any, determined by subsequent proceedings of the Commission; and
Third, the balance, if any, to be used by the City for any capital project of the
City.
The moneys deposited in the Acquisition/Construction Fund may, pending their
use for the purposes provided in this Resolution, be temporarily invested in Permitted
Investments maturing not later than the dates on which such moneys will be needed for the
purposes of the Acquisition/Construction Fund. Subject to the provisions of the Code and the
Tax Certificate, all the earnings and investment income from such investments shall remain in
and become a part of said Acquisition/Construction Fund and be used for the purposes of the
Acquisition/Construction Fund.
Any moneys received by the City from the State or from Palm Beach County,
Florida (the "County"), or from the United States of America or any agencies thereof for the
purpose of financing any of the 2007 Projects, may be deposited in the Acquisition/Construction
Fund and used in the same manner as other Bond proceeds are used therein; provided, however,
that such moneys shall not be so deposited in the event and to the extent that the City has
incurred debt in anticipation of the receipt of such moneys; and provided further, that separate
accounts may be established in the Acquisition/Construction Fund for moneys received pursuant
to the provisions of this paragraph whenever required by Federal or State or County regulations.
The proceeds of the sale of the Bonds shall be and constitute trust funds for the
purposes hereinabove provided, and there is hereby created a lien upon such moneys, until so
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applied, in favor of the Holders of the Bonds, except that the lien on the moneys or securities or
any moneys derived from any Reserve Account Credit Facility Substitute on deposit in a Debt
Service Reserve Account, created and established under the Original Resolution for the Bonds,
shall only be for the benefit of the Bonds.
SECTION 5. COVENANTS OF THE CITY. Except as provided herein, the Bonds
authorized by this Resolution shall be deemed to have been issued pursuant to the Bond
Resolution (to which this Resolution is supplemental) and all of the covenants and agreements
contained in the Bond Resolution shall be deemed to have been made for the benefit of the
Owners of the Bonds issued pursuant to this Resolution.
The Sinking Fund, the Principal Account, the Interest Account, the Bond
Redemption Account therein and each Debt Service Reserve Account, all created and established
under the Original Resolution, shall be continued and maintained as provided in the Original
Resolution as long as any of the Bonds, issued pursuant to the terms and provisions of the Bond
Resolution and this Resolution, are Outstanding.
SECTION 6. RULE 15C2-12 UNDERTAHING. That in order to assist the initial
purchasers of the Bonds with respect to compliance with the Rule, the City undertakes and
agrees to provide the information described below to the persons so indicated. The City's
Undertaking set forth in this Section 6 shall be for the benefit of the registered owners and
Beneficial Owners of the Bonds.
A. The City undertakes and agrees to provide to each NRMSIR and to the
State of Florida information depository (herein, the "SID") if and when such a SID is created (i)
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the City's general purpose financial statements generally consistent with the financial statements
presented in Appendix B to the official statement relating to the Bonds (herein the "Official
Statement"), and (ii) the information concerning the Utilities Tax collections within the City with
respect to the Communications Services Tax, and with respect to electricity, gas and fuel oil, the
Utilities Tax rate or rates, exemptions from the Utilities Tax and amendments to the Utilities Tax
Ordinance generally consistent with the information set forth in the Official Statement under the
heading "UTILITIES TAXES." The information referred to in clauses (i) and (ii) is herein
collectively referred to as the "Annual Information."
B. The Annual Information described in clause (i) of paragraph A above in
audited form (for as long as the City provides such financial information in audited form) is
expected to be available on or before March 31 of each year for the Fiscal Year ending on the
preceding September 30, commencing March 31, 2008 for the Fiscal Year ending on the
preceding September 30, 2007. The Annual Information referred to in clause (i) of paragraph A
above in unaudited form (if the audited financial statements are not available or if the City no
longer provides such financial information in audited form) will be available on or before
March 31 for the Fiscal Year ending on the preceding September 30. The City also agrees to
provide the Annual Information to each registered owner and Beneficial Owner of the Bonds
who requests such information and pays to the City its costs of reproduction and transmission of
such Annual Information. The City agrees to provide to each NRMSIR and the SID, if any,
timely notice of its failure to provide the Annual Information. Such notice shall also indicate the
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reason for such failure and when the City reasonably expects such Annual Information will be
available.
C. The Annual Information referred to in clause (i) of paragraph A above and
presented as an appendix to the Official Statement has been prepared in accordance with
governmental accounting standards promulgated by the Government Accounting Standards
Board, as in effect from time to time, as such principles are modified by generally accepted
accounting principles, promulgated by the Financial Accounting Standards Board, as in effect
from time to time, and such other State mandated accounting principles as in effect from time
to time.
D. If, as authorized by paragraph F below, the City's undertaking with
respect to paragraph C above requires amending, the City undertakes and agrees that the Annual
Information described in clause (i) of paragraph A above for the Fiscal Year in which the
amendment is made will, to the extent possible, present a comparison between the Annual
Information prepared on the basis of the new accounting principles and the Annual Information
prepared on the basis of the accounting principles described in paragraph C above. The City
agrees that such a comparison will, to the extent possible, include a qualitative discussion of the
differences in the accounting principles and the impact of the change on the presentation of the
Annual Information.
E. The City undertakes and agrees to provide, in a timely manner, to each
NRMSIR or to the Municipal Securities Rulemaking Board and to the SID, if any, notice of the
occurrence of any of the following events with respect to the Bonds, if material:
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(1) principal and interest payment delinquencies;
(2) non-payment related defaults;
(3) unscheduled draws on any reserve account reflecting financial
difficulties;
(4) unscheduled draws on credit enhancements reflecting financial
difficulties;
(5) substitution of credit or liquidity providers, or their failure to
perform;
(6) adverse tax opinions or events affecting the tax-exempt status of
the Bonds;
(7) modifications to rights of Bondholders;
(8) Bond calls (other than scheduled mandatory sinking fund
redemptions);
(9) defeasance of the Bonds;
(10) release, substitution, or sale of property securing repayment of the
Bonds;
(11) rating changes; and
(12) any failure to comply with the provisions of this Section 6, which
in all cases, such failure will be deemed material.
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Notwithstanding the foregoing, notice of the events described in clauses (8) and
(9) above need not be given any earlier than the time notice is required to be given to the
registered owners of the Bonds.
F. Notwithstanding any other ,provision of this Resolution or the Bond
Resolution to the contrary regarding amendments or supplements, the City undertakes and agrees
to amend and/or supplement this Section 6 (including the amendments referred to in paragraph D
above) only if:
(1) The amendment or supplement is made only in connection with a
change in circumstances existing at the time the Bonds were
originally issued that arises from (i) a change in law, (ii) SEC
pronouncements or interpretations, (iii) a judicial decision
affecting the Rule or (iv) a change in the nature of the City's
operations or the activities that generate the Utilities Taxes.
(2) The City's Undertaking, as amended, would have complied with
the requirements of the Rule at the time the Bonds were originally
issued after taking into account any amendments or interpretations
of the Rule, as well as any change in circumstances; and
(3) The amendment or supplement does not materially impair the
interests of the registered owners and Beneficial Owners of the
Bonds as determined by Bond Counsel or by a majority of the
registered owners of the Bonds.
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In the event of an amendment or supplement under this Section 6, the City shall
describe the same in the next report of Annual Information and shall include, as applicable, a
narrative explanation of the reason for the amendment or supplement and its impact, if any, on
the financial information and operating data being presented in the Annual Information.
G. The City's Undertaking as set forth in this Section 6 shall terminate if and
when the Bonds are paid or deemed paid within the meaning of this Resolution.
H. The City acknowledges that its Undertaking pursuant to the Rule set forth
in this Section 6 is intended to be for the benefit of the registered holders and Beneficial Owners
of the Bonds and shall be enforceable by such holders and Beneficial Owners; provided that, the
holder's and Beneficial Owners' right to enforce the provisions of this Undertaking shall be
limited to a right to obtain specific enforcement of the City's obligations hereunder, and any
failure by the City to comply with the provisions of this Undertaking shall not be or constitute a
covenant or monetary default with respect to the Bonds under this Resolution or the Bond
Resolution.
I. The City reserves the right to satisfy its obligations under this Section 6
through agents; and the City may appoint such agents without the necessity of amending this
Resolution. The City may also appoint one or more employees of the City to monitor and be
responsible for the City's Undertaking hereunder.
SECTION 7. REDEMPTION PROVISIONS. The Bonds maturing on June 1, 2018
and thereafter are subject to redemption at the option of the City prior to maturity on or after
June 1, 2017, in whole at any time or in part from time to time on the first day of any month in
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such manner as shall be determined by the City, at a redemption price equal to the principal
amount of the Bonds to be redeemed, together with accrued interest to the date fixed for
redemption.
Notwithstanding the foregoing, if the Underwriter, upon consultation with the Finance
Director, determines that market conditions require different or no optional redemption
provisions for the Bonds or for certain maturities of the Bonds, such different optional
redemption provisions or the exclusion of certain or all maturities of the Bonds from such
optional redemption provisions will be deemed approved by the Commission without the need of
further proceedings so long as the maximum redemption premium does not exceed 1 % and the
first optional redemption period is not more than eleven (11) years from the date of issuance of
the Bonds.
If less than all of the Bonds are called for redemption, the Bonds to be redeemed shall be
selected in such manner as the City, in its discretion, shall determine, and if less than all of a
maturity shall be called for redemption, the Bonds to be redeemed shall be selected by lot within
such maturity.
Notice of redemption of the Bonds shall be mailed, postage prepaid, by the Bond
Registrar (herein defined) at least thirty (30) and not more than sixty (60) days before the date
fixed for redemption to the registered owners of any of the Bonds or portions of the Bonds which
are to be redeemed, at their addresses as they appear fifteen (15) days prior to the date such
notice is mailed on the registration books of the City kept by the Bond Registrar.
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The Bond Registraz also shall mail (by certified mail, return receipt requested) a copy of
such notice for receipt not less than the second business day prior to the date notice of
redemption is mailed to the Bondholders to the following (or the most current address): The
Depository Trust Company, 711 Stewart Avenue, Garden City, New York 11530; provided,
however, that such mailing shall not be a condition precedent to such redemption and failure to
mail any such notice shall not affect the validity of any proceedings for the redemption of the
Bonds. The Bond Registraz shall also provide notice, at the same time notice of redemption is
given to the Bondholders, to Kenny Information Systems Notification Service, 65 Broadway,
16th Floor, New York, New York 10006, and Standazd & Poor's Called Bond Record, 25
Broadway, New York, New York 10004 (or the most current address); provided, however, that
such mailing shall not be a condition precedent to such redemption and failure to mail any such
notice shall not affect the validity of any proceedings for the redemption of the Bonds.
A second notice of redemption shall be given sixty (60) days after the redemption date in
the manner required above to the registered owners of redeemed Bonds which have not been
presented for payment within thirty (30) days after the redemption date.
Such notice of redemption shall set forth (i) the date fixed for redemption, (ii) the
redemption price to be paid, (iii) the name and address of the Bond Registrar, (iv) if less than all
of the Bonds shall be called for redemption, the distinctive numbers, letters and CUSIP
identification numbers, if any, of such Bonds to be redeemed, (v) in the case of Bonds to be
redeemed in part only, the portion of the principal amount thereof to be redeemed, and (vi) any
other information the City or the Bond Registrar deems relevant. Subject to the rules of the
18 Resolution No. R-21-07
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Securities Depository, in case any Bond is to be redeemed in part only, the notice of redemption
that relates to such Bond shall state also that on or after the redemption date, upon surrender of
the Bond, a new Bond or Bonds of the same maturity, bearing interest at the same rate and in
aggregate principal amount equal to the unredeemed portion of such Bond, will be issued.
Failure of the registered owner of any Bonds which are to be redeemed to receive any such
notice shall not affect the validity of the proceedings for the redemption of Bonds for which
proper notice has been given. Interest shall cease to accrue on any of the Bonds duly called for
prior redemption if payment of the redemption price has been duly made or provided for.
Notwithstanding any of the foregoing, no notice of redemption that relates to the Bonds
shall be given unless there are sufficient moneys for such redemption on deposit in the Principal
Account, Interest Account or Bond Redemption Account, as applicable, of the Sinking Fund or
unless such redemption shall be paid for with the proceeds of refunding Bonds or from amounts
provided by the Bond Insurer in its sole discretion.
SECTION 8. NEGOTIATED SALE. That the City hereby finds that, due to the
complicated nature of the financing, volatile market conditions, the need to issue the Bonds upon
the most favorable market conditions and the advice of its financial advisor, it would be in the
best interest of the City that the Bonds be sold on a negotiated basis.
SECTION 9. APPOINTMENT OF UNDERWRITER. That the City hereby
appoints Bear, Stearns & Co. Inc. as the Underwriter of the Bonds pursuant to the terms and
provisions of the Purchase Contract.
19 Resolution No. R-21-07
WPB/381649602v 16016787.011900
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SECTION 10. PARAMETERS FOR THE SALE OF THE BONDS. That the
proposal submitted by the Underwriter offering to purchase the Bonds at a purchase price for the
Bonds established pursuant to the parameters set forth below and on the terms and conditions set
forth in the Purchase Contract (substantially in the form attached hereto as Exhibit B), is hereby
approved and adopted by the City. Subject to the last sentence of this Section 10, the Mayor (or,
in her absence, the Vice Mayor) is hereby authorized to execute and deliver on behalf of the
City, and the City Clerk is hereby authorized (if so required) to affix the Seal of the City and
attest to the execution of, the Purchase Contract in substantially the form presented at this
meeting. The disclosure statements of the Underwriter, as required by Section 218.385 of the
Florida Statutes, to be delivered to the City prior to the execution of the Purchase Contract, a
form of which is attached as an exhibit to the Purchase Contract, will be entered into the official
records of the City as part of the Purchase Contract. The Purchase Contract, when in final form
as determined by the City Attorney and Bond Counsel, may be executed by the City without
further action of the City, provided the Underwriter confirms in writing to the Finance Director,
or in his absence, the Treasurer of the City that (i) the true interest cost on the Bonds does not
exceed five and one half percent (5.50%) per annum, (ii) the underwriting discount (exclusive of
any original issue discount or original issue premium) is not greater than $6.00 per $1,000 of the
original principal amount of the Bonds, (iii) the initial principal amount of Bonds sold thereunder
does not exceed the principal amount authorized under this Resolution, (iv) the final maturity of
the Bonds does not extend beyond June 1, 2032, and (v) the Bonds shall have the optional
redemption provisions set forth in Section 7 hereof.
20 Resolution No. R-21-07
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The final terms and provisions of the Bonds shall be reflected in the Official
Statement and such document shall be affixed as an exhibit to this Resolution and entered into
the records of the Commission.
SECTION 11. PRELIMINARY AND OFFICIAL STATEMENT. That the form of
the Preliminary Official Statement in substantially the form attached hereto as Exhibit C with
such changes as shall be approved by the Mayor or the City Manager and the City's Bond
Counsel, be and the same is hereby approved, and the Commission hereby approves the use of
the final printed Official Statement by the Underwriter in connection with the offering and sale
of the Bonds in substantially the same form as the attached Preliminary Official Statement. The
Commission hereby further approves the use by the Underwriter of any supplement or
amendment to the Official Statement which is necessary so that the Official Statement does not
include any untrue statement of a material fact and does not omit to state any material fact
necessary to make the statements therein not misleading. The Mayor (or, in her absence, the
Vice Mayor) is each hereby authorized and directed to execute the Official Statement and any
amendment or supplement thereto, in the name and on behalf of the City, and thereupon to cause
the Official Statement and any such amendment or supplement to be delivered to the Underwriter
with such approval to be conclusively evidenced by her execution and delivery thereof. The
Underwriter is hereby authorized to use the Preliminary Official Statement in connection with
the marketing of the Bonds. The Mayor, the Vice Mayor, the City Manager, the Director of
Finance and the Treasurer are each authorized to execute a certificate deeming the Preliminary
Official Statement "final" within the meaning of the Rule. Notwithstanding the foregoing, the
21 Resolution No. R-21-07
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Official Statement with respect to the Bonds shall not be executed prior to the date the Purchase
Contract is executed in the manner contemplated in Section 10 herein and the form thereof is
approved by Bond Counsel and the City Attorney.
SECTION 12. PAYING AGENT AND REGISTRAR. That Commerce Bank,
National Association (the "Bank") is hereby appointed as paying agent (the "Paying Agent") and
registraz (the "Registrar") for the Bonds. By the acceptance of such appointment, the Bank
agrees to comply with the terms of any paying agent and registrar agreement (that may be
required by the Bank), the Bond Resolution, this Resolution, and the Bond Insurance Policy and
the Reserve Policy, if any, applicable to it. The Paying Agent and Registraz agree to provide to
the Bond Insurer copies of all notices and reports relating to the City or the Bonds received by it
or which either is required to be sent to the City or the registered owners of the Bonds.
SECTION 13. BOOK ENTRY BONDS. That the Commission hereby determines
that the registration of the Bonds be by the Book Entry System of registration.
SECTION 14. BOND INSURANCE POLICY AND RESERVE POLICY. That,
based on the recommendations of the City's financial advisor, set forth in a letter attached hereto
as Exhibit D with respect to the Bonds, the Commission finds that obtaining the Bond Insurance
Policy and Reserve Policy, if applicable, from the Bond Insurer is in the best interests of the
City, and the Commission hereby directs that the premium due on the Bond Insurance Policy and
the Reserve Policy, if applicable, be paid in accordance with the terms thereof. The City
covenants to comply with the terms and provisions of the Commitment to provide the Bond
22 Resolution No. R-21-07
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Insurance Policy and Reserve Policy and covenants to comply with the payment procedures with
respect to the Bond Insurance Policy.
SECTION 15. FINANCIAL GUARANTY AGREEMENT. That the form, terms
and provisions of the Financial Guaranty Agreement between the City and the Bond Insurer
substantially in the form attached hereto as Exhibit F, as submitted to this meeting, be and the
same are hereby approved and accepted. If the Reserve Policy is purchased by the City, the
Mayor of the City or, in her absence, the Vice Mayor, is hereby authorized and directed to
execute and deliver the Financial Guaranty Agreement on behalf of the City in substantially the
form submitted to this meeting, with such changes, insertions and deletions thereto as are
necessary or desirable for carrying out the purposes thereof as may be approved by the City
Attorney and Bond Counsel, the execution of said Financial Guaranty Agreement being
conclusive evidence of such approval.
SECTION 16. AMENDMENTS AND SUPPLEMENTS TO ORIGINAL
RESOLUTION. In addition to any definitional changes reflected in Section 1 hereof and
notwithstanding any other provision in the Original Resolution to the contrary, as a condition of
obtaining the Bond Insurance and Reserve Policy, if applicable, and for as long as the Bond
Insurer is not in default under the Bond Insurance Policy and/or Reserve Policy, if applicable, the
City covenants as follows: (i) not to issue >'~ passu additional Bonds pursuant to Article III,
Section 4.G. of the Original Resolution, that bear interest at a variable rate without the express
written consent of the Bond Insurer, (ii) not to optionally redeem the Bonds or use any portion of
the proceeds of the Utilities Tax for general municipal purposes if amounts are due and owing
23 Resolution No. R-21-07
WPB/381649602v1G/0f 6787.011900
i
the Bond Insurer under the Financial Guaranty Agreement, if applicable. In the event that the
City obtains more than one Reserve Account Credit Facility Substitute for the Bonds, one of
which is the Reserve Policy, the Paying Agent shall, if moneys are required therefrom, draw on
such Reserve Account Credit Facility Substitutes on a pro rata basis. At any time amounts on
deposit in the Debt Service Reserve Account are less than the Debt Service Reserve Requirement
and the Reserve Policy has been drawn on, the City covenants to apply the first available
proceeds of the Utilities Tax to reimburse the Bond Insurer thereby reinstating the Reserve
Policy prior to making any cash deposits to the Debt Service Reserve Account to cure such
deficiency. In addition, to the extent that the terms and provisions of the Commitment attached
hereto as Exhibit E are not reflected in the Original Resolution, the 2002 Resolution or this
Resolution, the City agrees to comply with such terms as if set forth herein.
SECTION 17. PAYMENT PROCEDURES UNDER THE BOND INSURANCE
POLICY.
A. In the event that on the second Business Day, and again on the Business
Day, prior to an Interest Payment Date, the Paying Agent has not received sufficient moneys to
pay all principal of and interest on the Bonds due on the second following or following, as the
case may be, Business Day, the Paying Agent shall immediately notify the Bond Insurer or its
designee on the same Business Day by telephone or telegraph, confirmed in writing by registered
or certified mail, of the amount of the deficiency.
B. If the deficiency is made up in whole or in part prior to or on the Interest
Payment Date, the Paying Agent shall so notify the Bond Insurer or its designee.
24 Resolution No. R-21-07
WPB/381649602vf6J016787.Of1900
i
C. In addition, if the Paying Agent has notice that any Bondholder has been
required to disgorge payments of principal or interest on the Bonds to a trustee in bankruptcy or
creditors or others pursuant to a final judgment by a court of competent jurisdiction that such
payment constitutes an avoidable preference to such Bondholder within the meaning of any
applicable bankruptcy laws, then the Paying Agent shall notify the Bond Insurer or its designee
of such fact by telephone or telegraphic notice, confirmed in writing by registered or certified
mail.
D. The Paying Agent is hereby irrevocably designated, appointed, directed
and authorized to act asattorney-in-fact for Holders of the Bonds as follows:
(1) If and to the extent there is a deficiency in amounts required to pay
interest on the Bonds, the Paying Agent shall (a) execute and
deliver to U.S. Bank Trust National Association, or its successors
under the Bond Insurance Policy (the "Insurance Paying Agent"),
in form satisfactory to the Insurance Paying Agent, an instrument
appointing the Bond Insurer as agent for such Holders in any legal
proceeding related to the payment of such interest and an
assignment to the Bond Insurer of the claims for interest to which
such deficiency relates and which are paid by the Bond Insurer, (b)
receive as designee of the respective Holders (and not as Paying
Agent) in accordance with the tenor of the Bond Insurance Policy
payment from the Insurance Paying Agent with respect to the
25 Resolution No. R-21-07
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claims for interest so assigned, and (c) disburse the same to such
respective Holders; and
(2) If and to the extent of a deficiency in amounts required to pay
principal of the Bonds, the Paying Agent shall (a) execute and
deliver to the Insurance Paying Agent in form satisfactory to the
Insurance Paying Agent an instrument appointing the Bond Insurer
as agent for such Holder in any legal proceeding relating to the
payment of such principal and an assignment to the Bond Insurer
of any of the Bonds surrendered to the Insurance Paying Agent of
so much of the principal amount thereof as has not previously been
paid or for which moneys aze not held by the Paying Agent and
available for such payment (but such assignment shall be delivered
only if payment from the Insurance Paying Agent is received), (b)
receive as designee of the respective Holders (and not as Paying
Agent) in accordance with the tenor of the Bond Insurance Policy
payment therefor from the Insurance Paying Agent, and (c)
disburse the same to such Holders.
E. Payments with respect to claims for interest on and principal of the Bonds
disbursed by the Paying Agent from proceeds of the Bond Insurance Policy shall not be
considered to dischazge the obligation of the City with respect to the Bonds, and the Bond
26 Resolution No. R-21-07
WPB~381649802v16/016787.011900
Insurer shall become the owner of such unpaid Bonds and claims for the interest in accordance
with the tenor of the assignment made to it under the provisions of this section or otherwise.
F. Irrespective of whether any such assignment is executed and delivered, the
City and the Paying Agent hereby agree for the benefit of the Bond Insurer that:
(1) It recognizes that to the extent the Bond Insurer makes payments,
directly or indirectly (as by paying through the Paying Agent), on
account of principal of or interest on the Bonds, the Bond Insurer
will be subrogated to the rights of such Holders to receive the
amount of such principal and interest from the City, with interest
thereon as provided and solely from the sources stated in this
Resolution, the Bond Resolution and the Bonds; and
(2) It will accordingly pay to the Bond Insurer the amount of such
principal and interest (including principal and interest recovered
under subparagraph (ii) of the first paragraph of the Bond
Insurance Policy, which principal and interest shall be deemed past
due and not to have been paid), with interest thereon as provided in
this Resolution, the Bond Resolution and the Bonds, but only from
the sources and in the manner provided herein for the payment of
principal of and interest on the Bonds to Holders, and will
otherwise treat the Bond Insurer as the owner of such rights to the
amount of such principal and interest.
27 Resolution No. R-21-07
WPB/381649602v16/016787.011900
i `
In connection with the issuance of additional pari passu Bonds, the City
shall deliver to the Bond Insurer a copy of the disclosure document, if any, circulated with
respect to such additional pari passu Bonds.
Copies of any amendments made to the documents executed in connection
with the issuance of the Bonds which are consented to the Bond Insurer shall be sent to Standard
& Poor's Corporation.
The Bond Insurer shall receive notice of the resignation or removal of the
Paying Agent and the appointment of a successor thereto.
The Bond Insurer shall receive copies of all notices required to be
delivered to Bondholders and, on an annual basis, copies of the City's audited financial
statements and Annual Budget.
Notices: Any notice that is required to be given to a holder of the Bonds or to the Paying
Agent pursuant to this Resolution shall also be provided to the Bond Insurer. All notices
required to be given to the Bond Insurer under this Resolution shall be in writing and shall be
sent by registered or certified mail addressed to MBIA Insurance Corporation, 113 King Street,
Armonk, New York 10504 Attention: Surveillance.
unconditionally upon demand, to the extent permitted by law, for all reasonable expenses,
including attorneys' fees and expenses, incurred by the Bond Insurer in connection with (i) the
enforcement by the Bond Insurer of the City's obligations, or the preservation or defense of any
rights of the Bond Insurer, under this Resolution and any other document executed in connection
Resolution No. R-21-07
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with the issuance of the Bonds, and (ii) any consent, amendment, waiver or other action with
respect to this Resolution or any related document whether or not granted or approved, together
with interest on all such expenses from and including the date incurred to the date of payment at
Citibank's Prime Rate plus 3% or the maximum interest rate permitted by law, whichever is less.
In addition, the Bond Insurer reserves the right to charge a fee in connection with its review of
any such consent, amendment or waiver, whether or not granted or approved.
L. The City agrees not to use the Bond Insurer's name in any public
document including, without limitation, a press release or presentation, announcement or forum
without the Bond Insurer's prior consent; provided however, such prohibition on the use of the
Bond Insurer's name shall not relate to the use of the Bond Insurer's standard approved form of
disclosure in public documents issued in connection with the Bonds to be issued in accordance
with the terms of the Commitment; and provided further such prohibition shall not apply to the
use of the Bond Insurer's name in order to comply with public notice, public meeting or public
reporting requirements.
M. The City shall not enter into any agreement nor shall it consent to or
participate in any arrangement pursuant to which Bonds are tendered or purchased for any
purpose (other than the redemption and cancellation or legal defeasance of such Bonds without
the prior written consent of the Bond Insurer).
SECTION 18. SEVERABILITY OF INVALID PROVISIONS. If any one or more
of the covenants, agreements or provisions of this Resolution should be held contrary to any
express provision of law or contrary to the policy of express law, though not expressly
29 Resolution No. R-21-07
WPQ/381649602v16/016787.011900
with the issuance of the Bonds, and (ii) any consent, amendment, waiver or other action with
respect to this Resolution or any related document whether or not granted or approved, together
with interest on all such expenses from and including the date incurred to the date of payment at
Citibank's Prime Rate plus 3% or the maximum interest rate permitted by law, whichever is less.
In addition, the Bond Insurer reserves the right to charge a fee in connection with its review of
any such consent, amendment or waiver, whether or not granted or approved.
L. The City agrees not to use the Bond Insurer's name in any public
document including, without limitation, a press release or presentation, announcement or forum
without the Bond Insurer's prior consent; provided however, such prohibition on the use of the
Bond Insurer's name shall not relate to the use of the Bond Insurer's standard approved form of
disclosure in public documents issued in connection with the Bonds to be issued in accordance
with the terms of the Commitment; and provided further such prohibition shall not apply to the
use of the Bond Insurer's name in order to comply with public notice, public meeting or public
reporting requirements.
M. The City shall not enter into any agreement nor shall it consent to or
participate in any arrangement pursuant to which Bonds are tendered or purchased for any
purpose (other than the redemption and cancellation or legal defeasance of such Bonds without
the prior written consent of the Bond Insurer).
SECTION 18. SEVERABILITY OF INVALID PROVISIONS. If any one or more
of the covenants, agreements or provisions of this Resolution should be held contrary to any
express provision of law or contrary to the policy of express law, though not expressly
29 Resolution No. R-21-07
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prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such
covenants, agreements or provisions shall be null and void and shall be deemed separate from the
remaining covenants, agreements or provisions, and shall in no way affect the validity of any of
the other provisions of this Resolution or of the Bonds.
SECTION 19. FURTHER AUTHORIZATIONS; RATIFICATION OF PRIOR
ACTS. That the Mayor, the Vice Mayor, the City Manager, the Finance Director, the Treasurer,
the City Clerk, the City Attorney and any other authorized official of the City, be and each of
them is hereby authorized and directed to execute and deliver any and all documents and
instruments, including, but not limited to, any paying agent and registrar agreement, and to do
and cause to be done any and all acts and things necessary or proper for carrying out the
transactions contemplated by this Resolution, including, but not limited to, complying with any
conditions to obtain the Bond Insurance Policy or Reserve Policy. All actions heretofore taken
and documents prepared or executed by or on behalf of the City by any of its authorized officers
in connection with the transactions contemplated hereby, are hereby ratified, confirmed,
approved and adopted.
SECTION 20. REPEALER. That all resolutions or proceedings, or parts thereof, in
conflict with the provisions of this Resolution are to the extent of such conflict hereby repealed.
SECTION 21. EFFECTIVE
immediately upon its passage.
PASSED AND ADOPTED in regular session on this the 21st day of August,
30 Resolution No. R-21-07
WP6/381649602v16/016787.011900
CITY OF RAY BEACH, FLORIDA
By:
ayor
Attest:
• \ v~hJ
City Clerk
Date of Adoption: August 21, 2007
The foregoing Resolution is hereby
approved by me as to form, language and
executi is st day of August~2gQ7.
By:
Attorney
31 Resolution No. R-21-07
WPB/381649602v16/016787.011900
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City of Delray Beach, Florida
Utilities Tax Revenue Bonds, Series 2007
LIST OF EXHIBITS TO RESOLUTION NO. R 21-07
Exhibit A 2007 Projects
Exhibit B Draft Bond Purchase Agreement
Exhibit C Draft Preliminary Official Statement
Exhibit D Letter of Recommendation from Public Financial Management
Exhibit E Commitment for Bond Insurance and Reserve Policy from MBIA
Insurance Corporation
Exhibit F Form of Financial Guaranty Agreement
Resolution No. R-21-07
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i
EXHIBIT "A"
2007 Projects
Intracoastal Pazk and Ramp
Old School Squaze Pazking Garage and Improvements
ESD Building
Replacement of Fire Station #4
Miller Park Improvement
Pompey Park
Senior Center -Western Community Center
Senior Center -Western Community Center -Land Acquisition
Storm Retention Projects
Soccer Complex
Catherine Strong Park
Swim and Tennis Center
Neighborhood Pazks
And any other municipal capital project in addition to or in replacement of any of the foregoing.
Resolution No. R-21-07
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BOND PURCHASE AGREEMENT
September 7, 2007
$24,635,000
City of Delray Beach, Florida
Utilities Tax Revenue Bonds, Series 2007
The City Commission of the
City of Delray Beach, Florida
100 N.W. First Avenue
Delray Beach, Florida 33444
Ladies and Gentlemen:
Bear, Stearns & Co. Inc. (the "Underwriter") offers to enter into the following agreement
(the "Purchase Contract") with the City of Delray Beach, Florida (the "City"), which, upon your
acceptance of this offer, will be binding upon the City and upon the Underwriter. This offer is made
subject to your acceptance on or before 5:00 p.m., Eastern time, on the date hereof and if not so
accepted, will be subject to withdrawal by the Underwriter upon notice to the City at any time prior
to your acceptance hereof.
1. Purchase and Sale. Upon the terms and conditions and upon the basis of the
representations, warranties and agreements set forth herein, the Underwriter hereby agrees to
purchase from the City for offering to the public, and the City hereby agrees to sell and deliver to
the Underwriter for such purpose, all (but not less than all) of the City's $24,635,000 Utilities Tax
Revenue Bonds, Series 2007 (the "Series 2007 Bonds"). The Series 2007 Bonds shall be issued in
such principal amounts, shall mature on such dates and in such amounts, shall bear such rates of
interest, and shall be subject to optional and mandatory redemption prior to maturity, all as set forth
in Exhibit A attached hereto and incorporated herein by reference. Interest on the Series 2007
Bonds shall be payable on December 1, 2007, and on each June 1 and December 1 thereafter. The
aggregate purchase price of the Series 2007 Bonds is $25,296,011.73 (which takes into account a net
original issue premium of $792,485.80 and an Underwriter's discount of $131,474.07), which shall be
payable, subject to the terms and conditions hereof, on the Closing Date (as hereinafter defined).
The Series 2007 Bonds shall initially be offered to the public at such prices as indicated on Exhibit A
attached hereto. The Series 2007 Bonds are being issued pursuant to the Constitution and Laws of
the State of Florida, particularly, Chapter 166, Florida Statutes, as amended and supplemented, the
City Charter, as amended and supplemented, and other applicable provisions of law, and Resolution
No. 98-91 of the City duly adopted on December 3, 1991 (the "Original Resolution"), as amended
and supplemented by Resolution No. R-90-02, adopted on December 3, 2002 (the "2002
Resolution"), authorizing the issuance of the City's Utilities Tax Revenue Refunding Bonds, Series
2002 (the "Series 2002 Bonds"), as amended and supplemented by Resolution, No. R-21-07,
adopted by the Comnnission on August 21, 2007, authorizing the issuance of, and, pursuant to the
parameters therein, fixing the details of, the Series 2007 Bonds (the "2007 Resolution"). The
Original Resolution, the 2002 Resolution and the 2007 Resolution are collectively referred to herein
as the "Bond Resolution"). Any capitalized term used herein and not otherwise defined shall have
the meaning assigned to such term in the Bond Resolution. The Series 2007 Bonds are limited
obligations of the City, payable solely from and secured solely by a pledge of and first priority lien
on the Pledged Revenues, which consist of the proceeds of the City's Utilities Tax levied and
collected or received by the City and deposited in the Sinking Fund created and established pursuant
to the terms and provisions of the Bond Resolution (sometimes hereinafter referred to as the
"Pledged Revenues"). The Series 2007 Bonds are being issued on parity with the City's outstanding
Series 2002 Bonds.
The City is proposing to issue the Series 2007 Bonds to (i) finance and refinance
certain municipal projects within the City as more particularly described in the 2007 Resolution (the
"2007 Projects") and (ii) pay the costs of issuing the Series 2007 Bonds, including paying the
premiums for the financial guaranty insurance policy (the "Bond Insurance Policy") and a debt
service reserve fund surety bond (the "Reserve Policy"). The Series 2007 Bonds are being issued
as pari passu additional bonds (as defined in the Bond Resolution) pursuant to the provisions of the
Bond Resolution.
Concurrently with the execution and delivery of the Series 2007 Bonds, there are to
be executed and delivered, among other things: (a) the Financial Guaranty Agreement between the
City and MBIA Insurance Corporation (the "Insurer") (the "Guaranty Agreement"), and (b) the
Paying Agent/Registrar Agreement dated as of September 26, 2007 (the "Paying Agent/Registrar
Agreement") between the City and Commerce Bank, National Association, as registrar and paying
agent for the Series 2007 Bonds (the "Registrar and Paying Agent"). 'T'his Purchase Contract, the
Guaranty Agreement and the Paying Agent/Registrar Agreement are sometimes collectively referred
to herein as the "City Documents".
2. Good Faith Deposit; Underwriter's Liability. Delivered to you herewith, as a good
faith deposit, is a corporate check of the Underwriter payable to the order of the City in the amount
of $250,000.00 as security for the performance by the Underwriter of its obligation to accept and
pay for the Series 2007 Bonds at Closing (as defined below) in accordance with the provisions
hereof. In the event that you accept this offer, said check will be held uncashed by the City as a good
faith deposit. At the Closing, the check will be returned to the Underwriter. In the event you do not
accept this offer, the check shall be immediately returned to the Underwriter. If the Underwriter fails
(other than for a reason permitted hereunder) to accept and pay for the Series 2007 Bonds at the
Closing as provided herein, the check may be cashed by the City and the proceeds retained by the
City as full liquidated damages for the failure of the Underwriter to accept and pay for the Series
2007 Bonds at closing and for any and all defaults hereunder on the part of the Underwriter, and the
retention of such amounts shall constitute a full release and discharge of all claims and damages for
such failure and for any and all such defaults hereunder on the part of the Underwriter, it being
understood by both the City and the Underwriter that actual damages in such circumstances may be
difficult or impossible to compute.
In the event that the City fails to deliver the Series 2007 Bonds at the Closing, or if
the City is unable at or prior to the Closing Date to satisfy or cause to be satisfied the conditions to
the obligations of the Underwriter contained in this Purchase Contact, or if the obligations of the
Underwriter contained herein shall be cancelled or terminated for any reason permitted by this
Purchase Contract, the City shall be obligated to immediately return the check to the Underwriter
and such return shall constitute a full release and discharge of all claims by the City and the
Underwriter arising out of the transaction contemplated herein except for the respective obligations
of the City and the Underwriter set forth in Section 8 hereof.
2
3. Offering. The Underwriter agrees to make a public offering of the Series 2007 Bonds at
the initial offering prices set forth in Exhibit A attached hereto; provided, however, the Underwriter
reserves the right to make concessions to dealers and to change such initial offering prices as the
Underwriter shall deem necessary in connection with the marketing of the Series 2007 Bonds.
It shall be a condition of your obligation to sell and deliver the Series 2007 Bonds to the
Underwriter, and the obligation of the Underwriter to purchase and accept delivery of the Series
2007 Bonds, that the entire initial aggregate principal amount of the Series 2007 Bonds shall be sold
and delivered by you and accepted and paid for by the Underwriter at the Closing.
4. Preliminary Official Statement and Official Statement. The Ciry hereby confirms
that it has heretofore made available to the Underwriter a Preliminary Official Statement of the City
relating to the Series 2007 Bonds dated August 31, 2007 (which, together with the cover page and
appendices contained therein, is herein called the "Preliminary Official Statement"). Within seven
business days of the acceptance hereof by the Ciry, the City shall deliver to the Underwriter, at the
City's expense such reasonable number of conformed copies of the Official Statement (which,
together with the official cover page and appendices contained therein, is herein called the "Official
Statement', as the Underwriter shall reasonably request, which shall be sufficient in number to
permit the Underwriter to comply with paragraph (b)(4) of Rule 15c2-12 (the "Rule' of the
Securities and Exchange Commission ("SEC") under the Securities Exchange Act of 1934 and with
Rule G-32 and all other applicable rules of the Municipal Securities Rulemaking Board. The City, by
its acceptance hereof ratifies and approves the deeming final of the Preliminary Official Statement,
except for permitted omissions, as of its date and the distribution thereof by the Underwriter and
approves and authorizes the Underwriter to use the Official Statement in connection with the public
offering and the sale of the Series 2007 Bonds. The Ciry agrees to make no amendments to the
Official Statement without the prior written consent of the Underwriter, which consent shall not be
unreasonably withheld. In addition, the City will, pursuant to the Rule, undertake, pursuant to the
Bond Resolution, to provide certain annual financial and operating information and notices of the
occurrence of certain events, if material. A description of this undertaking is set forth in the
Preliminary Official Statement and will also be set forth in the final Official Statement.
In accordance with Section 218.385(6), Florida Statutes, the Underwriter hereby discloses the
required information as provided in Exhibit B attached hereto. In accordance with 218.385(2) and
(3), Florida Statutes, the Underwriter has delivered to the Ciry the Truth-in-Bonding statement,
which statement is attached hereto as Exhibit C.
5. Representations, Warranties and Agreements. The Ciry hereby represents, warrants
and agrees as follows:
a. As of the date of the Preliminary Official Statement and the date of this Purchase
Contract and at the time of Closing, the statements and information contained in the Preliminary
Official Statement and Official Statement are and will be true, correct and complete in all material
respects and the Preliminary Official Statement and Official Statement will not omit any statement
or information which should be included therein for the purposes for which the Preliminary Official
Statement and Official Statement are to be used or which is necessary to make the statements or
information contained therein, in light of the circumstances under which they were made, not
misleading (provided, however, that no representation or warranty is being provided with respect to
3
the Insurer, the Bond Insurance Policy, the Reserve Policy or the Depository Trust Company
("DTC'~ and its book-entry system).
b. Between the date of this Purchase Contract and the time of Closing, the City will
not execute any bonds, notes or obligations for borrowed money, other than the Series 2007 Bonds,
which pledge the Pledged Revenues, without giving prior written notice thereof to the Underwriter.
c. The City is, and will be at the Closing Date, duly organized and validly existing as
a municipal corporation of the State of Florida, with the powers and authority set forth in the Act
(as defined in the Bond Resolution).
d. The City has full legal right, power and authority to: (i) enter into the City
Documents, (ii) adopt the Bond Resolution, (iii) sell, issue and deliver the Series 2007 Bonds to the
Underwriter under the Act as provided herein, and (iv) carry out and consummate the transactions
contemplated by the City Documents, the Bond Resolution and the Official Statement, and the City
has complied, and at the Closing will be in compliance, in all respects, with the terms of the Act and
with the obligations on its part in connection with the issuance of the Series 2007 Bonds contained
in the Bond Resolution, the Series 2007 Bonds, and the City Documents.
e. By all necessary official action, the City has (i) duly adopted the Bond Resolution,
(ii) duly authorized and approved the Official Statement, and (iii) duly authorized and approved the
execution and delivery of, and the performance by the City of, the Series 2007 Bonds, the City
Documents, the Bond Resolution and all other obligations on its part in connection with the
issuance of the Series 2007 Bonds and the consummation by it of all other transactions
contemplated by the City Documents and the Official Statement in connection with the issuance of
the Series 2007 Bonds; and upon delivery of the Series 2007 Bonds at the Closing, the Bond
Resolution and the City Documents will, assuming the due authorization, execution and delivery of
the City Documents by the other parties thereto, constitute legal, valid and binding obligations of
the City, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency,
and similar laws affecting creditors' rights generally and subject, as to enforceability, to general
principles of equity.
f. When delivered to and paid for by the Underwriter at the Closing in accordance
with the provisions of this Purchase Contract, the Series 2007 Bonds shall be entitled to the benefits
of the Bond Resolution in accordance with the provisions of the Bond Resolution, subject to
bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights
generally and subject, as to enforceability, to general principles of equity.
g. To the best knowledge of the City, the adoption of the Bond Resolution and the
authorization, execution and delivery of the City Documents and the Series 2007 Bonds, and
compliance with the provisions hereof and thereof, will not conflict with, or constitute a material
breach of or default under any law, administrative regulation, consent decree, ordinance, resolution
or any agreement or other instrument to which the City was or is subject, as the case may be, nor, to
the best knowledge of the City, will such adoption, execution, delivery, authorization or compliance
result in the creation or imposition of any lien, charge or other security interest or encumbrance of
any nature whatsoever upon any of the property or assets of the City, or under the terms of any law,
administrative regulation, ordinance, resolution or instrument, except as expressly provided by the
Bond Resolution.
4
h. At the time of Closing, the City will be in compliance in all respects with the
covenants and agreements contained in the Bond Resolution and no event of default and no event
which, with the lapse of time or giving of notice, or both, would constitute an event of default under
the Bond Resolution, will have occurred or be continuing.
i. Except as provided in the Official Statement, all approvals, consents,
authorizations and orders of any governmental authority or agency having jurisdiction in any matter
which would constitute a condition precedent to the performance by the City of its obligations
hereunder and its obligations under the Bond Resolution have been obtained and are in full force
and effect, except that no representation is made with respect to compliance with any state blue sky
or other legal investment laws.
j. The City is lawfully empowered to pledge and grant a lien on the Pledged
Revenues for payment of the principal of and interest on the Series 2007 Bonds on parity with the
Series 2002 Bonds.
k. Except as expressly disclosed in the Official Statement, there is no action, suit,
proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency
or public board or body pending or, to the best knowledge of the City, threatened against the City,
affecting or seeking to prohibit, restrain or enjoin the sale, issuance or delivery of the Series 2007
Bonds or the collection of the Pledged Revenues or the pledge of and lien on the Pledged Revenues,
or contesting or affecting as to the City the validity or enforceability in any respect of the Series 2007
Bonds, the Bond Resolution, or the City Documents, or contesting the tax-exempt status of the
interest on the Series 2007 Bonds, or contesting the completeness or accuracy of the Official
Statement or any supplement or amendment thereto, or contesting the powers of the City or the
City Commission (the "Commission") or any authority for the issuance of the Series 2007 Bonds,
the adoption of the Bond Resolution or the execution and delivery by the City of the Series 2007
Bonds or the City Documents.
1. The City will furnish such information, execute such instruments and take such
other action in cooperation with the Underwriter as the Underwriter may reasonably request in
order to (i) qualify the Series 2007 Bonds for offer and sale under the "blue sky" or other securities
laws and regulations of such states and other jurisdictions of the United States as the Underwriter
may designate and (ii) determine the eligibility of the Series 2007 Bonds for investment under the
laws of such states and other jurisdictions, and will use its best efforts to continue such qualifications
in effect so long as required for the distribution of the Series 2007 Bonds; provided, however, that
the City shall not be required to execute a general or special consent to service of process or qualify
to do business or register as a broker/dealer in connection with any such qualification or
determination in any jurisdiction.
m. The City will not take or omit to take any action which action or omission will in
any way cause the proceeds from the sale of the Series 2007 Bonds to be applied in a manner
contrary to that provided for in the Bond Resolution, and as described in the Official Statement.
n. The City neither is nor has been in default at any time after December 31, 1975,
as to principal or interest with respect to an obligation issued or guaranteed by the City.
5
o. As of its date, the Preliminary Official Statement was deemed "final" by the City
for the purposes of Section(b)(1) of the Rule, except for the omission of certain matters permitted
thereby, by execution of the appropriate certificate by a duly authorized officer of the Ciry.
p. If, after the date of this Purchase Contract and until the earlier of (i) ninety (90)
days from the end of the "underwriting period" (as defined in the Rule) or (ii) the time when the
Official Statement is available to any person from a nationally recognized repository, but in no case
less than twenty-five (25) days following the end of the underwriting period, any event shall occur
which might or would cause the Official Statement, as then supplemented or amended, to contain
any untrue statement of a material fact or to omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading,
the City shall, if it has knowledge of such event, notify the Underwriter thereof and, if in the opinion
of the Underwriter such event requires the preparation and publication of a supplement or
amendment to the Official Statement, the City will at its own expense (unless such untrue statement
was provided by the Insurer, DTC or the Underwriter), forthwith prepare and furnish to the
Underwriter a sufficient number of copies of an amendment of or supplement to the Official
Statement (in form and substance satisfactory to the Underwriter) which will supplement or amend
the Official Statement so that it will not contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in light of the circumstances
existing at such time, not misleading. The Ciry has been informed by the Underwriter that the end
of the underwriting period shall be the business day after the Closing Date.
q. Any certificate signed by any official of the City and delivered to the Underwriter
shall be deemed a representation and warranty by the City to the Underwriter as to the truth of the
statements therein contained.
r. The City has never failed to comply with any prior continuing disclosure
obligation arising out of the Rule.
6. Closing. At noon, local time, on September 26, 2007 (the "Closing Date"), or at such
time on such earlier or later date as shall be agreed upon, the Ciry will, subject to the terms and
conditions hereof deliver to DTC pursuant to DTC's "FAST" system of registration the Series 2007
Bonds in permanent form, duly executed, and will deliver the other documents herein mentioned at
a location mutually agreed upon by the City and the Underwriter; and the Underwriter will pay the
purchase price of the Series 2007 Bonds as set forth in Section 1 hereof, by immediately available
funds, payable to the order of the Ciry, and thereupon the City shall deliver the Good Faith Check
(uncashed) described in Section 2 hereof to the Underwriter. This delivery and payment is herein
called the "Closing."
7. Closing Conditions. The Underwriter has entered into this Purchase Contract in
reliance upon the representations and warranties of the City herein contained and the performance
by the City of its obligations hereunder, both as of the date hereof and as of the time of Closing.
The obligations of the Underwriter under this Purchase Contract are and shall be subject to each of
the following conditions, and the obligations of the City shall be subject to the City receiving the
items described in conditions (f)(ii), (f)(iv), (f)(vii) through (f)(x):
a. The representations and warranties of the City contained herein shall be true and
correct as of the date hereof and as of the Closing Date, as if made on the Closing Date.
6
b. The City shall have performed all agreements of the City required to be
performed under the Bond Resolution and this Purchase Agreement prior to or on the Closing
Date.
c. At the time of the Closing, the Bond Resolution shall be in full force and effect
in accordance with its terms and shall not have been amended, modified or supplemented, and the
Official Statement shall not have been supplemented or amended, except in any such case as may
have been agreed to by the Underwriter.
d. At the time of the Closing, all official action of the City relating to the City
Documents, the Bond Resolution, the Official Statement and the Series 2007 Bonds shall be in full
force and effect in accordance with their respective terms and shall not have been amended,
modified or supplemented in any material respect, except in each case as may have been agreed to by
the Underwriter.
e. The Underwriter shall have the right to cancel the agreement contained herein to
purchase, to accept delivery of and to pay for the Series 2007 Bonds by notifying you in writing of
their intention to do so if
i. between the date hereof and the Closing Date, legislation shall have
been enacted by the Congress of the United States ("Congress"), or recommended to the Congress
for passage by the President of the United States, or favorably reported for passage to either House
of Congress by any Committee of such House, or passed by either House of Congress, or a decision
shall have been rendered by a court of the United States or the United States Tax Court, or a ruling
shall have been made or a regulation shall have been proposed or made by the Treasury Department
of the United States or the Internal Revenue Service, with respect to the federal taxation of interest
received on obligations of the general character of the Series 2007 Bonds, which, in the opinion of
Counsel for the Underwriter has, or will have, the effect of making such interest subject to inclusion
in gross income for purposes of federal income taxation, or
ii. between the date hereof and the Closing Date, legislation shall be
enacted or any action shall be taken by the Securities and Exchange Commission which has the
effect of requiring the contemplated issuance or distribution of the Series 2007 Bonds to be
registered under the Securities Act of 1933, as amended, or of requiring the Bond Resolution to be
qualified under the Trust Indenture Act of 1939, as amended, or
iii. an event described in paragraph (p) of Section 5 hereof shall have
occurred which requires an amendment or supplement to the Official Statement and which, in the
reasonable opinion of the Underwriter, adversely affects the marketability of the Series 2007 Bonds
or the market price thereof, or
iv. in the reasonable opinion of the Underwriter, payment for the
delivery of the Series 2007 Bonds is rendered impracticable or inadvisable because (A) trading in
securities generally shall have been suspended on the New York Stock Exchange, Inc., or (B) a
general banking moratorium shall have been established by Federal, New York or Florida
authorities, or (C) a war or terrorist act involving the United States or other national calamity shall
have occurred or been declared, or there shall have been a material escalation of current military
hostilities or threat thereof, or
7
v. an order, decree or injunction of any court of competent jurisdiction,
or any order, ruling, regulation or administrative proceeding by any governmental body or board,
shall have been issued or commenced, or any legislation enacted, with the purpose or effect of
prohibiting the issuance, offering or sale of the Series 2007 Bonds as contemplated hereby or by the
Official Statement or prohibiting the performance of the Bond Resolution, or
vi. the City has, without the prior written consent of the Underwriter,
offered or issued any bonds, notes or other obligations for borrowed money, or incurred any
material liabilities, direct or contingent, other than as described in the Official Statement, in either
case payable from the Pledged Revenues, or
vii. the President of the United States, the Office of Management and
Budget, the Department of Treasury, the Internal Revenue Service or any other governmental body,
department, agency or commission of the United States or the State of Florida shall take or propose
to take any action or implement or propose regulations, rules or legislation which, in the reasonable
judgment of the Underwriter, materially adversely affects the market price or marketability of the
Series 2007 Bonds or causes any material information in the Official Statement, in light of the
circumstances under which it appears, to be misleading in any material respect, or
viii. any executive order shall be announced, or any legislation, ordinance,
rule or regulation shall be proposed by or introduced in, or be enacted by any governmental body,
department, agency or commission of the United States or the State of Florida or the State of New
York, having jurisdiction over the subject matter, or a decision by any court of competent
jurisdiction within the United States or within the State of Florida or the State of New York shall be
rendered which, in the reasonable judgment of the Underwriter, materially adversely affects the
market price or marketability of the Series 2007 Bonds or causes any information in the Official
Statement to be misleading in any material respect, or
ix. prior to Closing, Moody's Investor's Service, Inc. ("Moody's'~ or
Standard & Poor's Public Finance Ratings Services, a division of McGraw-Hill Companies ("S&P"),
shall inform the City or the Underwriter that the Series 2007 Bonds will not be rated at least "Aaa"
and "AAA" respectively, or the Insurer shall inform the City or the Underwriter that it will not
deliver its Bond Insurance Policy or Reserve Policy on the Closing Date, or
x. prior to Closing, there has been an adverse change of a material nature
in the financial position, results of operations or condition, financial or otherwise, of the City, in either
case other than in the ordinary course of its business or as disclosed in the Official Statement and such
action will, in the reasonable opinion of the Underwriter, materially adversely affect the marketability of
the Series 2007 Bonds or the market price thereof.
documents:
f. At or prior to the Closing Date, the Underwriter shall receive the following
i. The Bond Resolution certified by the City Clerk under seal as having
been duly adopted by the City and as being in effect, with such supplements, modifications or
amendments as may have been agreed to by the Underwriter.
8
ii. A final approving opinion of Greenberg Traurig, P.A., Bond
Counsel, addressed to the City, dated the date of the Closing, in substantially the form included in
the Official Statement as Appendix D.
iii. A letter of Bond Counsel addressed to the Underwriter and the
Insurer, and dated the Closing Date, to the effect that their final approving opinion referred to in
Section 7(f)(ii) hereof may be relied upon by the Underwriter and the Insurer to the same extent as if
such opinion were addressed to the Underwriter and the Insurer.
iv. An opinion of Susan A. Ruby, Esquire, City Attorney, addressed to
the City, the Underwriter and the Insurer, and dated the date of the Closing, substantially to the
effect that:
(1) the City is a municipal corporation duly existing under the
Constitution and laws of the State of Florida and has good right and lawful authority to adopt the
Bond Resolution, execute and deliver the City Documents, issue the Series 2007 Bonds, to secure
the Series 2007 Bonds in the manner provided in the Bond Resolution, to carry out its powers under
the Act and to perform all of its obligations under the Bond Resolution, the Series 2007 Bonds and
the City Documents;
(2) the Bond Resolution has been duly adopted by the City and the
Series 2007 Bonds and the City Documents have been duly authorized, executed and delivered by
the City, and the Bond Resolution and the Series 2007 Bonds, when duly authenticated, and the City
Documents, when duly executed by the other parties thereto constitute valid, legal and binding
agreements of the City enforceable in accordance with their respective terms; provided, however, the
enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting creditors' rights generally;
(3) no consent, waiver or any other action by any person, board or
body, public or private, other than the approval of the City which has been duly and validly
obtained, is required as of the date hereof for the City to issue the Series 2007 Bonds or adopt the
Bond Resolution, or to execute and deliver the City Documents, or to perform its obligations under
any of the foregoing, except she need not express any opinion regarding any blue sky or legal
investment laws;
(4) to the best of her knowledge, the adoption of the Bond
Resolution, and the execution and delivery of the City Documents and the Series 2007 Bonds and
compliance with the provisions of each do not and will not conflict with or constitute a breach of or
default under any applicable law or administrative regulation of the State of Florida, or any
applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution,
ordinance, agreement or other instrument to which the City is a part or is otherwise subject;
(5) except as otherwise disclosed in the Official Statement, there is
no litigation or proceeding, pending or, to the best of her knowledge, threatened, challenging the
creation, organization or existence of the City or the validity of the Series 2007 Bonds, or the City
Documents or seeking to restrain or enjoin any of the transactions referred to therein or
contemplated thereby, or which, in any manner, questions the right of the City to issue the Series
2007 Bonds, or to pledge the Pledged Revenues for repayment of the Series 2007 Bonds;
9
(6) there is no litigation or proceeding pending to which the Ciry is a
party, the ultimate disposition of which would have a material adverse effect on the finances or
operations of the City or its ability to meet its obligations with respect to the Series 2007 Bonds;
("7) nothing has come to her attention that would lead her to believe
that the Official Statement as of its date or as of the date hereof contains any untrue statement of a
material fact or omits to state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading (except such opinion may exclude
information regarding DTC, its book-entry system, the Insurer, the Bond Insurance Policy, the
Reserve Policy and any financial or statistical data);
(8) the Official Statement has been duly authorized, executed and
delivered by the City, and the City has consented to the use thereof by the Underwriter;
(9) the City is lawfully empowered to pledge and grant a lien on the
Pledged Revenues, for the payment of the principal of and interest on the Series 2007 Bonds; and
(10) the City is in full statutory compliance with all provisions
relating to the imposition and collection of the Utilities Tax (as defined in the Bond Resolution).
v. A certificate, which shall be true and correct at the time of Closing,
signed by the City Manager and the Finance Director or such other officials satisfactory to the
Underwriter, and in form and substance satisfactory to the Underwriter, to the effect that, to the
best of their knowledge and belief
(1) the representations, warranties and covenants of the City
contained herein are true and correct in all material respects as of the Closing Date and that the Ciry
has satisfied all conditions to be performed or satisfied hereunder at or prior to Closing;
(2) the Official Statement did not as of its date, and does not as of
the Closing Date, contain any untrue statement of a material fact or omit to state a material fact
which should be included therein for the purposes for which the Official Statement is to be used, or
which is necessary in order to make the statements contained therein, in light of the circumstances in
which they were made, not misleading (provided, that no opinion need be expressed regarding the
information contained therein relating to the Insurer, the Bond Insurance Policy, the Reserve Policy,
DTC and its book-entry system);
(3) that, except as disclosed in the Official Statement, no litigation or
other proceedings are pending or, to their knowledge, threatened against the City in any court or
other tribunal of competent jurisdiction, State or Federal, in any way (i) restraining or enjoining the
issuance, sale or delivery of any of the Series 2007 Bonds, or (ii) questioning or affecting the validity
of the City Documents, the Series 2007 Bonds, the Bond Resolution or the pledge by the City to the
Bondholders of the Pledged Revenues, or (iii) questioning or affecting the validity of any of the
proceedings for the authorization, sale, execution, issuance or delivery of the Series 2007 Bonds or
(iv) questioning or affecting (A) the organization or existence of the City or the title to office of the
officers thereof or (B) the power or authority of the City to receive the Pledged Revenues or (v)
asserting that the Preliminary Official Statement or the Official Statement contains any untrue
10
statement of a material fact or omits any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
(4) that except as disclosed in the Official Statement, the City is not
in default nor has been in default at anytime after December 31, 1975 as to principal or interest with
respect to any obligation issued or guaranteed by the City;
(5) that no event affecting the City has occurred since the date of the
Official Statement that should be disclosed in the Official Statement for the purposes for which it is
to be used or that is necessary to be disclosed therein in order to make the statements and
information therein not misleading in any material respect; and
(6) that since the date of the financial statements included in the
Official Statement, (i) no material adverse change has occurred in the financial condition of the City
and (ii) the City has not incurred any material liabilities other than in the ordinary course of business,
except as set forth in or contemplated by the Official Statement.
vi. An opinion of Greenberg Traurig, P.A, as Bond Counsel, addressed
to the City and the Underwriter, and dated the Closing Date, to the effect that:
(1) with respect to the information in the Official Statement and
based upon said firm's review of the Official Statement, as Bond Counsel: (A) it is of the opinion
that the information in the Official Statement under the headings "INTRODUCTION,"
"DESCRIPTION OF THE SERIES 2007 BONDS" "SECURITY FOR THE SERIES 2007
BONDS," "CONTINUING DISCLOSURE UNDERTAKING," (except for the financial and
statistical data contained in any such headings, as to which no view need be expressed), and
"APPENDIX C -Summary of Certain Provisions of the Resolution" insofar as such information
purports to be descriptions or summaries of the Bond Resolution, the Series 2007 Bonds or state
and federal laws to the extent indicated therein, are accurate and fair statements or summaries of the
matters set forth or the documents referred to therein; and (B) the statements on the cover page and
under the section captioned "TAX EXEMPTION" insofar as such statements summarize certain
provisions of the tax law, regulations, rulings and notices, are fair and accurate statements of the
provisions so summarized and accurately reflect Bond Counsel's opinion with respect to the
exemptions from taxation applicable to the Series 2007 Bonds; and
(2) the Series 2007 Bonds are exempt from registration under the
Securities Act of 1933, as amended, and the Bond Resolution is exempt from qualification as an
indenture under the Trust Indenture Act of 1939, as amended.
vii. A certificate of an authorized representative of the Registrar and
Paying Agent, to the effect that:
(1) the Registrar and Paying Agent is a national banking association
duly organized, validly existing and in good standing under the laws of the United States of America
and is duly authorized to exercise trust powers in the State of Florida;
(2) the Registrar and Paying Agent has all the requisite authority,
power, licenses, permits and franchises, and has full corporate power and legal authority to execute
11
and perform its functions under the Bond Resolution, the Paying Agent/Registrar Agreement and
any other documents to which it is a party (herein, the "Bank Documents';
(3) the performance by the Registrar and Paying Agent of its
functions under the Bond Resolution and the Bank Documents will not result in any violation of the
Articles of Association or Bylaws of the Registrar and Paying Agent, any court order to which the
Registrar and Paying Agent is subject or any agreement, indenture or other obligation or instrument
to which the Registrar and Paying Agent is a party or by which the Registrar and Paying Agent is
bound, and no approval or other action by any governmental authority or agency having supervisory
authority over the Registrar and Paying Agent is required in order for the Registrar and Paying
Agent to perform its functions under the Bond Resolution and the Bank Documents;
(4) the Bank Documents constitute valid and binding obligations of
the Registrar and Paying Agent in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally
and subject, as to enforceability, to general principles of equity; and
(5) to the best of such authorized representative's knowledge, there
is no action, suit, proceeding, or investigation at law or in equity before any court, public board or
body pending or, to his or her knowledge, threatened against or affecting the Registrar and Paying
Agent wherein an unfavorable decision, Wiling or finding on an issue raised by any party thereto is
likely to materially and adversely affect the ability of the Registrar to perform its obligations under
the Bond Resolution and the Bank Documents.
viii. Letters of Moody's and S&P to the effect that the Series 2007 Bonds
have been assigned a rating no less favorable than "Aaa" and "AAA" respectively, which ratings
shall be in effect as of the Closing Date, each with the understanding that the Insurer will issue the
Bond Insurance Policy and Reserve Policy upon delivery of the Series 2007 Bonds, and letters from
Moody's assigning an underlying rating of "A2" and from S&P assigning an underlying rating of "A"
to the Series 2007 Bonds, without regard to any insurance policy.
ix. Duly executed copies of the Bond Insurance Policy, the Reserve
Policy, the City Documents and the Bank Documents in form acceptable to the Underwriter and
Bond Counsel.
x. An opinion of general counsel to the Insurer and a certificate of an
officer of the Insurer dated the date of the Closing and addressed to the Underwriter and the City,
concerning the Insurer, the Bond Insurance Policy, the Reserve Policy, and the information relating
to the Insurer, the Bond Insurance Policy, and the Reserve Policy, contained in the Official
Statement, in form and substance satisfactory to the Underwriter.
xi. A certificate executed by the Finance Director dated the Closing
Date, satisfactory to Bond Counsel setting forth the facts, estimates and circumstances which
establish that it is not expected that the proceeds of the Series 2007 Bonds will be used in a manner
that would cause the Series 2007 Bonds to be "arbitrage bonds" within the meaning of Section 148
of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder (the
"Code"), and to the best of the knowledge and belief of such officer, such expectations are
reasonable.
12
xii. A letter of representations of the City to DTC.
xiii. Internal Revenue Service Form 8038-G.
xiv. State of Florida Division of Bond Finance Form BF2003/2004-B.
xv. A Rule 15c2-12 Certificate pursuant to which the City "deems final" the
Preliminary Official Statement, except for permitted omissions.
xvi. The opinion of Greenberg Traurig, P.A., as Disclosure Counsel, dated
the date of the closing, in form and substance reasonably satisfactory to the Underwriter and
addressed to the City and the Underwriter. In lieu of addressing the opinion to the Underwriter,
Disclosure Counsel may provide the Underwriter a "reliance letter".
xvii. Such additional legal opinions, certificates, instruments and other
documents as the Underwriter may reasonably request to evidence the truth and accuracy, as of the
date hereof and as of the date of the Closing, of the City's representations contained herein and of the
statements and information contained in the Official Statement and the due performance or satisfaction
by the City on or prior to the date of Closing of all the agreements then to be performed and conditions
then to be satisfied by it.
If the City shall be unable to satisfy the conditions to the obligations of the Underwriter to
purchase, to accept delivery of and to pay for the Series 2007 Bonds contained in this Purchase
Contract and the Underwriter does not waive such inability in writing, or if the obligations of the
Underwriter to purchase, to accept delivery of and to pay for the Series 2007 Bonds shall be
terminated for any reason permitted by this Purchase Contract, this Purchase Contract shall
terminate, the good faith deposit described in Section 2 hereof shall be returned to the Underwriter
and neither the Underwriter nor the City shall be under any further obligation hereunder, except that
the respective obligations of the City and the Underwriter set forth in Section 8 hereof shall
continue in full force and effect.
8. Expenses. The Underwriter shall be under no obligation to pay, and the City shall pay,
any expense incident to the performance of the City's obligations hereunder including, but not
limited to: (a) the cost of preparation, printing and delivery of the Bond Resolution; (b) the cost of
preparation and printing of the Series 2007 Bonds; (c) the fees and expenses of Bond Counsel and
Disclosure Counsel; (d) the fees and expenses of Public Financial Management, Inc., the City's
financial advisor for the Series 2007 Bonds; (e) the fees and disbursements of any other experts,
consultants or advisors retained by the City; (f) fees for bond ratings; (h) the fees and expenses of
the Registrar and Paying Agent; and (h) the costs of preparing, printing and delivering the
Preliminary Official Statement and the Official Statement and any supplements or amendments
thereto. The Underwriter shall pay: (a) the cost of printing and delivery of this Purchase Contract;
(b) the cost of all "Blue Sky" and legal investment memoranda and related filing fees, if any; (c) all
advertising expenses; and (d) all other expenses incurred by it in connection with the public offering
of the Series 2007 Bonds including the fees and disbursements of counsel for the Underwriter. In
the event that either party shall have paid obligations of the other as set forth in this Section 8,
adjustment shall be made at the time of the Closing.
13
9. Notices. Any notice or other communication to be given to you under this Purchase
Contract may be given by mailing the same to the attention of the City Manager, at the address set
forth on the first page hereof, and any such notice or other communication to be given to the
Underwriter may be mailed to Bear, Stearns & Co. Inc., 225 N.E. Mizner Blvd., Suite 509, Boca
Raton, Florida 33432, Attention: J.W. Howard.
10. Parties in Interest. This Purchase Contract is made solely for the benefit of the City
and the Underwriter and no other party or person shall acquire or have any right hereunder or by
virtue hereof. All of the City's representations, warranties and agreements in this Purchase Contract
shall remain operative and in full force and effect and to the extent applicable shall survive the
delivery of the Series 2007 Bonds.
11. Waiver. Notwithstanding any provision herein to the contrary, the performance of any
and all obligations of the City hereunder and the performance of any and all conditions contained
herein for the benefit of the Underwriter may be waived by the Underwriter, and the approval of the
Underwriter when required hereunder or the determination of their satisfaction as to any document
referred to herein shall be evidenced by its purchase of the Series 2007 Bonds.
12. No Liability. Neither the Commission, nor any of the members thereof, nor any officer,
agent or employee thereof shall be charged personally by the Underwriter with any liability, or held
liable to the Underwriter under any term or provision of this Purchase Contract because of its
execution or attempted execution, or because of any breach or attempted or alleged breach thereof.
13. Governing Law. This Purchase Contract, and the terms and conditions herein, shall
constitute the full and complete agreement between the City and the Underwriter with respect to the
purchase and sale of the Series 2007 Bonds. This Purchase Contract shall be governed by and
construed in accordance with the laws of the State of Florida.
14. Operation of Warranties, Etc. All the representations, warranties, covenants and
agreements of the City in this Purchase Contract shall remain operative and in full force and effect
as if made on the date hereof and the Closing Date, regardless of (i) any investigation made by or on
behalf of the Underwriter or Counsel to the Underwriters or (ii) delivery of and any payment for the
Series 2007 Bonds hereunder.
15. Section Headings. Section headings have been inserted in this Purchase Contract as a
matter of convenience of reference only, and it is agreed that such section headings are not a part of
this Purchase Contract and will not be used in the interpretation of any provisions of this Purchase
Contract.
16. Severability. If any provision of this Purchase Contract shall be held or deemed to be,
or shall in fact be, invalid, inoperative or unenforceable as applied in any particular case in any
jurisdiction or jurisdictions, or in all jurisdictions because it conflicts with any provisions of any
constitution, statute, or rule of public policy, or for any other reasons, such circumstances shall not
have the effect of rendering the provision in question invalid, inoperative or unenforceable in any
other case or circumstances, or of rendering any other provision or provisions of this Purchase
Contract invalid, inoperative or unenforceable to any extent whatever.
14
17. Execution of Counterparts. This Purchase Contract may be executed in any number of
counterparts, all of which taken together shall be one and the same instrument, and any parties
hereto may execute this Purchase Contract by signing any such counterpart. The execution of this
Purchase Contract has been duly authorized by the Commission.
18. Effectiveness. This Purchase Contract shall become effective upon the execution by the
appropriate City official of the acceptance hereof by the City and shall be valid and enforceable at
the time of such acceptance.
BEAR,
Accepted this day of September, 2007
on behalf of the
City of Delray Beach, Florida
f; -~ ,
B
Y
May r
15
Very truly yours,
EXHIBIT A
MATURITIES, PRINCIPAL AMOUNTS, INTEREST RATES AND PRICES
$24,635,000 SERIES 2007 BONDS
Maturities Principal Interest
une 1 Amounts Rates Price
2010 $ 30,000 4.000% 100.983
2011 25,000 4.000 101.225
2012 20,000 4.000 101.317
2013 20,000 4.000 101.315
2014 70,000 4.000 101.165
2015 70,000 4.000 100.852
2016 70,000 4.000 100.359
2020 1,375,000 5.000 105.408*
2021 1,440,000 5.000 105.004*
2022 1,515,000 5.000 104.601
2023 1,590,000 5.000 104.201
2024 1,670,000 5.000 103.882*
2025 1,755,000 5.000 103.564*
2026 1,840,000 5.000 103.327*
2027 1,935,000 5.000 103.090*
$11,210,000 5.000% Term Bond due June 1, 2032, Price 102.305*
* Callable Premium Series 2007 Bonds priced to first call date of June 1, 2017
Redemption
Optional Redemption. The Series 2007 Bonds maturing on June 1, 2020 and thereafter are
subject to redemption, at the option of the City prior to maturity on or after June 1, 2017, in whole
at any time or in part from time to time on the first day of any month in such manner as shall be
determined by the City, at a redemption price equal to the principal amount of the Series 2007
Bonds to be redeemed together with accrued interest to the date fixed for redemption.
If less than all of the Series 2007 Bonds are called for redemption, the Series 2007 Bonds to
be redeemed shall be selected in such manner as the City, in its discretion, shall determine, and if less
than all of a maturity shall be called for redemption, the Series 2007 Bonds to be redeemed shall be
selected by lot within such maturity.
A-1
Mandator~Sinking Fund Redemption. The Series 2007 Bonds maturing on June 1, 2032 are
subject to mandatory sinking fund redemption prior to maturity on June 1, in the years and in the
amounts set forth below at a redemption price equal to the principal amount of Series 2007 Bonds
subject to mandatory sinking fund redemption plus accrued interest to the applicable date of
redemption:
Year Amount
2028 $2,030,000
2029 2,130,000
2030 2,235,000
2031 2,350,000
2032* 2,465,000
* Final Maturity
2
EXHIBIT B
DISCLOSURE STATEMENT
The City Commission of the
City of Delray Beach, Florida
100 N.W. First Avenue
Dekay Beach, Florida 33444
Re: $24,635,000, City of Delray Beach, Florida
Utilities Tax Revenue Bonds, Series 2007
Ladies and Gentlemen:
In connection with the proposed issuance by the City of Dekay Beach, Florida of
$24,635,000 of its Utilities Tax Revenue Bonds, Series 2007 Bonds, (the "Series 2007 Bonds"), Bear,
Stearns & Co. Inc. (the "Underwriter") is underwriting a public offering of the Series 2007 Bonds.
The purpose of this letter is to furnish, pursuant to the provisions of Section 218.385(6), Florida
Statutes, certain information in respect of the arrangements contemplated for the underwriting of
the Series 2003 Bonds as follows:
A. The nature and estimated amount of expenses to be incurred by the Underwriter
in connection with the purchase and reoffering of the Series 2007 Bonds are set forth in Schedule I
attached hereto.
B. No person has entered into an understanding with the Underwriter, or to the
knowledge of the Underwriter, with the City, for any paid or promised compensation or valuable
consideration, directly or indirectly, expressly or implied, to act solely as an intermediary between the
City and the Underwriter or to exercise or attempt to exercise any influence to effect any transaction
in the purchase of the Series 2007 Bonds.
C. The underwriting spread, the difference between the price at which the Series
2007 Bonds will be initially offered to the public by the Underwriter and the price to be paid to the
City for the Series 2007 Bonds, will be $5.33688 per $1,000 of Series 2007 Bonds issued.
D. T'he Underwriter will not charge a management fee.
E. No other fee, bonus or other compensation is estimated to be paid by the
Underwriter in connection with the issuance of the Series 2007 Bonds to any person not regularly
employed or retained by the Underwriter (including any "finder" as defined in Section 218.386(1)(a),
Florida Statutes), except as specifically enumerated as expenses to be incurred by the Underwriter, as
set forth in Paragraph (A) above.
B-1
We understand that you do not require any further disclosure from the Underwriter,
pursuant to Section 218.385(6), Florida Statutes.
BEAR, STEARNS & CO. INC.
225 N.E. Miz r Boulevard, Suite 509
Boca Rat lorida 3342
W. Howard, Managing
B-2
SCHEDULE I
UNDERWRITERS ESTIMATED EXPENSES
Average Takedown
Underwriter's Counsel
CUSIP Fee
Dalcomp
Electronic Order Fee
D'I'C
BMA
Dalnet
Day Loan
Miscellaneous Expenses
Total Expenses
(ner $1,000. Dollar Amount
$4.82976 $118,981.25
0.31459 7,750.00
0.01762 434.00
0.06000 1,478.10
0.01015 250.00
0.01376 339.00
0.03000 739.05
0.00203 50.00
0.02852 702.67
0.03044
~5.336gg 750.00
X131.474.07
B-3
EXHIBIT C
TRUTH-IN BONDING STATEMENT
The following truth-in-bonding statement is prepared pursuant to Section 218.385(2) and
(3), Florida Statutes, and is for informational purposes only. It shall not affect or control the actual
terms and conditions of the debt or obligations.
The City of Delray Beach, Florida (the "City") is proposing to issue $24,635,000 of City of
Dekay Beach, Utilities Tax Revenue Bonds, Series 2007 Bonds, (the "Series 2007 Bonds") for the
purpose of providing funds to: (i) finance and refinance certain municipal projects within the City as
more particularly described in the 2007 Resolution and (ii) pay the costs of issuing the Series 2007
Bonds, including paying the premiums for the Bond Insurance Policy and the Reserve Policy. The
Series 2007 Bonds are expected to be repaid over a period of approximately 25 years. At the interest
rates set forth in Exhibit A of the Purchase Contract, total interest paid over the life of the Series
2007 Bonds will be approximately $23,629,098.61.
The Series 2007 Bonds are limited obligations of the City, payable solely from and secured
solely by a pledge of and first priority lien on the Pledged Revenues, which consist of the proceeds
of the City's Utilities Tax levied and collected or received by the City and deposited in the Sinking
Fund created and established pursuant to the terms and provisions of the Bond Resolution (the
"Pledged Revenues"). Authorizing the Series 2007 Bonds will result in a maximum of $2,592,250.00
of Pledged Revenues not being available to finance other projects of the City each year for
approximately 25 years.
REGISTRAR AND PAYING AGENT AGREEMENT
Between
CITY OF DELRAY BEACH, FLORIDA
and
COMMERCE BANK, NATIONAL ASSOCIATION
pertaining to the
$24,635,000 CITY OF DELRAY BEACH, FLORIDA
UTILITIES TAX REVENUE BONDS, SERIES 2007
Dated as of
September 26, 2007
WPB 381661398v6 016787.011900 9/19/2007
TABLE OF CONTENTS
Article I APPOINTMENT OF BANK AS REGISTRAR AND PAYING AGENT .................1
Section 1.01 Appointment ...............................................................................................1
Section 1.02 Compensation .............................................................................................1
Article II DEFINITIONS ..............................................................................................................2
Section 2.01 Definitions ...................................................................................................2
Article III PAYING AGENT ........................................................................................................3
Section 3.01 Duties of Paying Agent ..............................................................................3
Section 3.02 Payment Dates ............................................................................................4
Article IV REGISTRAR ................................................................................................................4
Section 4.01 Transfer and Exchange .............................................................................4
Section 4.02 The Bonds ...................................................................................................5
Section 4.03 Form of Register ........................................................................................5
Section 4.04 List of Owners ............................................................................................5
Section 4.05 Cancellation of Bonds ................................................................................5
Section 4.06 Mutilated, Destroyed, Lost, or Stolen Bonds ...........................................6
Section 4.07 Transaction Information to Issuer ...........................................................6
Article V THE BANK ....................................................................................................................7
Section 5.01 Duties of Bank ............................................................................................ 7
Section 5.02 Reliance on Documents, Etc ...................................................................... 7
Section 5.03 Recitals of Issuer ........................................................................................ 8
Section 5.04 May Hold Bonds ......................................................................................... 8
Section 5.05 Money Held by Bank ................................................................................. 8
Section 5.06 Mergers or Consolidations ........................................................................ 8
Section 5.07 Indemnification .......................................................................................... 8
Section 5.08 Interpleader ................................................................................................ 9
Article VI MISCELLANEOUS PROVISIONS ..........................................................................9
Section 6.01 Amendment .............................................................................................. ..9
Section 6.02 Assignment ................................................................................................ ..9
Section 6.03 Notices ....................................................................................................... ..9
Section 6.04 Effect of Headings .................................................................................... ..9
Section 6.05 Successors and Assigns ............................................................................ ..9
Section 6.06 Severability ............................................................................................... 10
Section 6.07 Benefits of Agreement .............................................................................. 10
Section 6.08 Entire Agreement ..................................................................................... 10
Section 6.09 Counterparts ............................................................................................ 10
Section 6.10 Termination .............................................................................................. 10
Section 6.11 Governing Law; Venue ............................................................................ 10
WPB 381661398v6 016787.011900 9/19/2007
REGISTRAR AND PAYING AGENT AGREEMENT
This REGISTRAR AND PAYING AGENT AGREEMENT (the "Agreement") dated
as of September 26, 2007, by and between City of Delray Beach, Florida (the "Issuer") and
Commerce Bank, National Association, (the "Bank"), a National banking association duly
organized and validly existing under the laws of the United States of America.
WHEREAS, the Issuer has duly authorized and provided for the issuance of its Utilities
Tax Revenue Bonds, Series 2007(the "Bonds"), in an original aggregate principal amount of
$24,635,000; and
WHEREAS, all things necessary to make the Bonds the valid obligations of the Issuer,
in accordance with their terms, will have been taken upon the issuance and delivery thereof; and
WHEREAS, the Issuer is desirous that the Bank act as the Paying Agent of the Issuer in
paying the principal, redemption premium, if any, and interest on the Bonds, in accordance with
the terms thereof, and that the Bank act as Registrar for the Bonds; and
WHEREAS, the Issuer has duly authorized the execution and delivery of this
Agreement, and all things necessary to make this Agreement a valid agreement of the Issuer, in
accordance with its terms, have been done; and
WHEREAS, the Bank, being a duly organized and validly existing national banking
association organized under the laws of the United States, has full power and authority to serve
as Registrar and Paying Agent hereunder.
NOW, THEREFORE, it is mutually agreed to the following terms:
ARTICLE I
APPOINTMENT OF BANK AS
REGISTRAR AND PAYING AGENT
Section 1.01 Appointment.
(a) The Issuer hereby appoints the Bank to act as Paying Agent with respect
to the Bonds, in paying to the Owners of the Bonds the principal, redemption premium, if any,
and interest on all or any of the Bonds.
(b) The Issuer hereby appoints the Bank as Registrar with respect to the
Bonds.
(c) The Bank hereby accepts its appointment, and agrees to act as the
Registrar and Paying Agent with respect to the Bonds in accordance with the terms hereof and
the Bond Resolution, as hereinafter defined.
Section 1.02 Compensation. As compensation for Bank's services as Registrar and
Paying Agent the Issuer agrees to pay the Bank the fees and amounts set forth in Annex A
hereto. Issuer agrees to reimburse the Bank for any non-recurring expenses, disbursements or
WPB 381661398v6 016787.011900 9/19/2007
advances provided that the Issuer has been notified in advance and has approved such expense,
disbursement or advance prior to being incurred or made. The Bank will provide documentation
as to such non-recurring expenses and fees incurred by either an invoice or an internally
generated document. Such fees and expenses shall be paid to the Bank as billed.
ARTICLE II
Section 2.01 Definitions. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires, the following terms have the
following meanings when used in this Agreement.
"Bank" means Commerce Bank, National Association.
"Bank Office" means the principal office of the Corporate Trust Department of the Bank
in Jacksonville, Florida. The Bank will notify the Issuer in writing of any change in location of
the Bank Office.
"Bond" or "Bonds" means any or all of the Issuer's Utilities Tax Revenue Bonds, Series
2007, in the original aggregate principal amount of $24,635,000.
"Bond Insurer" means MBIA Insurance Corporation.
"Bond Resolution" means Resolution No. 98-91, adopted by the Issuer on December 3,
1991, as amended and supplemented from time to time and specifically by Resolution No. R-90-
02 and No. R-21-07, adopted by the Issuer on December 3, 2002 and August 21, 2007,
respectively, providing for the issuance of the Bonds
"Financial Guaranty Insurance Policy" means the Municipal Bond Insurance Policy
issued by the Bond Insurer, insuring the payment of the principal of and interest on the Bonds.
"Fiscal Year" means each 12-month period ending September 30.
"Interest Period" means the number of days from the Bond's dated date or from the
Bond's previous payment date based on a 30-day month.
"Issuer" means the City of Delray Beach, Florida.
"Issuer Request" and "Issuer Order" means a request in writing signed by the Issuer's
Mayor, Vice-Mayor, Finance Director or Treasurer, or any other officer or official of the Issuer
duly authorized and satisfactory to the Bank.
"Legal Holiday" means a day on which the Bank is required or authorized to be closed.
"Owner" means the Depository Trust Company ("DTC") or any successor company,
unless the Bonds are no longer maintained under a system of book-entry, then such term shall
mean the Person in whose name a Bond is registered in the Register.
WP8 381661398v6 016787.011900 9/19/2007 2
"Paying Agent" means the Bank when it is performing the functions of paying principal,
redemption premium, if any, and interest on the Bonds, all in accordance with the terms in this
Agreement and the Bond Resolution.
"Person" means any individual, corporation, partnership, joint venture, association, joint
stock company, trust, organization or government or any agency or political subdivision of a
government.
"Predecessor Bonds" of any particular Bond means every previous Bond evidencing all
or a portion of the same obligation as that evidenced by such particular Bond (and, for the
purposes of this definition, any Bond registered and delivered under Section 4.06 in lieu of a
mutilated, lost, destroyed or stolen Bond shall be deemed to evidence the same obligation as the
mutilated, lost, destroyed or stolen Bond).
"Register" means a register in which the Bank shall, on behalf of the Issuer, provide for
the registration and transfer of Bonds.
"Registrar" means the Bank when it is performing the functions of registrar in accordance
with the terms in this Agreement and the Bond Resolution.
"Responsible Officer" when used with respect to the Bank means the President or Vice
President of the Board of Directors, the Chairman or Vice Chairman of the Executive Committee
of the Board of Directors, the President, any Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, the Cashier, any Assistant Cashier, any Trust
Officer or Assistant Trust Officer, or any other officer of the Bank customarily performing
functions similar to those performed by any of the above designated officers and also means,
with respect to a particular corporate trust matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the particular subject.
"Stated Maturity" means the date specified on the face of each Bond as the fixed date on
which the principal of the Bond is due and payable or the date fixed in accordance with the terms
of the Bond Resolution for earlier redemption of the Bond, or any portion thereof, prior to the
fixed maturity date.
ARTICLE III
PAYING AGENT
Section 3.01 Duties of Paying Agent. (a) The Bank, as Paying Agent and on behalf of
the Issuer, shall pay to the Owner, at the applicable Stated Maturity and upon the surrender of the
Bond or Bonds so maturing at the Bank Office, the principal amount of the Bond or Bonds then
maturing, provided that the Bank shall have been provided by or on behalf of the Issuer adequate
collected funds to make such payment, or in the event that DTC is the Owner then payment is to
be made to DTC or its successor by whatever means is agreeable between DTC, or its successor,
and the Paying Agent.
(a) The Bank, as Paying Agent and on behalf of the Issuer, shall pay interest
when due on the Bonds to each Owner of the Bonds (or their Predecessor Bonds) as shown in the
Register at the close of business on the Record Date, with respect to the Bonds, provided that the
WPB 381661398v6 016787.011900 9/19/2007 3
Bank shall have been provided by or on behalf of the Issuer adequate collected funds to make
such payments; such payments shall be made by computing the amount of interest to be paid
each Owner (by multiplying the outstanding principal for each maturity by its respective interest
rate and by the number of days in the interest period the product of which is divided by 360),
preparing the checks, and mailing the checks on each interest payment date addressed to each
Owner's address as it appears in the Register, or in the event that DTC is the Owner then
payment is to be made to DTC or its successor by whatever means is agreeable between DTC, or
its successor, and the Paying Agent.
(b) If the funds received by the Bank from the Issuer are insufficient for the
payment of the principal of or interest on the Bonds on any principal or interest payment date,
the Bank shall notify the Issuer and the Bond Insurer of such deficiency in accordance with the
Bond Insurance Policy. In the event the Bonds have been defeased in accordance with the Bond
Resolution, then the Bank shall notify the escrow agent for the trust account for the defeased
bonds.
(c) The Bank, as Paying Agent, shall perform all obligations under the Bond
Resolution, as supplemented and amended, and under any credit facility deposited in the Bond
Reserve Account as maybe required thereunder in connection with such credit facility.
Section 3.02 Payment Dates. The Issuer hereby instructs the Bank to pay the principal
of and interest on the Bonds on the dates specified in the Bond Resolution and on subsequent
payment dates until the principal on the Series 2006 Bonds are ultimately retired, on or before
June 1, 2032.
ARTICLE IV
REGISTRAR
Section 4.01 Transfer and Exchange.
(a) The Issuer shall keep the Register at the Bank Office, and subject to such
reasonable written regulations as the Issuer may prescribe, which regulations shall be furnished
to the Bank herewith or subsequent hereto by Issuer Order, the Issuer shall provide for the
registration and transfer of the Bonds. The Bank, is hereby appointed as and accepts the role of
"Registrar" for the purpose of registering, transferring and authenticating the Bonds as herein
provided. The Bank agrees to maintain the Register while it is Registrar.
(b) The Registrar hereby agrees that at any time while any Bond is
outstanding, the Owner may deliver such Bond to the Registrar for transfer or exchange,
accompanied by instructions from the Owner, or the duly authorized designee of the Owner,
designating the persons, the maturities, and the principal amounts to and in which such Bond is
to be transferred and the addresses of such persons; the Registrar shall thereupon, within not
more than three (3) business days, register and deliver such Bond or Bonds as provided in such
instructions. The Bank shall, as Registrar, authenticate and deliver Bonds only in accordance
with the terms of the Bond Resolution. To the extent any transfer and exchange procedures set
forth herein are in conflict with such provisions in the Bond Resolution, the provisions of the
Bond Resolution shall control.
WP8 381661398v6 016787.011900 9/19/2007 4
(c) Every Bond surrendered for transfer or exchange shall be duly endorsed or
be accompanied by a written instrument of transfer, the signature on which has been guaranteed
by an officer of a commercial bank or trust company or a member firm of the New York Stock
Exchange, in form satisfactory to the Bank, duly executed by the Owner thereof or his attorney
duly authorized in writing.
(d) The Registrar may request any supporting documentation necessary to
effect a re-registration.
(e) The Owner may be charged an amount sufficient to reimburse the Issuer
or the Registrar for any tax, fee or other governmental charge required to be paid for any
registration, transfer, or exchange of Bond(s).
Section 4.02 The Bonds. The Issuer shall provide an adequate inventory of
unregistered Bonds to facilitate transfers of the Bonds in the event the Bonds are no longer
maintained under a book-entry system. The Bank covenants that it will maintain the
unregistered Bonds in safekeeping, which shall be not less than the care it maintains for debt
securities of other governments or corporations for which it serves as registrar, or which it
maintains for its own securities.
Section 4.03 Form of Register. The Bank as Registrar will maintain the records of the
Register in accordance with the Bank's general practices and procedures in effect from time to
time. The Bank shall not be obligated to maintain such Register in any form other than a form
which the Bank has currently available and currently utilizes at the time.
Section 4.04 List of Owners.
(a) The Bank will provide the Issuer at any time requested by the Issuer, upon
payment of the cost, if any, of reproduction, a copy of the information contained in the Register.
The Issuer may also inspect the information in the Register at any time the Bank is customarily
open for business, provided that reasonable time is allowed the Bank to provide an up-to-date
listing or to convert the information into written form.
(b) Except as otherwise provided in the Bond Resolution, the Bank will not
release or disclose the content of the Register to any person other than to the Issuer's Chairman
or Chief Financial Officer, or any other officer or official of the Issuer duly authorized and
satisfactory to the Bank, except upon the direction or request of an authorized officer or designee
of the Issuer or upon receipt of a subpoena or court order. Upon receipt of a subpoena or court
order and as permitted by law, the Bank will notify the Issuer so that the Issuer may contest the
subpoena or court order.
Section 4.05 Cancellation of Bonds. All Bonds surrendered for payment, redemption,
transfer, exchange, or replacement, if surrendered to the Bank, shall be promptly canceled by it
and, if surrendered to the Issuer, shall be delivered to the Bank and, if not already canceled, shall
be promptly canceled by the Bank. The Issuer may, at any time, deliver to the Bank for
cancellation any Bonds previously certified or registered and delivered which the Issuer may
have acquired in any manner whatsoever, and all Bonds so delivered shall be promptly canceled
by the Bank. All canceled Bonds held by the Bank shall be disposed of by the Bank as directed
WPB 381661398v6 016787.011900 9/19/2007
by the Issuer. The Bank will surrender to the Issuer, at such reasonable intervals as it
determines, certificates of destruction, in lieu of which or in exchange for which other Bonds
have been issued or which have been paid.
Section 4.06 Mutilated, Destroyed, Lost, or Stolen Bonds.
(a) Subject to the provisions of this Section 4.06, the Issuer hereby instructs
the Bank to deliver fully registered Bonds in exchange for or in lieu of mutilated, destroyed, lost
or stolen Bonds as long as the same does not result in an over issuance, all in conformance with
the requirements of the Bond Resolution.
(b) If (i) any mutilated Bond is surrendered to the Bank, or the Issuer and the
Bank receives evidence to their satisfaction of the destruction, loss, or theft of any Bond, and (ii)
there is delivered to the Issuer and the Bank such security or indemnity as may be required by the
Bank to save and hold each of them harmless, then, in the absence of notice to the Issuer or the
Bank that such Bond has been acquired by a bona fide purchaser, upon the Issuer's request the
Bank shall authenticate, shall register and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost, or stolen Bond, a new Bond of the same stated maturity and of like
tenor and principal amount bearing a number not contemporaneously outstanding.
(c) Duplicate replacement Bonds issued in place of any mutilated, destroyed,
stolen or lost Bonds shall only be issued in accordance with the Bond Resolution and general law
of the State of Florida.
(d) Upon the satisfaction of the Bank and the Issuer that a Bond has been
mutilated, destroyed, lost or stolen, and upon receipt by the Bank and the Issuer of such
indemnity or security as they may require, the Bank shall cancel the Bond number on such Bond,
with a notation in the Register that said Bond has been mutilated, destroyed, lost or stolen, and a
new Bond shall be issued of the same series and of like tenor and principal amount bearing a
number, according to the Register not contemporaneously outstanding.
(e) The Bank may charge the Owner any expenses of the Issuer or the Bank in
connection with issuing a new Bond in lieu of or exchange for a mutilated, destroyed, lost or
stolen Bond.
(f) The Issuer hereby accepts the Bank's current blanket bond for lost, stolen,
or destroyed Bonds and any future substitute blanket bond for lost, stolen, or destroyed Bonds
that the Bank may arrange, and agrees that the coverage under any such blanket bond is
acceptable to it and meets the Issuer's requirements as to security or indemnity. The Bank will
notify the Issuer of any changes in the security or other company giving such bond or the terms
of any such bond, provided that the amount of such bond is not reduced below the amount of the
bond on the date of execution of this Agreement. The blanket bond then utilized by the Bank for
lost, stolen or destroyed Bonds by the Bank is available for inspection by the Issuer on request.
Section 4.07 Transaction Information to Issuer. The Bank will, within a reasonable
time after receipt of written request from the Issuer, furnish the Issuer information as to the
Bonds it has paid pursuant to Section 3.01, Bonds it has delivered upon the transfer or exchange
WPB 381661398v6 016787.011900 9/19/2007 6
of any Bonds pursuant to Section 4.01, and Bonds it has delivered in exchange for or in lieu of
mutilated, destroyed, lost or stolen Bonds pursuant to Section 4.06.
ARTICLE V
THE BANK
Section 5.01 Duties of Bank. The Bank undertakes to perform the duties set forth
herein and in accordance with the Bond Resolution and agrees to use reasonable care in the
performance thereof. The Bank hereby agrees to use the funds deposited with it for payment of
the principal of, redemption premium, if any, and interest on the Bonds to pay the Bonds as the
same shall become due, and further agrees to establish and maintain all accounts and funds as
may be required for the Bank to function as Paying Agent.
Section 5.02 Reliance on Documents, Etc.
(a) The Bank may conclusively rely as to the truth of the statements and
correctness of the opinions expressed on any certificate or opinion furnished to the Bank which
the Bank reasonably believes to be true and correct.
(b) The Bank shall not be liable for any error of judgment or any act or steps
taken or permitted to be taken in good faith, or for any mistake in law or fact, or for anything it
may do or refrain from doing in connection herewith, except for its own willful misconduct or
negligence.
(c) No provisions of this Agreement shall require the Bank to expend or risk
its own funds or otherwise incur any financial liability for performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity satisfactory to it against such risks
or liability is not assured.
(d) The Bank may rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, certificate, note, security, or other paper or document believed
reasonably by it to be genuine and to have been signed or presented by the proper party or
parties. Without limiting the generality of the foregoing statement, the Bank need not examine
the ownership of any Bonds, but is protected in acting upon receipt of Bonds containing an
endorsement or instruction of transfer or power of transfer which appears on its face to be signed
by the Owner or an attorney-in-fact for or legal representative of the Owner. The Bank shall not
be bound to make any investigation into the facts or matters stated in a resolution, certificate,
statement, instrument, opinion, report, notice, direction, consent, order, certificate, note, security
paper or document supplied by Issuer.
(e) The Bank may exercise any of the powers hereunder and perform any
duties hereunder either directly or by or through agents or attorneys of the Bank.
(f) The Bank may consult with nationally recognized counsel, and the advice
of such counsel or any opinion of such counsel shall be full and complete authorization and
WPB 381661398v6 016787.011900 9/19/2007 7
protection with respect to any action taken, suffered, or omitted by it hereunder in good faith and
in reliance thereon.
Section 5.03 Recitals of Issuer.
(a) The recitals contained herein and in the Bonds shall be taken as the
statements of the Issuer, and the Bank assumes no responsibility for their correctness.
(b) The Bank shall in no event be liable to the Issuer, any Owner or Owners or
any other Person for any amount due on any Bond except in the event of the Bank's willful
misconduct or negligence.
Section 5.04 May Hold Bonds. The Bank, in its individual or any other capacity, may
become the owner or pledgee of Bonds and may otherwise deal with the Issuer with the same
rights it would have if it were not the Paying Agent, Registrar or any other agent.
Section 5.05 Money Held by Bank.
(a) Money held by the Bank hereunder need not be segregated from any other
funds provided appropriate accounts are maintained.
it hereunder.
(b) The Bank shall be under no liability for interest on any money received by
(c) Unless otherwise provided in the Bond Resolution, any money deposited
with the Bank for the payment of the principal, redemption premium, if any, or interest on any
Bond and remaining unclaimed for three years after final maturity of the Bond has become due
and payable will be paid by the Bank to the Issuer, and the Owner of such Bond shall thereafter
look only to the Issuer for payment thereof, and all liability of the Bank with respect to such
monies shall thereupon cease.
Section 5.06 Mergers or Consolidations. Any corporation into which the Bank, or
any successor to it in the trusts created by this Agreement, may be merged or converted or with
which it or any successor to it may be consolidated, or any corporation resulting from any
merger, conversion, consolidation or tax-free reorganization to which the Bank or any successor
to it shall be a party shall be the successor Bank under this Agreement with written notice to the
Issuer of the merger or consolidation within 60 days after the effective date of such transaction.
Section 5.07 Indemnification. The Issuer hereby assumes liability for, and hereby
agrees to the extent permitted by law, to indemnify, protect, save and keep harmless the Bank
and its respective successors, assigns, agents and servants, from and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and
disbursements (including reasonable legal fees and disbursements), which may be imposed on,
incurred by, or asserted against, at any time, the Bank and in any way relating to or arising out of
the execution and delivery of this Agreement, the acceptance of the funds and securities
deposited hereunder, and any payment, transfer or other application of funds and securities by
the Bank in accordance with the provisions of this Agreement and the Bond Resolution; or any
other duties of the Bank hereunder; provided, however, that the Issuer shall not be required to
WPB 381661398v6 016787.011900 9/19/2007 g
indemnify the Bank against the Bank's own negligence or willful misconduct. In no event shall
the Issuer be liable to any person by reason of the transactions contemplated hereby other than to
the Bank as set forth in this Section. The indemnities contained in this Section shall survive the
termination of this Agreement.
Section 5.08 Interpleader. The Issuer and the Bank agree that the Bank may seek
adjudication of any adverse claim, demand, or controversy over its persons as well as funds on
deposit, waive personal service of any process, and agree that service of process by certified or
registered mail, return receipt requested, to the address set forth in Section 6.03 hereof shall
constitute adequate service. The Issuer and the Bank further agree that the Bank has the right to
file a Bill of Interpleader in any court of competent jurisdiction to determine the rights of any
person claiming any interest herein.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.01 Amendment. This Agreement may be amended only by an agreement in
writing signed by both of the parties hereto.
Section 6.02 Assignment. This Agreement may not be assigned by either party without
the prior written consent of the other.
Section 6.03 Notices. Any request, demand, authorization, direction, notice, consent,
waiver or other document provided or permitted hereby to be given or furnished to the Issuer or
the Bank, and any notice of deficiency to the Bond Insurer in accordance with Section 3.01(c)
herein, shall be mailed first class postage prepaid or hand delivered to the Issuer or Bank or Bond
Insurer at the respective addresses shown below:
(a) If the Issuer: City of Delray Beach, Florida
Attn: Becky O'Connor, Treasurer
100 NW 1st Avenue
Delray Beach, Florida 33444
(b) If the Bank: Commerce Bank, National Association
7545 Centurion Parkway, Suite 402
Jacksonville, FL 32256
Attn: Corporate Trust Department
(c) If the Bond Insurer: MBIA Insurance Corporation
113 King Street
Armonk, New York 10504
Attn: Insured Portfolio Management Group
Section 6.04 Effect of Headings. The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
Section 6.05 Successors and Assigns. All covenants and agreements herein by either
party shall bind its successors and assigns whether so expressed or not.
WPB 381661398v6 016787.011900 9/19/2007 9
Section 6.06 Severability. In case any provision herein shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 6.07 Benefits of Agreement. Nothing herein, express or implied, shall give to
any Person, other than the parties hereto and their successors hereunder, any benefit or any legal
or equitable right, remedy or claim hereunder.
Section 6.08 Entire Agreement. This Agreement and the Bond Resolution constitute
the entire agreement between the parties hereto relative to the Bank acting as Paying Agent and
Registrar and if any conflict exists between this Agreement and the Bond Resolution, the Bond
Resolution shall govern.
Section 6.09 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall constitute one and
the same Agreement.
Section 6.10 Termination.
(a) This Agreement will terminate on the date of final payment by the Bank
issuing its checks for the final payment of principal and interest of the Bonds, anticipated to be
June 1, 2032.
(b) This Agreement may be earlier terminated with or without cause upon 60
days written notice by either party. Upon such termination, the Issuer reserves the right to
appoint a successor Paying Agent and Registrar. If the Bank terminates pursuant to this
subsection (b) and appointment of a successor is not made within sixty (60) days from the date of
written notice, the Bank shall deliver all records and any unclaimed funds to the Issuer without a
right of setoff by the Bank for any fees, charges or expenses from the dated date of the written
notice; provided, however, that the Bank is entitled to payment of all outstanding fees and
expenses incurred prior to the date of written notice to the Issuer. In the event this Agreement is
terminated by giving written notice, then the Bank agrees, upon request by the Issuer, to give
notice by first-class mail to all registered holders of the name and address of the successor
Paying Agent and Registrar. Expenses for such notice to the registered holders shall be paid by
the Issuer. Upon termination prior to payment or redemption of the Bonds in full, if the
successor Paying Agent and Registrar does not agree to assume the Bank's obligation under this
Agreement or a similar agreement for no additional consideration because of the payment of the
up-front fee which was payable on the date of issue of the Bonds, the Bank agrees to repay to the
City the unearned up-front fee.
(c) The Issuer may appoint any Registrar and Paying Agent unless otherwise
prohibited by State law, as maybe amended from time to time.
(d) The provisions of Section 1.02 and Article Five shall survive, and remain
in full force and effect following the termination of this Agreement.
Section 6.11 Governing Law; Venue. This Agreement shall be construed in
accordance with and governed by the laws of the State of Florida. Any action or proceeding, in
WP8 381661398v6 016787.011900 9/19/2007 10
law or equity, arising out of or in any way related to this Agreement or the obligations hereunder
shall be in Palm Beach County, Florida.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
September 26, 2007.
CIT~_A~DELRAY BEACH, FLORIDA
c~1~X~. ~J /// ,l
Y~ ~~/~
Name: Rita Ellis
Title: Mayor of the City Commission of the
City of Delray Beach, Florida
Attest:
By: ~~ ~ . N .:.~
Name: Chevelle D. Nubin
Title: City Clerk
COMMERCE BANK, NATIONAL
ASSOCIATION
By: ~'~,'Yi~ i* . ,I~,~,
Name: Jane E. Pope
Title: Vice President
WPB/381661398v6/016787.011900 11
ANNEX A
FEES FOR REGISTRAR AND PAYING AGENT SERVICES
CITY OF DELRAY BEACH, FLORIDA
UTILITIES TAX REVENUE BONDS, SERIES 2007
A. Acceptance Fee (including legal expense):
B. Upfront Fee: (1)
C. Out-of-Pocket Expenses:
(1) Payable at closing.
$0
$4,900
$0
"Commerce complies with Section 326 of the USA Patriot Act .This law mandates that
we ask for, verify, and record certain information about you or your organization
(including your or your organization's name, street address, Social Security or Tax
Identification Number, and other information) while processing your account
application. We may also ask you for identifying documents. "
WPB 381661398v6 016787.011900 9/19/2007
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mbia
WISDOM IN ACTIONS'"
REVISED AS OF SEPTEMBER 7, 2007
COMMITMENT TO ISSUE A
FINANCIAL GUARANTY INSURANCE POLICY
Application No.: 2007-001967-001
Sale Date: September 7, 2007
Program Type: Competitive DP
Re: $24,635,000 City of Delray Beach, Florida, Utilities Tax Revenue Bonds, Series 2007
(the "Obligations")
This commitment to issue a financial guaranty insurance policy (the "Commitment")
dated September 6, 2007, constitutes an agreement between CITY OF DELRAY BEACH (the
"Applicant") and MBIA Insurance Corporation (the "Insurer"}, a stock insurance company
incorporated under the laws of the State of New York.
Based on an approved application dated March 22, 2007, the Insurer agrees, upon
satisfaction of the conditions herein, to issue on the earlier of (i) 120 days of said approval date
or (ii) on the date of delivery of and payment for the Obligations, a financial guaranty insurance
policy (the "Policy") for the Obligations, insuring the payment of principal of and interest on the
Obligations when due. The issuance of the Policy shall be subject to the following terms and
conditions:
1. Payment by the Applicant, or by the Trustee on behalf of the Applicant, on the date
of delivery of and payment for the Obligations, of a nonrefundable premium in the amount of
$121,000 [.25% (premium rate) of $48,264,098.61 (total debt service), premium rounded to the
nearest thousand]. The premium set out in this paragraph shall be the total premium required to
be paid on the Policy issued pursuant to this Commitment.
2. The Obligations shall have received the unqualified opinion of bond counsel with
respect to the tax-exempt status of interest on the Obligations.
3. There shall have been no material adverse change in the Obligations or the
Resolution, Bond Ordinance, Trust Indenture or other official document authorizing the issuance
of the Obligations or in the final official statement or other similar document, including the
financial statements included therein.
4. There shall have been no material adverse change in any information submitted to
the Insurer as a part of the application or subsequently submitted to be a part of the application
to the Insurer.
5. No event shall have occurred which would allow any underwriter or any other
purchaser of the Obligations not to be required to purchase the Obligations at closing.
6. A Statement of Insurance satisfactory to the Insurer shall be printed on the
Obligations.
MBIA Insurance Corporation 113 King Street Armonk, NY 10504 +1 914 273 4545 www.mbia.com
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WISDOM IN ACTION'"
7. Prior to the delivery of and payment for the Obligations, none of the information or
documents submitted as a part of the application to the Insurer shall be determined to contain
any untrue or misleading statement of a material fact or fail to state a material fact required to
be stated therein or necessary in order to make the statements contained therein not misleading.
8. No material adverse change affecting any security for the Obligations shall have
occurred prior to the delivery of and payment for the Obligations.
9. The Insurer's "Payments Under the Policy/Other Required Provisions" (see
attached) shall be included in the authorizing document.
10. The Applicant agrees not to use the Insurer's name in any public document
including, without limitation, a press release or presentation, announcement or forum without the
Insurer's prior consent; provided however, such prohibition on the use of the Insurer's name shall
not relate to the use of the Insurer's standard approved form of disclosure in public documents
issued in connection with the current Obligations to be issued in accordance with the terms of the
Commitment; and provided further such prohibition shall not apply to the use of the Insurer's
name in order to comply with public notice, public meeting or public reporting requirements.
11. This Commitment may be signed in counterpart by the parties hereto.
12. Compliance with the Insurer's General Document Provisions (see attached).
Dated this 6th day of September, 2007.
MBIA Insurance Corporation
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~~ Se~rei~ryi.f " ~.
CITY OF DELRAY BEACH
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Title:
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WISDOM IN ACTIONsm
GENERAL DOCUMENT PROVISIONS
A. Notice to the Insurer The basic legal documents must provide that any notices required to be given
by any party should also be given to the Insurer, Attn: Insured Portfolio Management.
B. Amendments. In the basic legal document, there are usually two methods of amendment. The first,
which typically does not require the consent of the bondholders, is for amendments which will cure
ambiguities, correct formal defects or add to the security of the financing. The second, in which
bondholder consent is a prerequisite, covers the more substantive types of amendments. For all
financings, the Insurer must be given notice of any amendments that are of the first type and the
Insurer's consent must be required for all amendments of the second type. All documents must
contain a provision which requires copies of any amendments to such documents which are
consented to by the Insurer to be sent to Standard & Poor's.
C. Supplemental Legal Document. If the basic legal document provides for a supplemental legal
document to be issued for reasons other than (1) a refunding to obtain savings; or (2) the issuance
of additional bonds pursuant to an additional bonds test, there must be a requirement that the
Insurer's consent also be obtained prior to the issuance of any additional bonds and/or execution of
such supplemental legal document.
D. Events of Default and Remedies. All documents normally contain provisions which define the
events of default and which prescribe the remedies that may be exercised upon the occurrence of an
event of default. At a minimum, events of default will be defined as follows:
1. the issuer/obligor fails to pay principal when due;
2. the issuer/obligor fails to pay interest when due;
3. the issuer/obligor fails to observe any other covenant or condition of the document and such
failure continues for 30 days and
4. the issuer/obligor declares bankruptcy.
The Insurer, acting alone, shall have the right to direct all remedies in the event of a default. The Insurer
shall be recognized as the registered owner of each bond which it insures for the purposes of exercising
all rights and privileges available to bondholders. For bonds which it insures, the Insurer shall have the
right to institute any suit, action, or proceeding at law or in equity under the same terms as a bondholder
in accordance with applicable provisions of the governing documents. Other than the usual redemption
provisions, any acceleration of principal payments must be subject to the Insurer's prior written consent.
E. Defeasance requires the deposit of:
1. Cash
2. U.S. Treasury Certificates, Notes and Bonds (including State and Local Government
Series -- " SLGs")
Direct obligations of the Treasury which have been stripped by the Treasury itself, CATS,
TIGRS and similar securities
MBIA Insurance Corporation 113 King Street Armonk, NY 10504 +1 914 273 4545 www.mbia.com
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WISDOM IN ACTIONsm
4. Resolution Funding Corp. (REFCORP) Only the interest component of REFCORP strips
which have been stripped by request to the Federal Reserve Bank of New York in book entry
form are acceptable.
5. Pre-refunded municipal bonds rated "Aaa" by Moody's and "AAA" by S&P. If however, the
issue is only rated by S&P (i.e., there is no Moody's rating), then the pre-refunded bonds must
have been pre-refunded with cash, direct U.S. or U.S. guaranteed obligations, or AAA rated
pre-refunded municipals to satisfy this condition.
6. Obligations issued by the following agencies which are backed by the full faith and credit of
the U.S.
a. U.S. Export-Import Bank (Eximbank)
Direct obligations or fully guaranteed certificates of beneficial ownership
b. Farmers Home Administration (FmHA)
Certificates of beneficial ownership
c. Federal Financing Bank
d. General Services Administration
Participation certificates
e. U.S. Maritime Administration
Guaranteed Title XI financing
£ U.S. Department of Housing and Urban Development (HUD)
Project Notes
Local Authority Bonds
New Communities Debentures - U.S. government guaranteed debentures
U.S. Public Housing Notes and Bonds - U.S. government guaranteed public housing
notes and bonds
The Insurer shall be provided with an opinion of counsel acceptable to the Insurer that the Obligations
have been legally defeased and that the escrow agreement establishing such defeasance operates to legally
defense the Obligations within the meaning of the Indenture and the Supplemental Indenture relating to
the Obligations. In addition, the Insurer will be entitled to receive (i) 15 business days notice of any
advance refunding of the Obligations and (ii} an accountant's report with respect to the sufficiency of the
amounts deposited in escrow to defease the Obligations.
F. Agents:
1. In transactions where there is an agent/enhancer (other than the Insurer), the trustee, tender
agent (if any), and paying agent (if any) must be commercial banks with trust powers.
2. The remarketing agent must have trust powers if they are responsible for holding moneys or
receiving bonds. As an alternative, the documents may provide that if the remarketing agent
is removed, resigns or is unable to perform its duties,-the trustee must assume the
responsibilities of remarketing agent until a substitute acceptable to the Insurer is appointed.
mbia
WISDOM IN ACTIONS'"
COMMITMENT TO ISSUE A
DEBT SERVICE RESERVE SURETY BOND
Application No.: 2007-001967-002
Sale Date: September 7, 2007
Program Type: Negotiated DP
RE: $2,444,439.44 Debt Service Reserve Fund for the $24,460,000 (est) City of Delray
Beach, Florida, Utilities Tax Revenue Bonds, Series 2007
(the "Obligations")
This commitment to issue a debt service reserve ,surety bond (the "Commitment")
constitutes an agreement between CITY OF DELRAY BEACH (the "Applicant"), and MBIA
Insurance Corporation (the "Insurer"), a stock insurance company incorporated under the laws of
the State of New York.
Based on an approved application dated March 22, 2007, the Insurer agrees, upon
satisfaction of the conditions herein, to issue on the earlier of (i) 120 days of said approval date
or (ii) on the date of delivery of and payment for the Obligations, a debt service reserve surety
bond (the "Surety Bond"), for the Obligations, guaranteeing the payment to the issuer of up to
$2,444,439.44 on the Obligations. The issuance of the Surety Bond shall be subject to the
following terms and conditions:
1. Payment by the Applicant, or by the Trustee on behalf of the Applicant, on the date
of delivery of and payment for the Obligations, of a nonrefundable premium in the amount of
$43,000 [1.75% (premium rate} of $2,444,439.44 (total surety bond amount), premium rounded
to the nearest thousand]. The premium set out in this paragraph shall be the total premium
required to be paid on the Policy issued pursuant to this Commitment.
2. The Obligations shall have received the unqualified opinion of bond counsel with
respect to the tax-exempt status of interest on the Obligations.
3. There shall have been no material adverse change in the Obligations or the
Resolution, Bond Ordinance, Trust Indenture or other official document authorizing the issuance
of the Obligations or in the final official statement or other similar document, including the
financial statements included therein.
4. There shall have been no material adverse change in any information submitted to
the Insurer as a part of the Application or subsequently submitted to be a part of the Application
to the Insurer.
5. No event shall have occurred which would allow any underwriter or any other
purchaser of the Obligations not to be required to purchase the Obligations at closing.
MBIA Insurance Corporation 113 King Street Armonk, NY 10504 +1 914 273 4545 www.mbia.com
mbia
WISDOM IN ACTIONS
6. Prior to the delivery of and payment for the Obligations, none of the information or
documents submitted as a part of the Application to the Insurer shall be determined to contain
any untrue or misleading statement of a material fact or fail to state a material fact required to be
stated therein or necessary in order to make the statements contained therein not misleading.
7. No material adverse change affecting any security for the Obligations shall have
occurred prior to the delivery of and payment for the Obligations.
8. This Commitment may be signed in counterpart by the parties hereto.
9. Compliance with the Insurer's Term Sheet for Debt Service Reserve Fund Program
(see Attachment A).
Dated this 6th day of September, 2007.
MBIA Insurance Corparatio~
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By 1`~5 ~ s
Cr~t .
CITY OF DELRAY BEACH
By: ~` ~ ~
Title: MAyo2
mbia
WISDOM IN ACT10Nsm
(Attachment A)
TERM SHEET FOR DEBT SERVICE RESERVE FUND PROGRAM
Introduction
The Insurer can, under certain circumstances, issue a debt service reserve fund surety bond
(the "Surety Bond"), to be used as a replacement for a cash funded reserve, in any amount up to
the full amount of the debt service reserve fund requirement.
The Insurer requires that the issuer and/or the underlying obligor of the bonds enter into a
Financial Guaranty Agreement with the Insurer providing for, among other things, the
reimbursement to the Insurer of amounts drawn under the Surety Bond. A sample draft of such
an agreement is attached.
The Insurer will undertake its standard credit analysis of the issuer and/or obligor which
may result in requests for modifications of the structure or certain provisions of the bond
documents. These changes would be in addition to the specific changes required in all
financings where a Surety Bond will be issued (see Required Terms below).
The Surety Bond may be structured to provide debt service reserve fund replacement for the
current issue of bonds and any other debt issued on a parity therewith. However, in all cases, the
Surety Bond will expire on the final maturity date of the current issue.
The program criteria are subject to change by the Insurer.
General Terms
Provision should be made in the bond documents for the creation of a debt service reserve
fund and there should be a requirement to maintain that fund at a certain level. It should also be
provided that this requirement may be satisfied by cash or a qualified surety bond or a
combination of these two (Note: A "qualified surety bond" means a surety bond issued b~ an
insurance company rated in the highest rating_category by Standard & Poor's and Moody's and,
if rated by A M Best & Company must also be rated in the highest rating category by A.M.
Best & Company).
In those instances where the issuance of parity debt will cause the debt service reserve fund
requirement to increase, the Insurer requires that at the time of issuance of such parity debt,
either cash or a qualified surety bond be provided so that the increased requirement will be
satisfied.
In any event where the debt service reserve fund contains both an the Insurer Surety Bond
and cash, the Insurer requires that the cash be drawn down completely before any demand is
made on the Surety Bond. In any event where the debt service reserve fund contains a surety
bond from another entity and an INSURER Surety Bond, the documents should provide for a
pro-rata draw on each of the surety bonds.
MBIA Insurance Corporation 113 King Street Armonk, NY 10504 +1 914 273 4545 www.mbia.com
mbia
WISDOM IN ACTION'"'
With regard to replenishment, any available monies, as defined in the Indenture or
Resolution, should be used first to reimburse the Insurer, thereby reinstating the Surety Bond,
and second to replenish the cash in the debt service reserve fund.
The rate covenant should be expanded so that, in addition to all other coverage requirements,
there are sufficient monies available to pay all amounts owed to the Insurer under the terms of
the Financial Guaranty Agreement.
If the documents provide for the issuance of additional bonds that do not share a common
reserve fund with the current issue, the Insurer can issue a surety bond that is, by its terms,
available only as a reserve for the current issue. In such cases, the Insurer would require a
covenant that any revenues available for debt service must be distributed between the current
issue and any additional bonds on a pro rata basis without regard to the existence of a funded
debt service reserve or a surety bond.
'The bond documents should require the Trustee to deliver a Demand For Payment (see
attached form) at least three days prior to the date on which funds are required.
Required Terms
With respect to any security interest in collateral granted to the bondholders, the Insurer
should be granted that same interest subject only to that of the bondholders. This would apply to
existing security, if any, as well as any to be granted in the future.
The Insurer should receive an opinion from counsel to the issuer/obligor that the Financial
Guaranty Agreement is a legal, valid and binding obligation of the issuer/obligor and is
enforceable against the issuer/obligor in accordance with its terms.
In general terms, the "flow of funds" would be structured as follows:
All gross revenues should be paid in the following order with the priority indicated:
(1) expenses of operation and maintenance;
(2) debt service on the bonds;
(3) reimbursement of amounts advanced by the Insurer under the Surety Bond;
(4) reimbursement of cash amounts, if any, drawn from the reserve fund;
(5) replenishment of Renewal and Replacement Fund;
(6) payment to the Insurer of interest on amounts advanced under the Surety
Bond;
(7) all other lawful uses, including the debt service payment on any subordinate
bonds.
Provision must be made for the Insurer to be paid all amounts owed to it under the terms of
the Financial Guaranty Agreement or any other documents before the bond documents may be
terminated.
mbia
WISDOM IN ACTION`'
It will be the responsibility of the trustee/paying agent to maintain adequate records, verified
with the Insurer, as to the amount available to be drawn at any given time under the Surety Bond
and as to the amounts paid and owing to the Insurer under the terms of the Financial Guaranty
Agreement.
There may be no optional redemption of bonds or distribution of funds to the issuer and/or
the underlying obligor unless all amounts owed to the Insurer under the terms of the Financial
Guaranty Agreement or any other documents have been paid in full.
8/ 12/93
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WISDOM IN ACTIONsm
COMMITMENT TO ISSUE A
FINANCIAL GUARANTY INSURANCE POLICY
Application No.: 2007-001967-001
Sale Date: August 2007 (t)
Program Type: Competitive DP
Re: $25,460,000 (est) City of Delray Beach, Florida, Utilities Tax Revenue Bonds, Series
2007
(the "Obligations"}
This commitment to issue a financial guaranty insurance policy (the "Commitment")
dated March 23, 2007, constitutes an agreement between CITY OF DELRAY BEACH (the
"Applicant") and MBIA Insurance Corporation (the "Insurer"), a stock insurance company
incorporated under the laws of the State of New York.
Based on an approved application dated March 22, 2007, the Insurer agrees, upon
satisfaction of the conditions herein, to issue on the earlier of (i) 120 days of said approval date
or (ii) on the date of delivery of and payment for the Obligations, a financial guaranty insurance
policy (the "Policy") for the Obligations, insuring the payment of principal of and interest on the
Obligations when due. The issuance of the Policy shall be subject to the following terms and
conditions:
1. Payment by the Applicant, or by the Trustee on behalf of the Applicant, on the date
of delivery of and payment for the Obligations, of a nonrefundable premium in the amount of
.25% of total debt service, premium rounded to the nearest thousand. The premium set out in
this paragraph shall be the total premium required to be paid on the Policy issued pursuant to
this Commitment.
2. The Obligations shall have received the unqualified opinion of bond counsel with
respect to the tax-exempt status of interest on the Obligations.
3. There shall have been no material adverse change in the Obligations or the
Resolution, Bond Ordinance, Trust Indenture or other official document authorizing the issuance
of the Obligations or in the final official statement or other similar document, including the
financial statements included therein.
4. There shall have been no material adverse change in any information submitted to
the Insurer as a part of the application or subsequently submitted to be a part of the application
to the Insurer.
5. No event shall have occurred which would allow any underwriter or any other
purchaser of the Obligations not to be required to purchase the Obligations at closing.
6. A Statement of Insurance satisfactory to the Insurer shall be printed on the
Obligations.
MBIA Insurance Corporation 113 Kinq Street Armonk, NY 10504 +1 914 273 4545 www.mbia.com
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WISDOM IN ACTIONS"'
7. Prior to the delivery of and payment for the Obligations, none of the information or
documents submitted as a part of the application to the Insurer shall be determined to contain
any untrue or misleading statement of a material fact or fail to state a material fact required to
be stated therein or necessary in order to make the statements contained therein not misleading.
8. No material adverse change affecting any security for the Obligations shall have
occurred prior to the delivery of and payment for the Obligations.
9. The Insurer's "Payments Under the Policy/Other Required Provisions" (see
attached) shall be included in the authorizing document.
10. The Applicant agrees not to use the Insurer's name in any public document
including, without limitation, a press release or presentation, announcement or forum without the
Insurer's prior consent; provided however, such prohibition on the use of the Insurer's name shall
not relate to the use of the Insurer's standard approved form of disclosure in public documents
issued in connection with the current Obligations to be issued in accordance with the terms of the
Commitment; and provided further such prohibition shall not apply to the use of the Insurer's
name in order to comply with public notice, public meeting or public reporting requirements.
11. This Commitment may be signed in counterpart by the parties hereto.
12. Compliance with the Insurer's General Document Provisions (see attached).
Dated this 27th day of July, 2007.
MBIA Insurance Corporation
~ ~j-~
. • ~~
-=r -A~`sfStant cr
CITY OF DELRAY BEACH
By:
Title: ~\ A v. o ~
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WISDOM IN ACTIONsm
GENERAL DOCUMENT PROVISIONS
A. Notice to the Insurer The basic legal documents must provide that any notices required to be given
by any party should also be given to the Insurer, Attn: Insured Portfolio Management.
B. Amendments. In the basic legal document, there are usually two methods of amendment. The first,
which typically does not require the consent of the bondholders, is for amendments which will cure
ambiguities, correct formal defects or add to the security of the financing. The second, in which
bondholder consent is a prerequisite, covers the more substantive types of amendments. For all
financings, the Insurer must be given notice of any amendments that are of the first type and the
Insurer's consent must be required for all amendments of the second type. All documents must
contain a provision which requires copies of any amendments to such documents which are
consented to by the Insurer to be sent to Standard & Poor's.
C. Supplemental Legal Document. If the basic legal document provides for a supplemental legal
document to be issued for reasons other than (1) a refunding to obtain savings; or (2) the issuance
of additional bonds pursuant to an additional bonds test, there must be a requirement that the
Insurer's consent also be obtained prior to the issuance of any additional bonds and/or execution of
such supplemental legal document.
D. Events of Default and Remedies. All documents normally contain provisions which define the
events of default and which prescribe the remedies that may be exercised upon the occurrence of an
event of default. At a minimum, events of default will be defined as follows:
l . the issuer/obligor fails to pay principal when due;
2. the issuer/obligor fails to pay interest when due;
3. the issuer/obligor fails to observe any other covenant or condition of the document and such
failure continues for 30 days and
4. the issuer/obligor declares bankruptcy.
The Insurer, acting alone, shall have the right to direct all remedies in the event of a default. The Insurer
shall be recognized as the registered owner of each bond which it insures for the purposes of exercising
all rights and privileges available to bondholders. For bonds which it insures, the Insurer shall have the
right to institute any suit, action, or proceeding at law or in equity under the same terms as a bondholder
in accordance with applicable provisions of the governing documents. Other than the usual redemption
provisions, any acceleration of principal payments must be subject to the Insurer's prior written consent.
E. Defeasance requires the deposit of:
1. Cash
2. U.S. Treasury Certificates, Notes and Bonds (including State and Local Government
Series -- " SLGs")
Direct obligations of the Treasury which have been stripped by the Treasury itself, CATS,
TIGRS and similar securities
MBIA Insurance Corporation 113 Kinq Street Armonk, NY 10504 +1 914 273 4545 www.mbia.com
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WISDOM IN ACTION'"
4. Resolution Funding Corp. (REFCORP) Only the interest component of REFCORP strips
which have been stripped by request to the Federal Reserve Bank of New York in book entry
form are acceptable.
5. Pre-refunded municipal bonds rated "Aaa" by Moody's and "AAA" by S&P. If however, the
issue is only rated by S&P (i.e., there is no Moody's rating), then the pre-refunded bonds must
have been pre-refunded with cash, direct U.S. or U.S. guaranteed obligations, or AAA rated
pre-refunded municipals to satisfy this condition.
6. Obligations issued by the following agencies which are backed by the full faith and credit of
the U.S.
a. U.S. Export-Import Bank (Eximbank)
Direct obligations or fully guaranteed certificates of beneficial ownership
b. Farmers Home Administration (FmHA)
Certificates of beneficial ownership
c. Federal Financing Bank
d. General Services Administration
Participation certificates
e. U.S. Maritime Administration
Guaranteed Title XI financing
f U.S. Department of Housing and Urban DeveloRment (HUD)
Project Notes
Local Authority Bonds
New Communities Debentures - U.S. government guaranteed debentures
U.S. Public Housing Notes and Bonds - U.S. government guaranteed public housing
notes and bonds
The Insurer shall be provided with an opinion of counsel acceptable to the Insurer that the Obligations
have been legally defeased and that the escrow agreement establishing such defeasance operates to legally
defease the Obligations within the meaning of the Indenture and the Supplemental Indenture relating to
the Obligations. In addition, the Insurer will be entitled to receive (i) I S business days notice of any
advance refunding of the Obligations and (ii) an accountant's report with respect to the sufficiency of the
amounts deposited in escrow to defease the Obligations.
F. Agents:
1. In transactions where there is an agent/enhancer (other than the Insurer), the trustee, tender
agent (if any), and paying agent (if any) must be commercial banks with trust powers.
2. The remarketing agent must have trust powers if they are responsible for holding moneys or
receiving bonds. As an alternative, the documents may provide that if the remarketing agent
is removed, resigns or is unable to perform its duties, the trustee must assume the
responsibilities of remarketing agent until a substitute acceptable to the Insurer is appointed.
mbia
WISDOM IN ACTIONsm
COMMITMENT TO ISSUE A
DEBT SERVICE RESERVE SURETY BOND
Application No.: 2007-001967-002
Sale Date: August 2007 (t)
Program Type: Negotiated DP
RE: $3,700,000 (est) Debt Service Reserve Fund for the $24,460,000 (est) City of Delray
Beach, Florida, Utilities Tax Revenue Bonds, Series 2007
(the "Obligations")
This commitment to issue a debt service reserve surety bond (the "Commitment")
constitutes an agreement between CITY OF DELRAY BEACH (the "Applicant"), and MBIA
Insurance Corporation (the "Insurer"), a stock insurance company incorporated under the laws of
the State of New York.
Based on an approved application dated March 22, 2007, the Insurer agrees, upon
satisfaction of the conditions herein, to issue on the earlier of (i) 120 days of said approval date
or (ii) on the date of delivery of and payment for the Obligations, a debt service reserve surety
bond (the "Surety Bond"), for the Obligations, guaranteeing the payment to the issuer of up to
$3,700,000 (est) on the Obligations. The issuance of the Surety Bond shall be subject to the
following terms and conditions:
1. Payment by the Applicant, or by the Trustee on behalf of the Applicant, on the date
of delivery of and payment for the Obligations, of a nonrefundable premium in the amount of
1.75% of total surety bond amount, premium rounded to the nearest thousand. The premium set
out in this paragraph shall be the total premium required to be paid on the Policy issued pursuant
to this Commitment.
2. The Obligations shall have received the unqualified opinion of bond counsel with
respect to the tax-exempt status of interest on the Obligations.
3. There shall have been no material adverse change in the Obligations or the
Resolution, Bond Ordinance, Trust Indenture or other official document authorizing the issuance
of the Obligations or in the final official statement or other similar document, including the
financial statements included therein.
4. There shall have been no material adverse change in any information submitted to
the Insurer as a part of the Application or subsequently submitted to be a part of the Application
to the Insurer.
5. No event shall have occurred which would allow any underwriter or any other
purchaser of the Obligations not to be required to purchase the Obligations at closing.
MBIA Insurance Corporation 113 King Street Armonk, NY 10504 +1 914 273 4545 www.mbia.com
Lmbia
WISDOM IN ACTIONsm
6. Prior to the delivery of and payment for the Obligations, none of the information or
documents submitted as a part of the Application to the Insurer shall be determined to contain
any untrue or misleading statement of a material fact or fail to state a material fact required to be
stated therein or necessary in order to make the statements contained therein not misleading.
7. No material adverse change affecting any security for the Obligations shall have
occurred prior to the delivery of and payment for the Obligations.
This Commitment may be signed in counterpart by the parties hereto.
9. Compliance with the Insurer's Term Sheet for Debt Service Reserve Fund Program
(see Attachment A).
Dated this 23rd day of March, 2007.
MB surance oration
`~n' ' sly ant S `'retar ~•
CITY OF DELRAY BEACH
,,,~-~~oo,A
~'
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WISDOM IN ACTIONsm
(Attachment A)
TERM SHEET FOR DEBT SERVICE RESERVE FUND PROGRAM
Introduction
The Insurer can, under certain circumstances, issue a debt service reserve fund surety bond
(the "Surety Bond"), to be used as a replacement for a cash funded reserve, in any amount up to
the full amount of the debt service reserve fund requirement.
The Insurer requires that the issuer and/or the underlying obligor of the bonds enter into a
Financial Guaranty Agreement with the Insurer providing for, among other things, the
reimbursement to the Insurer of amounts drawn under the Surety Bond. A sample draft of such
an agreement is attached.
The Insurer will undertake its standard credit analysis of the issuer and/or obligor which
may result in requests for modifications of the structure or certain provisions of the bond
documents. These changes would be in addition to the specific changes required in all
financings where a Surety Bond will be issued (see Required Terms below).
The Surety Bond may be structured to provide debt service reserve fund replacement for the
current issue of bonds and any other debt issued on a parity therewith. However, in all cases, the
Surety Bond will expire on the final maturity date of the current issue.
The program criteria are subject to change by the Insurer.
General Terms
Provision should be made in the bond documents for the creation of a debt service reserve
fund and there should be a requirement to maintain that fund at a certain level. It should also be
provided that this requirement may be satisfied by cash or a qualified surety bond or a
combination of these two (Note: A "q_ualified surety bond" means a surety bond issued bean
insurance company rated in the highest rating_category by Standard & Poor's and Moody's and,
if rated by A.M. Best & Company, must also be rated in the highest rating categor~~AM.
Best & CompanX}.
In those instances where the issuance of parity debt will cause the debt service reserve fund
requirement to increase, the Insurer requires that at the time of issuance of such parity debt,
either cash or a qualified surety bond be provided so that the increased requirement will be
satisfied.
In any event where the debt service reserve fund contains both an the Insurer Surety Bond
and cash, the Insurer requires that the cash be drawn down completely before any demand is
made on the Surety Bond. In any event where the debt service reserve fund contains a surety
bond from another entity and an INSURER Surety Bond, the documents should provide for a
pro-rata draw on each of the surety bonds.
MBIA Insurance Corporation 113 King Street Armonk, NY 10504 +1 914 273 4545 www.mbia.com
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WISDOM IN ACTIONsm
With regard to replenishment, any available monies, as defined in the Indenture or
Resolution, should be used first to reimburse the Insurer, thereby reinstating the Surety Bond,
and second to replenish the cash in the debt service reserve fund.
The rate covenant should be expanded so that, in addition to all other coverage requirements,
there are sufficient monies available to pay all amounts owed to the Insurer under the terms of
the Financial Guaranty Agreement.
If the documents provide for the issuance of additional bonds that do not share a common
reserve fund with the current issue, the Insurer can issue a surety bond that is, by its terms,
available only as a reserve for the current issue. In such cases, the Insurer would require a
covenant that any revenues available for debt service must be distributed between the current
issue and any additional bonds on a pro rata basis without regard to the existence of a funded
debt service reserve or a surety bond.
The bond documents should require the Trustee to deliver a Demand For Payment (see
attached form) at least three days prior to the date on which funds are required.
Required Terms
With respect to any security interest in collateral granted to the bondholders, the Insurer
should be granted that same interest subject only to that of the bondholders. This would apply to
existing security, if any, as well as any to be granted in the future.
The Insurer should receive an opinion from counsel to the issuer/obligor that the Financial
Guaranty Agreement is a legal, valid and binding obligation of the issuer/obligor and is
enforceable against the issuer/obligor in accordance with its terms.
In general terms, the "flow of funds" would be structured as follows:
All gross revenues should be paid in the following order with the priority indicated:
(1) expenses of operation and maintenance;
(2) debt service on the bonds;
(3) reimbursement of amounts advanced by the Insurer under the Surety Bond;
(4) reimbursement of cash amounts, if any, drawn from the reserve fund;
(5) replenishment of Renewal and Replacement Fund;
(6) payment to the Insurer of interest on amounts advanced under the Surety
Bond;
(7) all other lawful uses, including the debt service payment on any subordinate
bonds.
Provision must be made for the Insurer to be paid all amounts owed to it under the terms of
the Financial Guaranty Agreement or any other documents before the bond documents may be
terminated.
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WISDOM IN ACTIONsm
It will be the responsibility of the trustee/paying agent to maintain adequate records, verified
with the Insurer, as to the amount available to be drawn at any given time under the Surety Bond
and as to the amounts paid and owing to the Insurer under the terms of the Financial Guaranty
Agreement.
There may be no optional redemption of bonds or distribution of funds to the issuer and/or
the underlying obligor unless all amounts owed to the Insurer under the terms of the Financial
Guaranty Agreement or any other documents have been paid in full.
8/ 12/93
MEMORANDUM
TO: MAYOR AND CITY COMMISSIONERS
FROM: REBECCA S. O'CONNOR, TREASURER
THROUGH: CITY MANAGER ~~/" I
DATE: AUGUST 15, 2007 C~
SUBJECT: AGENDA ITEM # 1 ~ - R]
2007 UTILITY TAX BOND ISSUE
ITEM BEFORE COMMISSION
Approve Resolution# 21-07 authorizing the sale of City of Delray Beach Utility Tax Revenue
Bonds, Series 2007 in the principal amount of not to exceed $27,000,000.
BACKGROUND
In a prior Commission meeting, capital improvements projects were approved totaling
approximately $25,000,000 (see attached schedule} with the funding to come from the issuance of
utility tax bonds. Resolution # 21-07 authorizes the issuance of not to exceed $27,000,000 in bonds
and sets forth the terms and details. A "not to exceed" amount of $27,000,000 will provide for
$25,000,000 in construction proceeds, issuance costs, and also allows the bonds to be sold at a
premium or discount to assist in the marketing of the bonds. The exact sizing of the bond issue will
occur on the date of sale.
FUNDING SOURCE
N/A
RECONIlVIENDATION
Recommend approving Resolution # 21-07 authorizing the sale of Delray Beach Utility Tax
Revenue Bonds.
CITY OF DELRAY BEACH
PROPOSED UTILITY TAX BOND ISSUE
General Obligation Bond Fund (380):
Neighboitrood Park -Land
Neighbort-ood Park - Construction
Soccer Complex
Bexley Park
Boy Scout Hut Park
Lake Ida Park
Comep Park
Pompey Paric/Comm Ctr Connection
Beach Park Improvements
Other Park Improvements
Westem Community Center -Land
Westem Community Center
Catherine Strong Park
Swim and Tennis Club Center
Pompey Park Center Expansion
Old School Square Park and Garage (1)
Library Furnishings
General Construction Fund (334)=
ESD Building (2)
City Hall Expansion -Info Tech Bldg.
City Hall Expansion - N. Wing 8 Chamber
Intracoastal Park, Ramp (3)
Replacement of Fire Station #4
Old School Square Park Improvemenrts
Miller Park Improvement (5)
Stormwater wnd (448):
Storm Retention - Auburn Trace
Contingency
Total Funding Needed for Construction
Taxable LOC - OSS Pkg Gar (4)
Juty 25, 2007
Original Other Current Current Funding
Budget Sources Funding Requirement Needed
3,375,000 - 3,375,000 1,834,750 (1,540,250)
900,000 200,000 1,100,000 1,280,000 180,000
2,725,000 2,725,000 2,800,000 75,000
500,000 200,000 700,000 700.000 -
350,000 200,000 550,000 696,811 146,811
425,000 300,000 725,000 911,630 186,630
150,000 - 150,000 269,200 119,200
300,000 - 300,000 300,000 -
75,000 - 75,000 67,000 (8,000)
200,000 - 200,000 1n,s7o (22,13x)
800,000 3,000,000 3,800,000 3,940,000 140,000
3,000,000 (3.000.000) - 1.650,000 1,650,000
2,000,000 - 2,000,000 2,035,089 35.089
700,000 - 700,000 870,003 170,003
500.000 - 500,000 1,250,000 750,000
7,0x0,000 10,383,005 17,383,005 27,046,505 9,663,500
1,000,000 56,643 1,056,643 1,056,643 -
24,000,000 11,339,648 35,339,648 46,885,501 11,545,853
2,971,900 2,971,900 2,971,900 3,471,900 500,000
974,400 - - - -
672,000 - - - -
1,000,000 1,411,420 1,411,420 2,411,420 1,000,0x0
2,723,500 - - 3,700,000 3,700,000
2,700,000 500,000 500,000 1,200,000 700,000
4,500,000 550,000 550,000 5.700,000 5,150,OOx
15,541,800 5,433,320 5,433,320 16,483,320 11,050,000
1,000,000 1,000,000
_ 1,287,500
u,ss3,3s3
5,000,000 5,000,000 5,000,000 5,x00,000
(1) The increase is primarily due to the fad that we arnidpated receiving 56.560,000 (t6,400 sq ft x
$400/sq ft.). We now anticipate 53,690,000 (16,400 sq ft x 5225/sq ft) in proceeds.
(2) The original budget amount of 52,971,900 iss aocamted fior in the Water and Sewer Fund. The
revised budget is 53,471,000. The variance (3500,000) wia be accounted for in the General Fund.
(3) Currentty in discussion with PBCO with rasped to grant participation.
(4) The Taxable L'me of Credit will be paid aff with sale proceeds from the retail portion of the garage.
(5) 3300,01X) Mirada League, 3250,000 County
MEMORANDUM
To: David T. Harden, City Manager
From: ~ 6? ~ Rebecca S. O'Connor, Treasurer
Thru: ~.- Joseph M. Saffori~`ctor of Finance
Subject: Proposed $27,000,000 Utility Tax Revenue Bonds
Date: August 15, 2007
We have attached for Commission approval Resolution# 21-07 relative to the issuance of
proposed Utility Tax Bonds. These documents have been reviewed by our bond counsel, Steve
Sanford of Greenberg Traurig, P.A. and our financial advisor, Jay Gbver of Public Financial
Management. The resolution provides for the following:
• Authorizes the issuance of Utility Tax Bonds in an amount not to exceed $27,000,000 for
the purpose of financing and refinancing municipal projects to include certain parks and
recreation projects, the ESD building, in part, and the Old School Parking Garage and
Improvements;
• Amends Resolution # 991 (the "Original Resolution") to provide for the pledge of the
City's communication service tax for all bonds issued under Resolution # 98-91;
• Determines certain details of the bonds;
• Appoints Bear, Steams & Company, Inc. as the underwriter and approves the form of,
and authorizes the execution and delivery of a bond purchase agreement to effect the
sale of bonds;
• Sets the parameters by which the Mayor or V'~ce-Mayor shall be authored to execute the
bond purchase agreement (bonds will not be issued if the true interest cost is greater than
5.5%, the underwriting discount wil! not be greater than $6.00/$1,000 of the principal
amount of the bonds, and the term will no# exterxi beyond June 1, 2032);
• Appoints Commeroe Bank, National Association as the paying agent and registrar and
approves the form of, and authorizes the execution and delivery of a paying agent and
registrar agreement;
• Authorises the registration of the bonds under the book entry system;
• Approves the form of and authorizes the execution of an official statement relative to the
bonds and authorizes the distribution of a preliminary official statement and the off~ial
statement by the underwriter,
• Authorizes a bond insurance policy to be provided by MBIA Insurance Corporation;
authorizes the execution of a financial guaranty agreement relative to the issuance of a
surety bond by MBIA Provides for the undertaking by the City with respect to secondary
market disclosure;
• Authorizes proper officials of the City to do aN other things deemed necessary as to the
sale of the bonds, and
• Provides for an effective date.
The "not to exceed" par amount of $27,000,000 will provide for approximately $25,000,000 in
construction proceeds, issuance costs, and also allows the bonds to be solo at a premium or
discount to assist in the marketing of the bonds. The Finance Department recommends approval
of this resolution.
c: R.S. O'Connor, Treasurer
File: agenda/07 util tax bonds.doc
RESOLUTION NO. R-21-07
CITY OF DELRAY BEACH, FLORIDA
Utilities Tax Revenue Bonds, Series 2007
Utilities Tax Revenue Bond Resolution
Adopted August 21, 2007
Resolution No. R-21-07
WPB/381649602v1&/0l6787.011900
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS ..................................................................................................5
SECTION 2. AUTHORIZATION, PURPOSE AND BOND DESIGNATION ................... ..6
SECTION 3. TERMS AND DETAILS OF BONDS ............................................................ ..7
SECTION 4. APPLICATION OF BOND PROCEEDS ....................................................... ..7
SECTION 5. COVENANTS OF THE CITY ........................................................................ 10
SECTION 6. RULE 15C2-12 UNDERTAKING .................................................................. 10
SECTION 7. REDEMPTION PROVISIONS ....................................................................... 15
SECTION 8. NEGOTIATED SALE ................................................................................... 17
SECTION 9. APPOINTMENT OF UNDERWRITER ......................................................... 18
SECTION 10. PARAMETERS FOR THE SALE OF THE BONDS ..................................... 18
SECTION 11. PRELIMINARY AND OFFICIAL STATEMENT ........................................ 19
SECTION 12. PAYING AGENT AND REGISTRAR ........................................................... 20
SECTION 13. BOOK ENTRY BONDS ................................................................................. 20
SECTION 14. BOND INSURANCE POLICY AND RESERVE POLICY ........................... 20
SECTION 15. FINANCIAL GUARANTY AGREEMENT ................................................... 21
SECTION 16. AMENDMENTS AND SUPPLEMENTS TO ORIGINAL RESOLUTION.. 21
SECTION 17. PAYMENT PROCEDURES UNDER THE BOND INSURANCE POLICY 22
SECTION 18. SEVERABILITY OF INVALID PROVISIONS ............................................ 27
SECTION 19. FURTHER AUTHORIZATIONS; RATIFICATION OF PRIOR ACTS....... 27
SECTION 20. REPEALER ..................................................................................................... 28
SECTION 21. EFFECTIVE DATE ........................................................................................ 28
i Resolution No. R-21-07
WPB/381649602v16/016787.011900
RESOLUTION NO. R-21-07
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
DELRAY BEACH, FLORIDA, AUTHORIZING THE NEGOTIATED
SALE OF CITY OF DELRAY BEACH, FLORIDA, UTILITIES TAX
REVENUE BONDS, SERIES 2007 (THE "BONDS"), IN THE INITIAL
AGGREGATE PRINCIPAL AMOUNT OF NOT EXCEEDING $27,000,000
FOR THE PURPOSE OF FINANCING AND REFINANCING CERTAIN
MUNICIPAL PROJECTS WITHIN THE CITY; AMENDING
RESOLUTION NO. R-98-91 (THE "ORIGINAL RESOLUTION") TO
PROVIDE FOR THE PLEDGE OF THE CITY'S COMMUNICATIONS
SERVICES TAX FOR ALL BONDS ISSUED UNDER THE ORIGINAL
RESOLUTION; DETERMINING CERTAIN DETAILS OF THE BONDS;
APPOINTING AN UNDERWRITER; PROVIDING FOR THE
APPLICATION OF THE BOND PROCEEDS; APPROVING THE FORM
OF, AND AUTHORIZING THE EXECUTION AND DELIVERY OF A
BOND PURCHASE AGREEMENT TO EFFECT THE NEGOTIATED
SALE OF THE BONDS AND SETTING THE PARAMETERS BY WHICH
THE MAYOR OR VICE MAYOR SHALL BE AUTHORIZED TO
EXECUTE AND DELIVER THE BOND PURCHASE AGREEMENT;
APPOINTING A PAYING AGENT AND BOND REGISTRAR;
AUTHORIZING THE REGISTRATION OF THE BONDS UNDER A
BOOK-ENTRY SYSTEM; APPROVING THE FORM OF AND
AUTHORIZING THE EXECUTION AND DELIVERY OF AN OFFICIAL
STATEMENT IN CONNECTION WITH THE OFFERING AND SALE OF
THE BONDS AND AUTHORIZING THE DISTRIBUTION OF THE
PRELIMINARY OFFICIAL STATEMENT AND THE OFFICIAL
STATEMENT BY THE UNDERWRITER; APPROVING THE FORM OF
AND AUTHORIZING THE EXECUTION AND DELIVERY OF A
PAYING AGENT AND REGISTRAR AGREEMENT RELATING TO THE
BONDS; PROVIDING FOR A BOND INSURANCE POLICY FOR THE
BONDS PROVIDED BY MBIA INSURANCE CORPORATION AND
AUTHORIZING AND AGREEING TO ANY NECESSARY
SUPPLEMENTS OR AMENDMENTS TO THE ORIGINAL
RESOLUTION IN CONNECTION THEREWITH; IF APPLICABLE,
APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION
AND DELIVERY OF A FINANCIAL GUARANTY AGREEMENT IN
CONNECTION WITH THE ISSUANCE OF A SURETY BOND BY MBIA
INSURANCE CORPORATION; PROVIDING FOR THE UNDERTAKING
BY THE CITY REGARDING SECONDARY MARKET DISCLOSURE AS
REQUIRED BY RULE 15c2-12 OF THE SECURITIES AND EXCHANGE
COMMISSION; AUTHORIZING THE PROPER OFFICERS OF THE
CITY TO DO ALL OTHER THINGS DEEMED NECESSARY OR
ADVISABLE AS TO THE SALE AND DELIVERY OF THE BONDS; AND
PROVIDING FOR AN EFFECTIVE DATE.
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WHEREAS, the City Commission (the "Commission") of the City of Delray
Beach, Florida (the "City") did, on December 3, 1991, adopt Resolution No. 98-91, as amended
and supplemented (herein, the "Original Resolution"), for the purpose, among other things, of
authorizing the issuance from time to time of Utilities Tax Revenue Bonds to finance and
refinance municipal projects; and
WHEREAS, any term not otherwise defined in this Resolution shall have the
meaning ascribed to such term in the Bond Resolution (as defined below); and
WHEREAS, on the date of adoption of this Resolution, the City has now
outstanding its Utilities Tax Revenue Refunding Bonds, Series 2002 in the aggregate principal
amount of $6,730,000 (herein, the "2002 Bonds") issued pursuant to the terms and provisions of
the Original Resolution and Resolution No. R-90-02 (the "2002 Resolution"); and
WHEREAS, pursuant to the terms and provisions of the 2002 Resolution, the
Original Resolution was amended and supplemented in certain respects (the Original Resolution,
as amended and supplemented by the 2002 Resolution is herein referred to as the "Bond
Resolution"); and
WHEREAS, pursuant to the terms and provisions of the Bond Resolution, the
2002 Bonds and other Bonds issued pursuant to Article III, Section 4.G. of the Original
Resolution are secured by a pledge of the City's Utilities Tax which is defined to include the tax
imposed by the City on each and every purchase in the City of electricity, and metered and
bottled gas (natural liquefied petroleum gas or manufactured); and
WHEREAS, effective October 1, 2001, the Legislature of the State of Florida (i)
repealed the authorization for the levy by municipalities, including the City, of the public service
tax on telecommunications services, and (ii) instead, authorized the implementation of a
2 Resolution No. R-21-07
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communications services tax pursuant to the provisions of Chapter 202, Florida Statute, as
amended and supplemented (herein, the "Communications Services Tax"); and
WHEREAS, the Commission hereby determines it would be in the best economic
interest of the City to amend the definition of Utilities Tax to include the portion of the
Communications Services Tax received by the City each month, so that the 2002 Bonds, the
Bonds (as defined below) and any other bonds issued under Article III, Section 4.G of the
Original Resolution shall also be secured by such tax; and
WHEREAS, pursuant to Article III, Section 4.G of the Original Resolution, the
Commission hereby determines it to be in the best economic interest of the City to finance and
refinance certain municipal projects more particularly described on Exhibit A attached hereto
(the "2007 Projects") through the issuance of its not to exceed $27,000,000 in initial aggregate
principal amount of Utilities Tax Revenue Bonds, Series 2007 (herein, the "Bonds"); and
WHEREAS, effective July 3, 1995, Rule 15c2-12 of the Securities and Exchange
Commission (the "Rule"), provides that it is unlawful for a broker dealer or municipal securities
dealer to purchase or sell municipal securities, which includes the Bonds, unless the issuer,
which includes the City, has undertaken in a written agreement (herein, the "Undertaking") to
provide to specified information repositories annual financial information and operating data
relevant to the municipal securities and notice of certain specified material events; and
WHEREAS, the Commission hereby determines to provide its Undertaking with
respect to the Bonds in this Resolution; and
WHEREAS, subject to the terms and conditions of this Resolution, the City will
enter into a Bond Purchase Agreement with Bear, Stearns & Co. Inc., hereby designated by the
Commission to be the underwriter of the Bonds (herein the "Underwriter"), setting forth the
3 Resolution No. R-21-07
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terms and conditions of the City's agreement to sell and the Underwriter's agreement to purchase
the Bonds, in substantially the form attached hereto as Exhibit B (herein, the "Purchase
Contract"); and
WHEREAS, based upon current market conditions, the complex nature of the
financing, the need to issue the Bonds upon the most favorable market conditions and the advice
of the City's financial advisor, the Commission hereby finds it is necessary and advisable to
negotiate the sale of the Bonds; and
WHEREAS, the Commission hereby determines that it is in the best interest of
the City to accept the Purchase Contract and to award the Bonds to the Underwriter pursuant to a
negotiated sale and pursuant to the parameters set forth in Section 10 herein; and
WHEREAS, the City will be, prior to the execution of the Purchase Contract,
provided by the Underwriter with the disclosure statements required by Section 218.385, Florida
Statutes, a copy of which is attached as an exhibit to the Purchase Contract; and
WHEREAS, there have been also prepared and submitted to the Commission a
draft Preliminary Official Statement, attached hereto as Exhibit C.
WHEREAS, the City's financial advisor has recommended in a letter, attached
hereto as Exhibit D, that the principal and interest on the Bonds be insured by a financial
guaranty insurance policy (the "Bond Insurance Policy") to be issued by MBIA Insurance
Corporation (the "Bond Insurer") pursuant to the terms and provisions of the commitment of
such Bond Insurer to provide the Bond Insurance Policy attached hereto as Exhibit E (herein, the
"Commitment") and that, subject to the final pricing of the Bonds, in lieu of any required
deposits into the Debt Service Reserve Account for the Bonds, a Reserve Account Credit Facility
Substitute, in the form of a surety bond to be issued by the Bond Insurer (herein, the "Reserve
4 Resolution No. R-21-07
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Policy") will be provided with the coverage which will be equal to the Debt Service Reserve
Requirement for the Bonds as evidenced by the Commitment; and
WHEREAS, the Commission has been advised that as a condition for the City to
receive the Reserve Policy from the Bond Insurer, it is necessary for the City to enter into a
reimbursement agreement with the Bond Insurer (herein, the "Financial Guaranty Agreement"),
the form of which is attached hereto as Exhibit F; and
WHEREAS, the Commission hereby adopts the recommendations of the City's
financial advisor regarding the Bond Insurance Policy and, subject to final pricing of the Bonds,
the Reserve Policy; and
WHEREAS, as a condition of obtaining the Bond Insurance Policy and Reserve
Policy, if any, for the Bonds, the Commission has been advised that it is necessary to amend
and/or supplement the Bond Resolution and the Commission hereby determines that agreeing to
any such amendments and/or supplements is in the best interest of the City.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION
OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS:
SECTION 1. DEFINITIONS. That, except as provided below, all capitalized terms
used in this Resolution not otherwise defined shall have the meanings ascribed to such terms in
the Bond Resolution, unless the context clearly indicates otherwise.
A. "Beneficial Owner" shall mean, for purposes of Section 6 of this
Resolution only, any person which (i) has the power, directly or indirectly, to vote or consent
with respect to, or to dispose of ownership of, any Bonds (including persons holding Bonds
through nominees, depositories or other intermediaries), or (ii) is treated as the owner of any
Bonds for federal income tax purposes.
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B. "Communications Services Tax" shall mean the tax the City receives on
communication services pursuant to the provisions of the Communications Services Tax
Simplification Law codified as Chapter 202, Florida Statutes, as amended and supplemented.
C. "NRMSIR" shall mean each nationally recognized municipal securities
information repository designated from time to time by the SEC in accordance with the Rule. A
list of the names and addresses of all designated NRMSIRs and any SID (as herein defined) as of
any date may currently be obtained by calling the SEC's Fax on Demand Service from a fax
machine at (202) 942-8088 and requesting document numbers 0206 and 0207, respectively, or by
visiting the SEC's web site at "http://www.sec.gov/info/municipal/nrmsir.htm."
D. "Tax Certificate" shall mean the Arbitrage Certificate executed by the City
on the date of initial issuance and delivery of the Bonds, as such Tax Certificate may be amended
from time to time, a source of guidance for achieving compliance with the Code.
E. "Utilities Tax" shall mean the tax imposed by the City on each and every
purchase in the City of electricity, metered and bottled gas (natural liquefied petroleum gas or
manufactured) and the Communications Services Tax. Said term shall also apply to all taxes
imposed by the City on the purchase of utility services other than water and communication
services, whether levied in the amounts prescribed by the Utilities Tax Ordinance or in any other
amounts and whether imposed on the purchase of the same utilities services or any other or
additional utilities services, by amendment to the Utilities Tax Ordinance or such other
resolution or ordinance of the City. This definition shall be applicable to the Bonds and all a~ri
nassu additional bonds issued pursuant to Article III, Section 4.G of the Original Resolution.
SECTION 2. AUTHORIZATION, PURPOSE AND BOND DESIGNATION.
That the City hereby determines at this time (i) to issue not exceeding $27,000,000 in the initial
6 Resolution No. R-21-07
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aggregate principal amount of its Bonds for the purpose of (a) financing and refinancing certain
municipal projects within the City as more particularly described on Exhibit A attached hereto
(the "2007 Projects"), (b) to pay the costs of issuance of the Bonds, including paying the
premium for the Bond Insurance Policy and, if applicable, the Reserve Policy, and (ii) to
designate such Bonds as its "Utilities Tax Revenue Bonds, Series 2007" (herein, the "Bonds")
SECTION 3. TERMS AND DETAILS OF BONDS. The terms and details of the
Bonds, including but not limited to the principal amounts, interest rates, maturity dates and
redemption provisions, shall be determined by the Mayor or Vice Mayor in accordance with the
parameters set forth in Section 10 herein. The form of the Bonds shall be substantially in the
form set forth in the Original Resolution with such variations as are necessary to conform to the
final terms of the Bonds.
SECTION 4. APPLICATION OF BOND PROCEEDS. All moneys received by
the City from the sale of the Bonds originally authorized and issued pursuant to this Resolution,
shall be disbursed as follows:
A. The accrued interest, if any, derived from the sale of the Bonds, shall be
deposited into the Interest Account, created and established under the Bond Resolution and
continued hereunder, and used for the purpose of paying interest on the Bonds, as the same
becomes due and payable.
B. There is hereby created and established in the Acquisition/Construction
Fund created and established under the Original Resolution, a separate line item to be known as
the "2007 Cost of Issuance Cost Center," into which shall be deposited an amount of the
proceeds of the Bonds sufficient to pay the costs of issuance of the Bonds, including, but not
limited to, payment of the premium for the Bond Insurance Policy and, if applicable, the
7 Resolution No. R-21-07
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payment of the premium for the Reserve Policy. The City is hereby authorized to permit the
Underwriter to pay directly to the Bond Insurer, from the net proceeds of the Bonds, the cost of
the Bond Insurance Policy and Reserve Policy, if any. If, for any reason, any of the moneys
allocated to the 2007 Cost of Issuance Cost Center, are not necessary for or are not applied to
pay the costs of issuing the Bonds, then such surplus proceeds shall be deposited into the
Acquisition/Construction Fund to be used to finance the 2007 Projects.
C. Unless, upon the advice of the City's financial advisor, the Debt Service
Reserve Requirement shall be satisfied with a Reserve Account Credit Facility Substitute in the
form of the Reserve Policy, from the proceeds of the Bonds there shall be deposited in the Debt
Service Reserve Account in the Sinking Fund, an amount equal to the Debt Service Reserve
Requirement for the Bonds, which requirement shall be determined at the time of the award of
the Bonds.
D. The balance of the proceeds derived from the sale of the Bonds shall be
deposited into the Acquisition/Construction Fund created and established under the Original
Resolution. If, for any reason, the moneys in the Acquisition/Construction Fund, or any part
thereof, are not necessary for or are not applied to the purposes of the 2007 Projects, then such
surplus proceeds shall be deposited, upon certification of the City Manager, other than amounts
allocated to the 2007 Cost of Issuance Cost Center, that such surplus proceeds are not needed for
the purposes of the Acquisition/Construction Fund, in the following order:
First, to the Debt Service Reserve Account in the Sinking Fund created and
established for the Bonds, to the full extent necessary, either to reinstate the Reserve Account
Credit Facility Substitute on deposit therein relating to the Bonds, or, to deposit additional
8 Resolution No. R-21-07
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moneys so that such deposit, together with such moneys already on deposit therein, equal the
Debt Service Reserve Requirement for the Bonds;
Second, to the Interest Account, Principal Account or Bond Redemption Account
in the amounts, if any, determined by subsequent proceedings of the Commission; and
Third, the balance, if any, to be used by the City for any capital project of the
City.
The moneys deposited in the Acquisition/Construction Fund may, pending their
use for the purposes provided in this Resolution, be temporarily invested in Permitted
Investments maturing not later than the dates on which such moneys will be needed for the
purposes of the Acquisition/Construction Fund. Subject to the provisions of the Code and the
Tax Certificate, all the earnings and investment income from such investments shall remain in
and become a part of said Acquisition/Construction Fund and be used for the purposes of the
Acquisition/Construction Fund.
Any moneys received by the City from the State or from Palm Beach County,
Florida (the "County"), or from the United States of America or any agencies thereof for the
purpose of financing any of the 2007 Projects, may be deposited in the Acquisition/Construction
Fund and used in the same manner as other Bond proceeds are used therein; provided, however,
that such moneys shall not be so deposited in the event and to the extent that the City has
incurred debt in anticipation of the receipt of such moneys; and provided further, that separate
accounts may be established in the Acquisition/Construction Fund for moneys received pursuant
to the provisions of this paragraph whenever required by Federal or State or County regulations.
The proceeds of the sale of the Bonds shall be and constitute trust funds for the
purposes hereinabove provided, and there is hereby created a lien upon such moneys, until so
9 Resolution No. R-21-07
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applied, in favor of the Holders of the Bonds, except that the lien on the moneys or securities or
any moneys derived from any Reserve Account Credit Facility Substitute on deposit in a Debt
Service Reserve Account, created and established under the Original Resolution for the Bonds,
shall only be for the benefit of the Bonds.
SECTION 5. COVENANTS OF THE CITY. Except as provided herein, the Bonds
authorized by this Resolution shall be deemed to have been issued pursuant to the Bond
Resolution (to which this Resolution is supplemental) and all of the covenants and agreements
contained in the Bond Resolution shall be deemed to have been made for the benefit of the
Owners of the Bonds issued pursuant to this Resolution.
The Sinking Fund, the Principal Account, the Interest Account, the Bond
Redemption Account therein and each Debt Service Reserve Account, all created and established
under the Original Resolution, shall be continued and maintained as provided in the Original
Resolution as long as any of the Bonds, issued pursuant to the terms and provisions of the Bond
Resolution and this Resolution, are Outstanding.
SECTION 6. RULE 15C2-12 UNDERTAKING. That in order to assist the initial
purchasers of the Bonds with respect to compliance with the Rule, the City undertakes and
agrees to provide the information described below to the persons so indicated. The City's
Undertaking set forth in this Section 6 shall be for the benefit of the registered owners and
Beneficial Owners of the Bonds.
A. The City undertakes and agrees to provide to each NRMSIR and to the
State of Florida information depository (herein, the "SID") if and when such a SID is created (i)
the City's general purpose financial statements generally consistent with the financial statements
presented in Appendix B to the official statement relating to the Bonds (herein the "Official
10 Resolution No. R-21-07
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Statement"), and (ii) the information concerning the Utilities Tax collections within the City with
respect to the Communications Services Tax, and with respect to electricity, gas and fuel oil, the
Utilities Tax rate or rates, exemptions from the Utilities Tax and amendments to the Utilities Tax
Ordinance generally consistent with the information set forth in the Official Statement under the
heading "UTILITIES TAXES." The information referred to in clauses (i) and (ii) is herein
collectively referred to as the "Annual Information."
B. The Annual Information described in clause (i) of paragraph A above in
audited form (for as long as the City provides such financial information in audited form) is
expected to be available on or before March 31 of each year for the Fiscal Year ending on the
preceding September 30, commencing March 31, 2008 for the Fiscal Year ending on the
preceding September 30, 2007. The Annual Information referred to in clause (i) of paragraph A
above in unaudited form (if the audited financial statements are not available or if the City no
longer provides such financial information in audited form) will be available on or before
March 31 for the Fiscal Year ending on the preceding September 30. The City also agrees to
provide the Annual Information to each registered owner and Beneficial Owner of the Bonds
who requests such information and pays to the City its costs of reproduction and transmission of
such Annual Information. The City agrees to provide to each NRMSIR and the SID, if any,
timely notice of its failure to provide the Annual Information. Such notice shall also indicate the
reason for such failure and when the City reasonably expects such Annual Information will be
available.
C. The Annual Information referred to in clause (i) of paragraph A above and
presented as an appendix to the Official Statement has been prepared in accordance with
governmental accounting standards promulgated by the Government Accounting Standards
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Board, as in effect from time to time, as such principles are modified by generally accepted
accounting principles, promulgated by the Financial Accounting Standards Board, as in effect
from time to time, and such other State mandated accounting principles as in effect from time
to time.
D. If, as authorized by paragraph F below, the City's undertaking with
respect to paragraph C above requires amending, the City undertakes and agrees that the Annual
Information described in clause (i) of paragraph A above for the Fiscal Year in which the
amendment is made will, to the extent possible, present a comparison between the Annual
Information prepared on the basis of the new accounting principles and the Annual Information
prepared on the basis of the accounting principles described in paragraph C above. The City
agrees that such a comparison will, to the extent possible, include a qualitative discussion of the
differences in the accounting principles and the impact of the change on the presentation of the
Annual Information.
E. The City undertakes and agrees to provide, in a timely manner, to each
NRMSIR or to the Municipal Securities Rulemaking Board and to the SID, if any, notice of the
occurrence of any of the following events with respect to the Bonds, if material:
(1) principal and interest payment delinquencies;
(2) non-payment related defaults;
(3) unscheduled draws on any reserve account reflecting financial
difficulties;
(4) unscheduled draws on credit enhancements reflecting financial
difficulties;
12 Resolution No. R-21-07
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(5) substitution of credit or liquidity providers, or their failure to
perform;
(6) adverse tax opinions or events affecting the tax-exempt status of
the Bonds;
(7) modifications to rights of Bondholders;
(8) Bond calls (other than scheduled mandatory sinking fund
redemptions);
(9) defeasance of the Bonds;
(10} release, substitution, or sale of property securing repayment of the
Bonds;
(11) rating changes; and
(12) any failure to comply with the provisions of this Section 6, which
in all cases, such failure will be deemed material.
Notwithstanding the foregoing, notice of the events described in clauses (8) and
(9) above need not be given any earlier than the time notice is required to be given to the
registered owners of the Bonds.
F. Notwithstanding any other provision of this Resolution or the Bond
Resolution to the contrary regarding amendments or supplements, the City undertakes and agrees
to amend and/or supplement this Section 6 (including the amendments referred to in paragraph D
above) only if:
(1) The amendment or supplement is made only in connection with a
change in circumstances existing at the time the Bonds were
originally issued that arises from (i) a change in law, (ii) SEC
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pronouncements or interpretations, (iii) a judicial decision
affecting the Rule or (iv) a change in the nature of the City's
operations or the activities that generate the Utilities Taxes.
(2) The City's Undertaking, as amended, would have complied with
the requirements of the Rule at the time the Bonds were originally
issued after taking into account any amendments or interpretations
of the Rule, as well as any change in circumstances; and
(3) The amendment or supplement does not materially impair the
interests of the registered owners and Beneficial Owners of the
Bonds as determined by Bond Counsel or by a majority of the
registered owners of the Bonds.
In the event of an amendment or supplement under this Section 6, the City shall
describe the same in the next report of Annual Information and shall include, as applicable, a
narrative explanation of the reason for the amendment or supplement and its impact, if any, on
the financial information and operating data being presented in the Annual Information.
G. The City's Undertaking as set forth in this Section 6 shall terminate if and
when the Bonds are paid or deemed paid within the meaning of this Resolution.
H. The City acknowledges that its Undertaking pursuant to the Rule set forth
in this Section 6 is intended to be for the benefit of the registered holders and Beneficial Owners
of the Bonds and shall be enforceable by such holders and Beneficial Owners; provided that, the
holder's and Beneficial Owners' right to enforce the provisions of this Undertaking shall be
limited to a right to obtain specific enforcement of the City's obligations hereunder, and any
failure by the City to comply with the provisions of this Undertaking shall not be or constitute a
14 Resolution No. R-21-07
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covenant or monetary default with respect to the Bonds under this Resolution or the Bond
Resolution.
I. The City reserves the right to satisfy its obligations under this Section 6
through agents; and the City may appoint such agents without the necessity of amending this
Resolution. The City may also appoint one or more employees of the City to monitor and be
responsible for the City's Undertaking hereunder.
SECTION 7. REDEMPTION PROVISIONS. The Bonds maturing on June 1, 2018
and thereafter are subject to redemption at the option of the City prior to maturity on or after
June 1, 2017, in whole at any time or in part from time to time on the first day of any month in
such manner as shall be determined by the City, at a redemption price equal to the principal
amount of the Bonds to be redeemed, together with accrued interest to the date fixed for
redemption.
Notwithstanding the foregoing, if the Underwriter, upon consultation with the Finance
Director, determines that market conditions require different or no optional redemption
provisions for the Bonds or for certain maturities of the Bonds, such different optional
redemption provisions or the exclusion of certain or all maturities of the Bonds from such
optional redemption provisions will be deemed approved by the Commission without the need of
further proceedings so long as the maximum redemption premium does not exceed 1% and the
first optional redemption period is not more than eleven (11) years from the date of issuance of
the Bonds.
If less than all of the Bonds are called for redemption, the Bonds to be redeemed shall be
selected in such manner as the City, in its discretion, shall determine, and if less than all of a
15 Resolution No. R-21-07
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maturity shall be called for redemption, the Bonds to be redeemed shall be selected by lot within
such maturity.
Notice of redemption of the Bonds shall be mailed, postage prepaid, by the Bond
Registrar (herein defined) at least thirty (30) and not more than sixty (60) days before the date
fixed for redemption to the registered owners of any of the Bonds or portions of the Bonds which
are to be redeemed, at their addresses as they appear fifteen (15) days prior to the date such
notice is mailed on the registration books of the City kept by the Bond Registrar.
The Bond Registrar also shall mail (by certified mail, return receipt requested) a copy of
such notice for receipt not less than the second business day prior to the date notice of
redemption is mailed to the Bondholders to the following (or the most current address): The
Depository Trust Company, 711 Stewart Avenue, Garden City, New York 11530; provided,
however, that such mailing shall not be a condition precedent to such redemption and failure to
mail any such notice shall not affect the validity of any proceedings for the redemption of the
Bonds. The Bond Registrar shall also provide notice, at the same time notice of redemption is
given to the Bondholders, to Kenny Information Systems Notification Service, 65 Broadway,
16th Floor, New York, New York 10006, and Standard & Poor's Called Bond Record, 25
Broadway, New York, New York 10004 (or the most current address); provided, however, that
such mailing shall not be a condition precedent to such redemption and failure to mail any such
notice shall not affect the validity of any proceedings for the redemption of the Bonds.
A second notice of redemption shall be given sixty (60) days after the redemption date in
the manner required above to the registered owners of redeemed Bonds which have not been
presented for payment within thirty (30) days after the redemption date.
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Such notice of redemption shall set forth (i) the date fixed for redemption, (ii) the
redemption price to be paid, (iii) the name and address of the Bond Registrar, (iv) if less than all
of the Bonds shall be called for redemption, the distinctive numbers, letters and CUSIP
identification numbers, if any, of such Bonds to be redeemed, (v) in the case of Bonds to be
redeemed in part only, the portion of the principal amount thereof to be redeemed, and (vi) any
other information the City or the Bond Registrar deems relevant. Subject to the rules of the
Securities Depository, in case any Bond is to be redeemed in part only, the notice of redemption
that relates to such Bond shall state also that on or after the redemption date, upon surrender of
the Bond, a new Bond or Bonds of the same maturity, bearing interest at the same rate and in
aggregate principal amount equal to the unredeemed portion of such Bond, will be issued.
Failure of the registered owner of any Bonds which are to be redeemed to receive any such
notice shall not affect the validity of the proceedings for the redemption of Bonds for which
proper notice has been given. Interest shall cease to accrue on any of the Bonds duly called for
prior redemption if payment of the redemption price has been duly made or provided for.
Notwithstanding any of the foregoing, no notice of redemption that relates to the Bonds
shall be given unless there are sufficient moneys for such redemption on deposit in the Principal
Account, Interest Account or Bond Redemption Account, as applicable, of the Sinking Fund or
unless such redemption shall be paid for with the proceeds of refunding Bonds or from amounts
provided by the Bond Insurer in its sole discretion.
SECTION 8. NEGOTIATED SALE. That the City hereby finds that, due to the
complicated nature of the financing, volatile market conditions, the need to issue the Bonds upon
the most favorable market conditions and the advice of its financial advisor, it would be in the
best interest of the City that the Bonds be sold on a negotiated basis.
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SECTION 9. APPOINTMENT OF UNDERWRITER. That the City hereby
appoints Bear, Stearns & Co. Inc. as the Underwriter of the Bonds pursuant to the terms and
provisions of the Purchase Contract.
SECTION 10. PARAMETERS FOR THE SALE OF THE BONDS. That the
proposal submitted by the Underwriter offering to purchase the Bonds at a purchase price for the
Bonds established pursuant to the parameters set forth below and on the terms and conditions set
forth in the Purchase Contract (substantially in the form attached hereto as Exhibit B), is hereby
approved and adopted by the City. Subject to the last sentence of this Section 10, the Mayor (or,
in her absence, the Vice Mayor) is hereby authorized to execute and deliver on behalf of the
City, and the City Clerk is hereby authorized (if so required) to affix the Seal of the City and
attest to the execution of, the Purchase Contract in substantially the form presented at this
meeting. The disclosure statements of the Underwriter, as required by Section 218.385 of the
Florida Statutes, to be delivered to the City prior to the execution of the Purchase Contract, a
form of which is attached as an exhibit to the Purchase Contract, will be entered into the official
records of the City as part of the Purchase Contract. The Purchase Contract, when in final form
as determined by the City Attorney and Bond Counsel, may be executed by the City without
further action of the City, provided the Underwriter confirms in writing to the Finance Director,
or in his absence, the Treasurer of the City that (i) the true interest cost on the Bonds does not
exceed five and one half percent (5.50%) per annum, (ii) the underwriting discount (exclusive of
any original issue discount or original issue premium) is not greater than $6.00 per $1,000 of the
original principal amount of the Bonds, (iii) the initial principal amount of Bonds sold thereunder
does not exceed the principal amount authorized under this Resolution, (iv) the final maturity of
18 Resolution No. R-21-07
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the Bonds does not extend beyond June 1, 2032, and (v) the Bonds shall have the optional
redemption provisions set forth in Section 7 hereof.
The final terms and provisions of the Bonds shall be reflected in the Official
Statement and such document shall be affixed as an exhibit to this Resolution and entered into
the records of the Commission.
SECTION 11. PRELIMINARY AND OFFICIAL STATEMENT. That the form of
the Preliminary Official Statement in substantially the form attached hereto as Exhibit C with
such changes as shall be approved by the Mayor or the City Manager and the City's Bond
Counsel, be and the same is hereby approved, and the Commission hereby approves the use of
the final printed Official Statement by the Underwriter in connection with the offering and sale
of the Bonds in substantially the same form as the attached Preliminary Official Statement. The
Commission hereby further approves the use by the Underwriter of any supplement or
amendment to the Official Statement which is necessary so that the Official Statement does not
include any untrue statement of a material fact and does not omit to state any material fact
necessary to make the statements therein not misleading. The Mayor (or, in her absence, the
Vice Mayor) is each hereby authorized and directed to execute the Official Statement and any
amendment or supplement thereto, in the name and on behalf of the City, and thereupon to cause
the Official Statement and any such amendment or supplement to be delivered to the Underwriter
with such approval to be conclusively evidenced by her execution and delivery thereof. The
Underwriter is hereby authorized to use the Preliminary Official Statement in connection with
the marketing of the Bonds. The Mayor, the Vice Mayor, the City Manager, the Director of
Finance and the Treasurer are each authorized to execute a certificate deeming the Preliminary
Official Statement "final" within the meaning of the Rule. Notwithstanding the foregoing, the
19 Resolution No. R-21-07
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Official Statement with respect to the Bonds shall not be executed prior to the date the Purchase
Contract is executed in the manner contemplated in Section 10 herein and the form thereof is
approved by Bond Counsel and the City Attorney.
SECTION 12. PAYING AGENT AND REGISTRAR. That Commerce Bank,
National Association (the "Bank") is hereby appointed as paying agent (the "Paying Agent") and
registrar (the "Registrar") for the Bonds. By the acceptance of such appointment, the Bank
agrees to comply with the terms of any paying agent and registrar agreement (that may be
required by the Bank), the Bond Resolution, this Resolution, and the Bond Insurance Policy and
the Reserve Policy, if any, applicable to it. The Paying Agent and Registrar agree to provide to
the Bond Insurer copies of all notices and reports relating to the City or the Bonds received by it
or which either is required to be sent to the City or the registered owners of the Bonds.
SECTION 13. BOOK ENTRY BONDS. That the Commission hereby determines
that the registration of the Bonds be by the Book Entry System of registration.
SECTION 14. BOND INSURANCE POLICY AND RESERVE POLICY. That,
based on the recommendations of the City's financial advisor, set forth in a letter attached hereto
as Exhibit D with respect to the Bonds, the Commission finds that obtaining the Bond Insurance
Policy and Reserve Policy, if applicable, from the Bond Insurer is in the best interests of the
City, and the Commission hereby directs that the premium due on the Bond Insurance Policy and
the Reserve Policy, if applicable, be paid in accordance with the terms thereof. The City
covenants to comply with the terms and provisions of the Commitment to provide the Bond
Insurance Policy and Reserve Policy and covenants to comply with the payment procedures with
respect to the Bond Insurance Policy.
20 Resolution No. R-21-07
WPB/381649602v16/016787.011900
SECTION 15. FINANCIAL GUARANTY AGREEMENT. That the form, terms
and provisions of the Financial Guaranty Agreement between the City and the Bond Insurer
substantially in the form attached hereto as Exhibit F, as submitted to this meeting, be and the
same are hereby approved and accepted. If the Reserve Policy is purchased by the City, the
Mayor of the City or, in her absence, the Vice Mayor, is hereby authorized and directed to
execute and deliver the Financial Guaranty Agreement on behalf of the City in substantially the
form submitted to this meeting, with such changes, insertions and deletions thereto as are
necessary or desirable for carrying out the purposes thereof as may be approved by the City
Attorney and Bond Counsel, the execution of said Financial Guaranty Agreement being
conclusive evidence of such approval.
SECTION 16. AMENDMENTS AND SUPPLEMENTS TO ORIGINAL
RESOLUTION. In addition to any definitional changes reflected in Section 1 hereof and
notwithstanding any other provision in the Original Resolution to the contrary, as a condition of
obtaining the Bond Insurance and Reserve Policy, if applicable, and for as long as the Bond
Insurer is not in default under the Bond Insurance Policy and/or Reserve Policy, if applicable, the
City covenants as follows: (i) not to issue ~ passu additional Bonds pursuant to Article III,
Section 4.G. of the Original Resolution, that bear interest at a variable rate without the express
written consent of the Bond Insurer, (ii) not to optionally redeem the Bonds or use any portion of
the proceeds of the Utilities Tax for general municipal purposes if amounts are due and owing
the Bond Insurer under the Financial Guaranty Agreement, if applicable. In the event that the
City obtains more than one Reserve Account Credit Facility Substitute for the Bonds, one of
which is the Reserve Policy, the Paying Agent shall, if moneys are required therefrom, draw on
such Reserve Account Credit Facility Substitutes on a pro rata basis. At any time amounts on
21 Resolution No. R-21-07
WPB/381649602vi6/016787.011900
deposit in the Debt Service Reserve Account are less than the Debt Service Reserve Requirement
and the Reserve Policy has been drawn on, the City covenants to apply the first available
proceeds of the Utilities Tax to reimburse the Bond Insurer thereby reinstating the Reserve
Policy prior to making any cash deposits to the Debt Service Reserve Account to cure such
deficiency. In addition, to the extent that the terms and provisions of the Commitment attached
hereto as Exhibit E are not reflected in the Original Resolution, the 2002 Resolution or this
Resolution, the City agrees to comply with such terms as if set forth herein.
SECTION 17. PAYMENT PROCEDURES UNDER THE BOND INSURANCE
POLICY.
A. In the event that on the second Business Day, and again on the Business
Day, prior to an Interest Payment Date, the Paying Agent has not received sufficient moneys to
pay all principal of and interest on the Bonds due on the second following or following, as the
case may be, Business Day, the Paying Agent shall immediately notify the Bond Insurer or its
designee on the same Business Day by telephone or telegraph, confirmed in writing by registered
or certified mail, of the amount of the deficiency.
B. If the deficiency is made up in whole or in part prior to or on the Interest
Payment Date, the Paying Agent shall so notify the Bond Insurer or its designee.
C. In addition, if the Paying Agent has notice that any Bondholder has been
required to disgorge payments of principal or interest on the Bonds to a trustee in bankruptcy or
creditors or others pursuant to a final judgment by a court of competent jurisdiction that such
payment constitutes an avoidable preference to such Bondholder within the meaning of any
applicable bankruptcy laws, then the Paying Agent shall notify the Bond Insurer or its designee
22 Resolution No. R-21-07
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of such fact by telephone or telegraphic notice, confirmed in writing by registered or certified
mail.
D. The Paying Agent is hereby irrevocably designated, appointed, directed
and authorized to act as attorney-in-fact for Holders of the Bonds as follows:
(1) If and to the extent there is a deficiency in amounts required to pay
interest on the Bonds, the Paying Agent shall (a) execute and
deliver to U.S. Bank Trust National Association, or its successors
under the Bond Insurance Policy (the "Insurance Paying Agent"),
in form satisfactory to the Insurance Paying Agent, an instrument
appointing the Bond Insurer as agent for such Holders in any legal
proceeding related to the payment of such interest and an
assignment to the Bond Insurer of the claims for interest to which
such deficiency relates and which are paid by the Bond Insurer, (b)
receive as designee of the respective Holders (and not as Paying
Agent) in accordance with the tenor of the Bond Insurance Policy
payment from the Insurance Paying Agent with respect to the
claims for interest so assigned, and (c) disburse the same to such
respective Holders; and
(2) If and to the extent of a deficiency in amounts required to pay
principal of the Bonds, the Paying Agent shall (a) execute and
deliver to the Insurance Paying Agent in form satisfactory to the
Insurance Paying Agent an instrument appointing the Bond Insurer
as agent for such Holder in any legal proceeding relating to the
23 Resolution No. R-21-07
WP8/381649602v16/016787.011900
payment of such principal and an assignment to the Bond Insurer
of any of the Bonds surrendered to the Insurance Paying Agent of
so much of the principal amount thereof as has not previously been
paid or for which moneys are not held by the Paying Agent and
available for such payment (but such assignment shall be delivered
only if payment from the Insurance Paying Agent is received), (b)
receive as designee of the respective Holders (and not as Paying
Agent) in accordance with the tenor of the Bond Insurance Policy
payment therefor from the Insurance Paying Agent, and (c)
disburse the same to such Holders.
E. Payments with respect to claims for interest on and principal of the Bonds
disbursed by the Paying Agent from proceeds of the Bond Insurance Policy shall not be
considered to discharge the obligation of the City with respect to the Bonds, and the Bond
Insurer shall become the owner of such unpaid Bonds and claims for the interest in accordance
with the tenor of the assignment made to it under the provisions of this section or otherwise.
F. Irrespective of whether any such assignment is executed and delivered, the
City and the Paying Agent hereby agree for the benefit of the Bond Insurer that:
(1) It recognizes that to the extent the Bond Insurer makes payments,
directly or indirectly (as by paying through the Paying Agent), on
account of principal of or interest on the Bonds, the Bond Insurer
will be subrogated to the rights of such Holders to receive the
amount of such principal and interest from the City, with interest
24 Resolution No. R-21-07
WPB/381649602v16/016787.011900
thereon as provided and solely from the sources stated in this
Resolution, the Bond Resolution and the Bonds; and
(2) It will accordingly pay to the Bond Insurer the amount of such
principal and interest (including principal and interest recovered
under subparagraph (ii) of the first paragraph of the Bond
Insurance Policy, which principal and interest shall be deemed past
due and not to have been paid), with interest thereon as provided in
this Resolution, the Bond Resolution and the Bonds, but only from
the sources and in the manner provided herein for the payment of
principal of and interest on the Bonds to Holders, and will
otherwise treat the Bond Insurer as the owner of such rights to the
amount of such principal and interest.
G. In connection with the issuance of additional pari passu Bonds, the City
shall deliver to the Bond Insurer a copy of the disclosure document, if any, circulated with
respect to such additional pari passu Bonds.
H. Copies of any amendments made to the documents executed in connection
with the issuance of the Bonds which are consented to the Bond Insurer shall be sent to Standard
& Poor's Corporation.
I. The Bond Insurer shall receive notice of the resignation or removal of the
Paying Agent and the appointment of a successor thereto.
J. The Bond Insurer shall receive copies of all notices required to be
delivered to Bondholders and, on an annual basis, copies of the City's audited financial
statements and Annual Budget.
25 Resolution No. R-21-07
WPB/381649602v1&/016787.0H900
Notices: Any notice that is required to be given to a holder of the Bonds or to the Paying
Agent pursuant to this Resolution shall also be provided to the Bond Insurer. All notices
required to be given to the Bond Insurer under this Resolution shall be in writing and shall be
sent by registered or certified mail addressed to MBIA Insurance Corporation, 113 King Street,
Armonk, New York 10504 Attention: Surveillance.
K. The City agrees to reimburse the Bond Insurer immediately and
unconditionally upon demand, to the extent permitted by law, for all reasonable expenses,
including attorneys' fees and expenses, incurred by the Bond Insurer in connection with (i) the
enforcement by the Bond Insurer of the City's obligations, or the preservation or defense of any
rights of the Bond Insurer, under this Resolution and any other document executed in connection
with the issuance of the Bonds, and (ii) any consent, amendment, waiver or other action with
respect to this Resolution or any related document whether or not granted or approved, together
with interest on all such expenses from and including the date incurred to the date of payment at
Citibank's Prime Rate plus 3% or the maximum interest rate permitted by law, whichever is less.
In addition, the Bond Insurer reserves the right to charge a fee in connection with its review of
any such consent, amendment or waiver, whether or not granted or approved.
L. The City agrees not to use the Bond Insurer's name in any public
document including, without limitation, a press release or presentation, announcement or forum
without the Bond Insurer's prior consent; provided however, such prohibition on the use of the
Bond Insurer's name shall not relate to the use of the Bond Insurer's standard approved form of
disclosure in public documents issued in connection with the Bonds to be issued in accordance
with the terms of the Commitment; and provided further such prohibition shall not apply to the
26 Resolution No. R-21-07
WPB/381649602v16/016787.011900
use of the Bond Insurer's name in order to comply with public notice, public meeting or public
reporting requirements.
M. The City shall not enter into any agreement nor shall it consent to or
participate in any arrangement pursuant to which Bonds are tendered or purchased for any
purpose (other than the redemption and cancellation or legal defeasance of such Bonds without
the prior written consent of the Bond Insurer).
SECTION 18. SEVERABILITY OF INVALID PROVISIONS. If any one or more
of the covenants, agreements or provisions of this Resolution should be held contrary to any
express provision of law or contrary to the policy of express law, though not expressly
prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such
covenants, agreements or provisions shall be null and void and shall be deemed separate from the
remaining covenants, agreements or provisions, and shall in no way affect the validity of any of
the other provisions of this Resolution or of the Bonds.
SECTION 19. FURTHER AUTHORIZATIONS; RATIFICATION OF PRIOR
ACTS. That the Mayor, the Vice Mayor, the City Manager, the Finance Director, the Treasurer,
the City Clerk, the City Attorney and any other authorized official of the City, be and each of
them is hereby authorized and directed to execute and deliver any and all documents and
instruments, including, but not limited to, any paying agent and registrar agreement, and to do
and cause to be done any and all acts and things necessary or proper for carrying out the
transactions contemplated by this Resolution, including, but not limited to, complying with any
conditions to obtain the Bond Insurance Policy or Reserve Policy. All actions heretofore taken
and documents prepared or executed by or on behalf of the City by any of its authorized officers
27 Resolution No. R-21-07
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in connection with the transactions contemplated hereby, are hereby ratified, confirmed,
approved and adopted.
SECTION 20. REPEALER. That all resolutions or proceedings, or parts thereof, in
conflict with the provisions of this Resolution are to the extent of such conflict hereby repealed.
SECTION 21. EFFECTIVE DATE. That this Resolution shall take effect
immediately upon its passage.
PASSED AND ADOPTED in regular session on this the 21st day of August,
2007.
Attest:
City Clerk
The foregoing Resolution is hereby
approved by me as to form, language and
execution this 21st day of August, 2007.
By:
City Attorney
CITY OF DELRAY BEACH, FLORIDA
By:
Mayor
Date of Adoption: August 21, 2007
28 Resolution No. R-21-07
WPB/381649602v16/016787.011900
City of Delray Beach, Florida
Utilities Tax Revenue Bonds, Series 2007
LIST OF EXHIBITS TO RESOLUTION NO. R-21-07
Exhibit A 2007 Projects
Exhibit B Draft Bond Purchase Agreement
Exhibit C Draft Preliminary Official Statement
Exhibit D Letter of Recommendation from Public Financial Management
Exhibit E Commitment for Bond Insurance and Reserve Policy from MBIA
Insurance Corporation
Exhibit F Form of Financial Guaranty Agreement
Resolution No. R-21-07
WPB/381649602v16/016787.011900
EXHIBIT "A"
2007 Projects
Intracoastal Park and Ramp
Old School Square Parking Garage and Improvements
ESD Building
Replacement of Fire Station #4
Miller Park Improvement
Pompey Park
Senior Center -Western Community Center
Senior Center -Western Community Center -Land Acquisition
Storm Retention Projects
Soccer Complex
Catherine Strong Park
Swim and Tennis Center
Neighborhood Parks
And any other municipal capital project in addition to or in replacement of any of the foregoing.
Resolution No. R-21-07
WPB/381649602v16/016787.011900
Exhibit B
BOND PURCHASE AGREEMENT
September _, 2007
City of Delray Beach, Florida
Utilities Tax Revenue Bonds, Series 2007
The City Commission of the
City of Delray Beach, Florida
100 N.W. First Avenue
Delray Beach, Florida 33444
Ladies and Gentlemen:
Bear, Stearns & Co. Inc. (the "Underwriter") offers to enter into the following agreement
(the "Purchase Contract") with the City of Delray Beach, Florida (the "City"), which, upon your
acceptance of this offer, will be binding upon the City and upon the Underwriter. This offer is made
subject to your acceptance on or before 5:00 p.m., Eastern time, on the date hereof and if not so
accepted, will be subject to withdrawal by the Underwriter upon notice to the City at any time prior
to your acceptance hereof.
1. Purchase and Sale. Upon the terms and conditions and upon the basis of the
representations, warranties and agreements set forth herein, the Underwriter hereby agrees to
purchase from the City for offering to the public, and the City hereby agrees to sell and deliver to
the Underwriter for such purpose, all (but not less than all) of the City's $ Utilities
Tax Revenue Bonds, Series 2007 (the "Series 2007 Bonds"). The Series 2007 Bonds shall be issued
in such principal amounts, shall mature on such dates and in such amounts, shall bear such rates of
interest, and shall be subject to optional redemption prior to maturity, all as set forth in Exhibit A
attached hereto and incorporated herein by reference. [The Series 2007 Bonds shall not be subject to
mandatory redemption.] Interest on the Series 2007 Bonds shall be payable on December 1, 2007,
and on each June 1 and December 1 thereafter. The aggregate purchase price of the Series 2007
Bonds is $ (which takes into account a net original issue premium of $
and an Underwriter's discount of $ ), which shall be payable, subject to the terms and
conditions hereof, on the Closing Date (as hereinafter defined). The Series 2007 Bonds shall initially
be offered to the public at such prices or yields as indicated on Exhibit A attached hereto. The Series
2007 Bonds are being issued pursuant to the Constitution and Laws of the State of Florida,
particularly, Chapter 166, Florida Statutes, as amended and supplemented, the City Charter, as
amended and supplemented, and other applicable provisions of law, and Resolution No. 98-91 of
the City duly adopted on December 3, 1991 (the "Original Resolution"), as amended and
supplemented by Resolution No. R-90-02, adopted on December 3, 2002 (the "2002 Resolution"),
authorizing the issuance of the City's Utilities Tax Revenue Refunding Bonds, Series 2002 (the
"Series 2002 Bonds"), as amended and supplemented by Resolution, No. R-21-07, adopted by the
Commission on August 21, 2007, authorizing the issuance of, and, pursuant to the parameters
therein, Bing the details of, the Series 2007 Bonds (the "2007 Resolution"). The Original
Resolution, the 2002 Resolution and the 2007 Resolution are collectively referred to herein as the
"Bond Resolution"). Any capitalized term used herein and not otherwise defined shall have the
meaning assigned to such term in the Bond Resolution. The Series 2007 Bonds are limited
obligations of the City, payable solely from and secured solely by a pledge of and first priority lien
on the Pledged Revenues, which consist of the proceeds of the City's Utilities Tax levied and
collected or received by the City and deposited in the Sinking Fund created and established pursuant
to the terms and provisions of the Bond Resolution (sometimes hereinafter referred to as the
"Pledged Revenues"). The Series 2007 Bonds are being issued on parity with the City's outstanding
Series 2002 Bonds.
The City is proposing to issue the Series 2007 Bonds to (i) finance and refinance
certain municipal projects within the City as more particularly described in the 2007 Resolution (the
"2007 Projects' and (ii) pay the costs of issuing the Series 2007 Bonds, including paying the
premiums for the financial guaranty insurance policy (the "Bond Insurance Policy") and a debt
service reserve fund surety bond (the "Reserve Policy"). The Series 2007 Bonds are being issued
as pari passu additional bonds (as defined in the Bond Resolution) pursuant to the provisions of
the Bond Resolution.
Concurrently with the execution and delivery of the Series 2007 Bonds, there are to
be executed and delivered, among other things: (a) the Financial Guaranty Agreement between the
City and MBIA Insurance Corporation (the "Insurer") (the "Guaranty Agreement"), and (b) the
Paying Agent/Registrar Agreement dated as of September _, 2007 (the "Paying Agent/Registrar
Agreement") between the City and Commerce Bank, National Association, as registrar and paying
agent for the Series 2007 Bonds (the "Registrar and Paying Agent"). This Purchase Contract, the
Guaranty Agreement and the Paying Agent/Registrar Agreement are sometimes collectively referred
to herein as the "City Documents".
2. Good Faith Deposit; Underwriter's Liability. Delivered to you herewith, as a good
faith deposit, is a corporate check of the Underwriter payable to the order of the City in the amount
of $ as security for the performance by the Underwriter of its obligation to accept
and pay for the Series 2007 Bonds at Closing (as defined below) in accordance with the provisions
hereof. In the event that you accept this offer, said check will be held uncashed by the City as a good
faith deposit. At the Closing, the check will be returned to the Underwriter. In the event you do not
accept this offer, the check shall be immediately returned to the Underwriter. If the Underwriter fails
(other than for a reason permitted hereunder) to accept and pay for the Series 2007 Bonds at the
Closing as provided herein, the check may be cashed by the City and the proceeds retained by the
City as full liquidated damages for the failure of the Underwriter to accept and pay for the Series
2007 Bonds at closing and for any and all defaults hereunder on the part of the Underwriter, and the
retention of such amounts shall constitute a full release and discharge of all claims and damages for
such failure and for any and all such defaults hereunder on the part of the Underwriter, it being
understood by both the City and the Underwriter that actual damages in such circumstances may be
difficult or impossible to compute.
In the event that the City fails to deliver the Series 2007 Bonds at the Closing, or if
the City is unable at or prior to the Closing Date to satisfy or cause to be satisfied the conditions to
the obligations of the Underwriter contained in this Purchase Contact, or if the obligations of the
Underwriter contained herein shall be cancelled or terminated for any reason permitted by this
Purchase Contract, the City shall be obligated to immediately return the check to the Underwriter
and such return shall constitute a full release and discharge of all claims by the City and the
2
Underwriter arising out of the transaction contemplated herein except for the respective obligations
of the City and the Underwriter set forth in Section 8 hereof.
3. Offering. The Underwriter agrees to make a public offering of the Series 2007 Bonds at
the initial offering prices [or yields] set forth in Exhibit A attached hereto; provided, however, the
Underwriter reserves the right to make concessions to dealers and to change such initial offering
prices [or yields] as the Underwriter shall deem necessary in connection with the marketing of the
Series 2007 Bonds.
It shall be a condition of your obligation to sell and deliver the Series 2007 Bonds to the
Underwriter, and the obligation of the Underwriter to purchase and accept delivery of the Series
2007 Bonds, that the entire initial aggregate principal amount of the Series 2007 Bonds shall be sold
and delivered by you and accepted and paid for by the Underwriter at the Closing.
4. Preliminary Official Statement and Official Statement. The City hereby confirms
that it has heretofore made available to the Underwriter a Preliminary Official Statement of the City
relating to the Series 2007 Bonds dated August _, 2007 (which, together with the cover page and
appendices contained therein, is herein called the "Preliminary Official Statement'. Within seven
business days of the acceptance hereof by the City, the City shall deliver to the Underwriter, at the
City's expense such reasonable number of conformed copies of the Official Statement (which,
together with the official cover page and appendices contained therein, is herein called the "Official
Statement"), as the Underwriter shall reasonably request, which shall be sufficient in number to
permit the Underwriter to comply with paragraph (b)(4) of Rule 15c2-12 (the "Rule") of the
Securities and Exchange Commission ("SEC") under the Securities Exchange Act of 1934 and with
Rule G-32 and all other applicable rules of the Municipal Securities Rulemaking Board. The City, by
its acceptance hereof ratifies and approves the deeming final of the Preliminary Official Statement,
except for permitted omissions, as of its date and the distribution thereof by the Underwriter and
approves and authorizes the Underwriter to use the Official Statement in connection with the public
offering and the sale of the Series 2007 Bonds. The City agrees to make no amendments to the
Official Statement without the prior written consent of the Underwriter, which consent shall not be
unreasonably withheld. In addition, the City will, pursuant to the Rule, undertake, pursuant to the
Bond Resolution, to provide certain annual financial and operating information and notices of the
occurrence of certain events, if material. A description of this undertaking is set forth in the
Preliminary Official Statement and will also be set forth in the final Official Statement.
In accordance with Section 218.385(6), Florida Statutes, the Underwriter hereby discloses the
required information as provided in Exhibit B attached hereto. In accordance with 218.385(2) and
(3), Florida Statutes, the Underwriter has delivered to the City the Truth-in-Bonding statement,
which statement is attached hereto as Exhibit C.
5. Representations, Warranties and Agreements. The City hereby represents, warrants
and agrees as follows:
a. As of the date of the Preliminary Official Statement and the date of this Purchase
Contract and at the time of Closing, the statements and information contained in the Preliminary
Official Statement and Official Statement are and will be true, correct and complete in all material
respects and the Preliminary Official Statement and Official Statement will not omit any statement
or information which should be included therein for the purposes for which the Preliminary Official
3
Statement and Official Statement are to be used or which is necessary to make the statements or
information contained therein, in light of the circumstances under which they were made, not
misleading (provided, however, that no representation or warranty is being provided with respect to
the Insurer, the Bond Insurance Policy, the Reserve Policy or the Depository Trust Company
("DTC") and its book-entry system).
b. Between the date of this Purchase Contract and the time of Closing, the City will
not execute any bonds, notes or obligations for borrowed money, other than the Series 2007 Bonds,
which pledge the Pledged Revenues, without giving prior written notice thereof to the Underwriter.
c. The City is, and will be at the Closing Date, duly organized and validly existing as
a municipal corporation of the State of Florida, with the powers and authority set forth in the Act
(as defined iri the Bond Resolution).
d. The City has full legal right, power and authority to: (i) enter into the City
Documents, (ii) adopt the Bond Resolution, (iii) sell, issue and deliver the Series 2007 Bonds to the
Underwriter under the Act as provided herein, and (iv) carry out and consummate the transactions
contemplated by the City Documents, the Bond Resolution and the Official Statement, and the City
has complied, and at the Closing will be in compliance, in all respects, with the terms of the Act and
with the obligations on its part in connection with the issuance of the Series 2007 Bonds contained
in the Bond Resolution, the Series 2007 Bonds, and the City Documents.
e. By all necessary official action, the City has (i) duly adopted the Bond Resolution,
(ii) duly authorized and approved the Official Statement, and (iii) duly authorized and approved the
execution and delivery of, and the performance by the City of, the Series 2007 Bonds, the City
Documents, the Bond Resolution and all other obligations on its part in connection with the
issuance of the Series 2007 Bonds and the consummation by it of all other transactions
contemplated by the City Documents and the Official Statement in connection with the issuance of
the Series 2007 Bonds; and upon delivery of the Series 2007 Bonds at the Closing, the Bond
Resolution and the City Documents will, assuming the due authorization, execution and delivery of
the City Documents by the other parties thereto, constitute legal, valid and binding obligations of
the City, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency,
and similar laws affecting creditors' rights generally and subject, as to enforceability, to general
principles of equity.
f. When delivered to and paid for by the Underwriter at the Closing in accordance
with the provisions of this Purchase Contract, the Series 2007 Bonds shall be entitled to the benefits
of the Bond Resolution in accordance with the provisions of the Bond Resolution, subject to
bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights
generally and subject, as to enforceability, to general principles of equity.
g. To the best knowledge of the City, the adoption of the Bond Resolution and the
authorization, execution and delivery of the City Documents and the Series 2007 Bonds, and
compliance with the provisions hereof and thereof, will not conflict with, or constitute a material
breach of or default under any law, administrative regulation, consent decree, ordinance, resolution
or any agreement or other instrument to which the Ciry was or is subject, as the case may be, nor, to
the best knowledge of the City, will such adoption, execution, delivery, authorization or compliance
result in the creation or imposition of any lien, charge or other security interest or encumbrance of
4
any nature whatsoever upon any of the property or assets of the City, or under the terms of any law,
administrative regulation, ordinance, resolution or instrument, except as expressly provided by the
Bond Resolution.
h. At the time of Closing, the City will be in compliance in all respects with the
covenants and agreements contained in the Bond Resolution and no event of default and no event
which, with the lapse of time or giving of notice, or both, would constitute an event of default under
the Bond Resolution, will have occurred or be continuing.
i. Except as provided in the Official Statement, all approvals, consents,
authorizations and orders of any governmental authority or agency having jurisdiction in any matter
which would constitute a condition precedent to the performance by the City of its obligations
hereunder and its obligations under the Bond Resolution have been obtained and are in full force
and effect, except that no representation is made with respect to compliance with any state blue sky
or other legal investment laws.
j. The City is lawfully empowered to pledge and grant a lien on the Pledged
Revenues for payment of the principal of and interest on the Series 2007 Bonds on parity with the
Series 2002 Bonds.
k. Except as expressly disclosed in the Official Statement, there is no action, suit,
proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency
or public board or body pending or, to the best knowledge of the City, threatened against the City,
affecting or seeking to prohibit, restrain or enjoin the sale, issuance or delivery of the Series 2007
Bonds or the collection of the Pledged Revenues or the pledge of and lien on the Pledged Revenues,
or contesting or affecting as to the City the validity or enforceability in any respect of the Series 2007
Bonds, the Bond Resolution, or the City Documents, or contesting the tax-exempt status of the
interest on the Series 2007 Bonds, or contesting the completeness or accuracy of the Official
Statement or any supplement or amendment thereto, or contesting the powers of the City or the
City Commission (the "Commission") or any authority for the issuance of the Series 2007 Bonds,
the adoption of the Bond Resolution or the execution and delivery by the City of the Series 2007
Bonds or the City Documents.
1. The City will furnish such information, execute such instruments and take such
other action in cooperation with the Underwriter as the Underwriter may reasonably request in
order to (i) qualify the Series 2007 Bonds for offer and sale under the "blue sky" or other securities
laws and regulations of such states and other jurisdictions of the United States as the Underwriter
may designate and (ii) determine the eligibility of the Series 2007 Bonds for investment under the
laws of such states and other jurisdictions, and will use its best efforts to continue such qualifications
in effect so long as required for the distribution of the Series 2007 Bonds; provided, however, that
the City shall not be required to execute a general or special consent to service of process or qualify
to do business or register as a broker/dealer in connection with any such qualification or
determination in any jurisdiction.
m. The City will not take or omit to take any action which action or omission will in
any way cause the proceeds from the sale of the Series 2007 Bonds to be applied in a manner
contrary to that provided for in the Bond Resolution, and as described in the Official Statement.
5
n. The City neither is nor has been in default at any time after December 31, 1975,
as to principal or interest with respect to an obligation issued or guaranteed by the City.
o. As of its date, the Preliminary Official Statement was deemed "final" by the City
for the purposes of Section(b)(1) of the Rule, except for the omission of certain matters permitted
thereby, by execution of the appropriate certificate by a duly authorized officer of the City.
p. If, after the date of this Purchase Contract and until the earlier of (i) ninety (90)
days from the end of the "underwriting period" (as defined in the Rule) or (ii) the time when the
Official Statement is available to any person from a nationally recognized repository, but in no case
less than twenty-five (25) days following the end of the underwriting period, any event shall occur
which might or would cause the Official Statement, as then supplemented or amended, to contain
any untrue statement of a material fact or to omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading,
the City shall, if it has knowledge of such event, notify the Underwriter thereof and, if in the opinion
of the Underwriter such event requires the preparation and publication of a supplement or
amendment to the Official Statement, the City will at its own expense (unless such untrue statement
was provided by the Insurer, DTC or the Underwriter), forthwith prepare and furnish to the
Underwriter a sufficient number of copies of an amendment of or supplement to the Official
Statement (in form and substance satisfactory to the Underwriter) which will supplement or amend
the Official Statement so that it will not contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in light of the circumstances
existing at such time, not misleading. The City has been informed by the Underwriter that the end
of the underwriting period shall be the business day after the Closing Date.
q. Any certificate signed by any official of the City and delivered to the Underwriter
shall be deemed a representation and warranty by the City to the Underwriter as to the truth of the
statements therein contained.
r. The City has never failed to comply with any prior continuing disclosure
obligation arising out of the Rule.
6. Closing. At noon, local time, on September _, 2007 (the "Closing Date', or at such
time on such earlier or later date as shall be agreed upon, the City will, subject to the terms and
conditions hereof deliver to DTC pursuant to DTC's "FAST" system of registration the Series 2007
Bonds in permanent form, duly executed, and will deliver the other documents herein mentioned at
a location mutually agreed upon by the City and the Underwriter; and the Underwriter will pay the
purchase price of the Series 2007 Bonds as set forth in Section 1 hereof, by immediately available
funds, payable to the order of the City, and thereupon the City shall deliver the Good Faith Check
(uncashed) described in Section 2 hereof to the Underwriter. This delivery and payment is herein
called the "Closing."
7. Closing Conditions. The Underwriter has entered into this Purchase Contract in
reliance upon the representations and warranties of the City herein contained and the performance
by the City of its obligations hereunder, both as of the date hereof and as of the time of Closing.
The obligations of the Underwriter under this Purchase Contract are and shall be subject to each of
the following conditions, and the obligations of the City shall be subject to the City receiving the
items described in conditions (f)(ii), (f)(iv), (f)(vii) through (f)(x):
a. The representations and warranties of the City contained herein shall be true and
correct as of the date hereof and as of the Closing Date, as if made on the Closing Date.
b. The City shall have performed all agreements of the City required to be
performed under the Bond Resolution and this Purchase Agreement prior to or on the Closing
Date.
c. At the time of the Closing, the Bond Resolution shall be in full force and effect
in accordance with its terms and shall not have been amended, modified or supplemented, and the
Official Statement shall not have been supplemented or amended, except in any such case as may
have been agreed to by the Underwriter.
d. At the time of the Closing, all official action of the City relating to the City
Documents, the Bond Resolution, the Official Statement and the Series 2003 Bonds shall be in full
force and effect in accordance with their respective terms and shall not have been amended,
modified or supplemented in any material respect, except in each case as may have been agreed to by
the Underwriter.
e. The Underwriter shall have the right to cancel the agreement contained herein to
purchase, to accept delivery of and to pay for the Series 2007 Bonds by notifying you in writing of
their intention to do so if
i. between the date hereof and the Closing Date, legislation shall have
been enacted by the Congress of the United States ("Congress"), or recommended to the Congress
for passage by the President of the United States, or favorably reported for passage to either House
of Congress by any Committee of such House, or passed by either House of Congress, or a decision
shall have been rendered by a court of the United States or the United States Tax Court, or a ruling
shall have been made or a regulation shall have been proposed or made by the Treasury Department
of the United States or the Internal Revenue Service, with respect to the federal taxation of interest
received on obligations of the general character of the Series 2007 Bonds, which, in the opinion of
Counsel for the Underwriter has, or will have, the effect of making such interest subject to inclusion
in gross income for purposes of federal income taxation, or
ii. between the date hereof and the Closing Date, legislation shall be
enacted or any action shall be taken by the Securities and Exchange Commission which has the
effect of requiring the contemplated issuance or distribution of the Series 2007 Bonds to be
registered under the Securities Act of 1933, as amended, or of requiring the Bond Resolution to be
qualified under the Trust Indenture Act of 1939, as amended, or
iii. an event described in paragraph (p) of Section 5 hereof shall have
occurred which requires an amendment or supplement to the Official Statement and which, in the
reasonable opinion of the Underwriter, adversely affects the marketability of the Series 2007 Bonds
or the market price thereof, or
iv. in the reasonable opinion of the Underwriter, payment for the
delivery of the Series 2007 Bonds is rendered impracticable or inadvisable because (A) trading in
securities generally shall have been suspended on the New York Stock Exchange, Inc., or (B) a
general banking moratorium shall have been established by Federal, New York or Florida
7
authorities, or (C) a war or terrorist act involving the United States or other national calamity shall
have occurred or been declared, or there shall have been a material escalation of current military
hostilities or threat thereof, or
v. an order, decree or injunction of any court of competent jurisdiction,
or any order, ruling, regulation or administrative proceeding by any governmental body or board,
shall have been issued or commenced, or any legislation enacted, with the purpose or effect of
prohibiting the issuance, offering or sale of the Series 2007 Bonds as contemplated hereby or by the
Official Statement or prohibiting the performance of the Bond Resolution, or
vi. the City has, without the prior written consent of the Underwriter,
offered or issued any bonds, notes or other obligations for borrowed money, or incurred any
material liabilities, direct or contingent, other than as described in the Official Statement, in either
case payable from the Pledged Revenues, or
vii. the President of the United States, the Office of Management and
Budget, the Department of Treasury, the Internal Revenue Service or any other governmental body,
department, agency or commission of the United States or the State of Florida shall take or propose
to take any action or implement or propose regulations, rules or legislation which, in the reasonable
judgment of the Underwriter, materially adversely affects the market price or marketability of the
Series 2007 Bonds or causes any material information in the Official Statement, in light of the
circumstances under which it appears, to be misleading in any material respect, or
viii. any executive order shall be announced, or any legislation, ordinance,
rule or regulation shall be proposed by or introduced in, or be enacted by any governmental body,
department, agency or commission of the United States or the State of Florida or the State of New
York, having jurisdiction over the subject matter, or a decision by any court of competent
jurisdiction within the United States or within the State of Florida or the State of New York shall be
rendered which, uz the reasonable judgment of the Underwriter, materially adversely affects the
market price or marketability of the Series 2007 Bonds or causes any information in the Official
Statement to be misleading in any material respect, or
ix. prior to Closing, Moody's Investor's Service, Inc. ("Moody's'~ or
Standard & Poor's Public Finance Rating Services, a division of McGraw-Hill Companies ("S&P"),
shall inform the City or the Underwriter that the Series 2007 Bonds will not be rated at least "Aaa"
and "AAA" respectively, or the Insurer shall inform the City or the Underwriter that it will not
deliver its Bond Insurance Policy or Reserve Policy on the Closing Date, or
x. prior to Closing, there has been an adverse change of a material nature
in the financial position, results of operations or condition, financial or otherwise, of the City, in either
case other than in the ordinary course of its business or as disclosed in the Official Statement and such
action will, in the reasonable opinion of the Underwriter, materially adversely affect the marketability of
the Series 2007 Bonds or the market price thereof.
£ At or prior to the Closing Date, the Underwriter shall receive the following
documents:
i. The Bond Resolution certified by the Ciry Clerk under seal as having
been duly adopted by the City and as being in effect, with such supplements, modifications or
amendments as may have been agreed to by the Underwriter.
ii. A final approving opinion of Greenberg Traurig, P.A., Bond
Counsel, addressed to the Ciry, dated the date of the Closing, in substantially the form included in
the Official Statement as Appendix D.
iii. A letter of Bond Counsel addressed to the Underwriter and the
Insurer, and dated the Closing Date, to the effect that their final approving opinion referred to in
Section 7(f)(ii) hereof may be relied upon by the Underwriter and the Insurer to the same extent as if
such opinion were addressed to the Underwriter and the Insurer.
iv. An opinion of Susan A. Ruby, Esquire, City Attorney, addressed to
the City, the Underwriter and the Insurer, and dated the date of the Closing, substantially to the
effect that:
(1) the Ciry is a municipal corporation duly existing under the
Constitution and laws of the State of Florida and has good right and lawful authority to adopt the
Bond Resolution, execute and deliver the City Documents, issue the Series 2007 Bonds, to secure
the Series 2007 Bonds in the manner provided in the Bond Resolution, to carry out its powers under
the Act and to perform all of its obligations under the Bond Resolution, the Series 2007 Bonds and
the City Documents;
(2) the Bond Resolution has been duly adopted by the City and the
Series 2007 Bonds and the City Documents have been duly authorized, executed and delivered by
the Ciry, and the Bond Resolution and the Series 2007 Bonds, when duly authenticated, and the City
Documents, when duly executed by the other parties thereto constitute valid, legal and binding
agreements of the City enforceable in accordance with their respective terms; provided, however, the
enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting creditors' rights generally;
(3) no consent, waiver or any other action by any person, board or
body, public or private, other than the approval of the City which has been duly and validly
obtained, is required as of the date hereof for the Ciry to issue the Series 2007 Bonds or adopt the
Bond Resolution, or to execute and deliver the City Documents, or to perform its obligations under
any of the foregoing, except she need not express any opinion regarding any blue sky or legal
investment laws;
(4) to the best of her knowledge, the adoption of the Bond
Resolution, and the execution and delivery of the City Documents and the Series 2007 Bonds and
compliance with the provisions of each do not and will not conflict with or constitute a breach of or
default under any applicable law or administrative regulation of the State of Florida, or any
applicable judgment or decree or any trust agreement, loan agreement, bond, note, resolution,
ordinance, agreement or other instrument to which the City is a part or is otherwise subject;
(5) except as otherwise disclosed in the Official Statement, there is
no litigation or proceeding, pending or, to the best of her knowledge, threatened, challenging the
9
creation, organization or existence of the City or the validity of the Series 2007 Bonds, or the City
Documents or seeking to restrain or enjoin any of the transactions referred to therein or
contemplated thereby, or which, in any manner, questions the right of the City to issue the Series
2007 Bonds, or to pledge the Pledged Revenues for repayment of the Series 2007 Bonds;
(6) there is no litigation or proceeding pending to which the City is a
party, the ultimate disposition of which would have a material adverse effect on the finances or
operations of the City or its ability to meet its obligations with respect to the Series 2007 Bonds;
('7) nothing has come to her attention that would lead her to believe
that the Official Statement as of its date or as of the date hereof contains any untrue statement of a
material fact or omits to state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading (except such opinion may exclude
information regarding DTC, its book-entry system, the Insurer, the Bond Insurance Policy, the
Reserve Policy and any financial or statistical data);
(8) the Official Statement has been duly authorized, executed and
delivered by the City, and the City has consented to the use thereof by the Underwriter;
(9) the City is lawfully empowered to pledge and grant a lien on the
Pledged Revenues, for the payment of the principal of and interest on the Series 2007 Bonds; and
(10) the City is in full statutory compliance with all provisions
relating to the imposition and collection of the Utilities Tax (as defined in the Bond Resolution).
v. A certificate, which shall be true and correct at the time of Closing,
signed by the City Manager and the Finance Director or such other officials satisfactory to the
Underwriter, and in form and substance satisfactory to the Underwriter, to the effect that, to the
best of their knowledge and belief
(1) the representations, warranties and covenants of the City
contained herein are true and correct in all material respects as of the Closing Date and that the City
has satisfied all conditions to be performed or satisfied hereunder at or prior to Closing;
(2) the Official Statement did not as of its date, and does not as of
the Closing Date, contain any untrue statement of a material fact or omit to state a material fact
which should be included therein for the purposes for which the Official Statement is to be used, or
which is necessary in order to make the statements contained therein, in light of the circumstances in
which they were made, not misleading (provided, that no opinion need be expressed regarding the
information contained therein relating to the Insurer, the Bond Insurance Policy, the Reserve Policy,
DTC and its book-entry system);
(3) that, except as disclosed in the Official Statement, no litigation or
other proceedings are pending or, to their knowledge, threatened against the City in any court or
other tribunal of competent jurisdiction, State or Federal, in any way (i) restraining or enjoining the
issuance, sale or delivery of any of the Series 2007 Bonds, or (ii) questioning or affecting the validity
of the City Documents, the Series 2007 Bonds, the Bond Resolution or the pledge by the City to the
Bondholders of the Pledged Revenues, or (iii) questioning or affecting the validity of any of the
proceedings for the authorization, sale, execution, issuance or delivery of the Series 2007 Bonds or
10
(iv) questioning or affecting (A) the organization or existence of the City or the title to office of the
officers thereof or (B) the power or authority of the City to receive the Pledged Revenues or (v)
asserting that the Preliminary Official Statement or the Official Statement contains any untrue
statement of a material fact or omits any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
(4) that except as disclosed in the Official Statement, the City is not
in default nor has been in default at anytime after December 31, 1975 as to principal or interest with
respect to any obligation issued or guaranteed by the Ciry;
(5) that no event affecting the City has occurred since the date of the
Official Statement that should be disclosed in the Official Statement for the purposes for which it is
to be used or that is necessary to be disclosed therein in order to make the statements and
information therein not misleading in any material respect; and
(6) that since the date of the financial statements included in the
Official Statement, (i) no material adverse change has occurred in the financial condition of the City
and (ii) the City has not incurred any material liabilities other than in the ordinary course of business,
except as set forth in or contemplated by the Official Statement.
vi. An opinion of Greenberg Traurig, P.A., as Bond Counsel, addressed
to the City and the Underwriter, and dated the Closing Date, to the effect that:
(1) with respect to the information in the Official Statement and
based upon said firm's review of the Official Statement, as Bond Counsel: (A) it is of the opinion
that the information in the Official Statement under the headings "INTRODUCTION,"
"DESCRIPTION OF THE SERIES 2007 BONDS" "SECURITY FOR THE SERIES 2007
BONDS," "CONTINUING DISCLOSURE UNDERTAKING," (except for the financial and
statistical data contained in any such headings, as to which no view need be expressed), and
"APPENDIX C -Summary of Certain Provisions of the Resolution" insofar as such information
purports to be descriptions or summaries of the Bond Resolution, the Series 2007 Bonds or state
and federal laws to the extent indicated therein, are accurate and fair statements or summaries of the
matters set forth or the documents referred to therein; and (B) the statements on the cover page and
under the section captioned "TAX EXEMPTION" insofar as such statements summarize certain
provisions of the tax law, regulations, rulings and notices, are fair and accurate statements of the
provisions so summarized and accurately reflect Bond Counsel's opinion with respect to the
exemptions from taxation applicable to the Series 2007 Bonds; and
(2) the Series 2007 Bonds are exempt from registration under the
Securities Act of 1933, as amended, and the Bond Resolution is exempt from qualification as an
indenture under the Trust Indenture Act of 1939, as amended.
vii. A certificate of an authorized representative of the Registrar and
Paying Agent, to the effect that:
(1) the Registrar and Paying Agent is a national banking association
duly organized, validly existing and in good standing under the laws of the United States of America
and is duly authorized to exercise trust powers in the State of Florida;
11
(2) the Registrar and Paying Agent has all the requisite authority,
power, licenses, permits and franchises, and has full corporate power and legal authority to execute
and perform its functions under the Bond Resolution, the Paying Agent/Registrar Agreement and
any other documents to which it is a party (herein, the "Bank Documents");
(3) the performance by the Registrar and Paying Agent of its
functions under the Bond Resolution and the Bank Documents will not result in any violation of the
Articles of Association or Bylaws of the Registrar and Paying Agent, any court order to which the
Registrar and Paying Agent is subject or any agreement, indenture or other obligation or instrument
to which the Registrar and Paying Agent is a party or by which the Registrar and Paying Agent is
bound, and no approval or other action by any governmental authority or agency having supervisory
authority over the Registrar and Paying Agent is required in order for the Registrar and Paying
Agent to perform its functions under the Bond Resolution and the Bank Documents;
(4) the Bank Documents constitute valid and binding obligations of
the Registrar and Paying Agent in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally
and subject, as to enforceability, to general principles of equity; and
(5) to the best of such authorized representative's knowledge, there
is no action, suit, proceeding, or investigation at law or in equity before any court, public board or
body pending or, to his or her knowledge, threatened against or affecting the Registrar and Paying
Agent wherein an unfavorable decision, ruling or finding on an issue raised by any party thereto is
likely to materially and adversely affect the ability of the Registrar to perform its obligations under
the Bond Resolution and the Bank Documents.
viii. Letters of Moody's and S&P to the effect that the Series 2007 Bonds
have been assigned a rating no less favorable than "Aaa" and "AAA" respectively, which ratings
shall be in effect as of the Closing Date, each with the understanding that the Insurer will issue the
Bond Insurance Policy and Reserve Policy. upon delivery of the Series 2007 Bonds, and letters from
Moody's assigning an underlying rating of "_" and from S&P assigning an underlying rating of
"_" to the Series 2007 Bonds, without regard to any insurance policy.
ix. Duly executed copies of the Bond Insurance Policy, the Reserve
Policy, the City Documents and the Bank Documents in form acceptable to the Underwriter and
Bond Counsel.
x. An opinion of general counsel to the Insurer and a certificate of an
officer of the Insurer dated the date of the Closing and addressed to the Underwriter and the City,
concerning the Insurer, the Bond Insurance Policy, the Reserve Polity, and the information relating
to the Insurer, the Bond Insurance Policy, and the Reserve Policy, contained in the Official
Statement, in form and substance satisfactory to the Underwriter.
xi. A certificate executed by the Finance Director dated the Closing
Date, satisfactory to Bond Counsel setting forth the facts, estimates and circumstances which
establish that it is not expected that the proceeds of the Series 2007 Bonds will be used in a manner
that would cause the Series 2007 Bonds to be "arbitrage bonds" within the meaning of Section 148
of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder (the
12
"Code"), and to the best of the knowledge and belief of such officer, such expectations are
reasonable.
xii. A letter of representations of the City to DTC.
xiii. Internal Revenue Service Form 8038-G.
xiv. State of Florida Division of Bond Finance Form BF2003/2004-B.
xv. A Rule 15c2-12 Certificate pursuant to which the City "deems final" the
Preliminary Official Statement, except for permitted omissions, and consents to the Underwriter's use
thereof and the information contained therein.
xvi. The opinion of Greenberg Traurig, P.A., as Disclosure Counsel, dated
the date of the closing, in form and substance reasonably satisfactory to the Underwriter and
addressed to the City and the Underwriter. In lieu of addressing the opinion to the Underwriter,
Disclosure Counsel may provide the Underwriter a "reliance letter".
xvii. Such additional legal opinions, certificates, instruments and other
documents as the Underwriter may reasonably request to evidence the truth and accuracy, as of the
date hereof and as of the date of the Closing, of the City's representations contained herein and of the
statements and information contained in the Official Statement and the due performance or satisfaction
by the City on or prior to the date of Closing of all the agreements then to be performed and conditions
then to be satisfied by it.
If the City shall be unable to satisfy the conditions to the obligations of the Underwriter to
purchase, to accept delivery of and to pay for the Series 2007 Bonds contained in this Purchase
Contract and the Underwriter does not waive such inability in writing, or if the obligations of the
Underwriter to purchase, to accept delivery of and to pay for the Series 2007 Bonds shall be
terminated for any reason permitted by this Purchase Contract, this Purchase Contract shall
terminate, the good faith deposit described in Section 2 hereof shall be returned to the Underwriter
and neither the Underwriter nor the City shall be under any further obligation hereunder, except that
the respective obligations of the City and the Underwriter set forth in Section 8 hereof shall
continue in full force and effect.
8. Expenses. The Underwriter shall be under no obligation to pay, and the City shall pay,
any expense incident to the performance of the City's obligations hereunder including, but not
limited to: (a) the cost of preparation, printing and delivery of the Bond Resolution; (b) the cost of
preparation and printing of the Series 2007 Bonds; (c) the fees and expenses of Bond Counsel and
Disclosure Counsel; (d) the fees and expenses of Public Financial Management, Inc., the City's
financial advisor for the Series 2007 Bonds; (e) the fees and disbursements of any other experts,
consultants or advisors retained by the City; (~ fees for bond ratings; (h) the fees and expenses of
the Registrar and Paying Agent; and (h) the costs of preparing, printing and delivering the
Preliminary Official Statement and the Official Statement and any supplements or amendments
thereto. The Underwriter shall pay: (a) the cost of printing and delivery of this Purchase Contract;
(b) the cost of all "Blue Sky" and legal investment memoranda and related filing fees, if any; (c) all
advertising expenses; and (d) all other expenses incurred by it in connection with the public offering
of the Series 2007 Bonds including the fees and disbursements of counsel for the Underwriter. In
13
the event that either party shall have paid obligations of the other as set forth in this Section 8,
adjustment shall be made at the time of the Closing.
9. Notices. Any notice or other communication to be given to you under this Purchase
Contract may be given by mailing the same to the attention of the City Manager, at the address set
forth on the first page hereof, and any such notice or other communication to be given to the
Underwriter may be mailed to Bear, Stearns & Co. Inc., 225 N.E. Mizner Blvd., Boca Raton, Florida
33483, Attention: J.W. Howard.
10. Parties in Interest. This Purchase Contract is made solely for the benefit of the City
and the Underwriter and no other party or person shall acquire or have any right hereunder or by
virtue hereof. All of the City's representations, warranties and agreements in this Purchase Contract
shall remain operative and in full force and effect and to the extent applicable shall survive the
delivery of the Series 2007 Bonds.
11. Waiver. Notwithstanding any provision herein to the contrary, the performance of any
and all obligations of the City hereunder and the performance of any and all conditions contained
herein for the benefit of the Underwriter may be waived by the Underwriter, and the approval of the
Underwriter when required hereunder or the determination of their satisfaction as to any document
referred to herein shall be evidenced by its purchase of the Series 2007 Bonds.
12. No Liability. Neither the Commission, nor any of the members thereof, nor any officer,
agent or employee thereof shall be charged personally by the Underwriter with any liability, or held
liable to the Underwriter under any term or provision of this Purchase Contract because of its
execution or attempted execution, or because of any breach or attempted or alleged breach thereof.
13. Governing Law. This Purchase Contract, and the terms and conditions herein, shall
constitute the full and complete agreement between the City and the Underwriter with respect to the
purchase and sale of the Series 2007 Bonds. This Purchase Contract shall be governed by and
construed in accordance with the laws of the State of Florida.
14. Operation of Warranties, Etc. All the representations, warranties, covenants and
agreements of the City in this Purchase Contract shall remain operative and in full force and effect
as if made on the date hereof and the Closing Date, regardless of (i) any investigation made by or on
behalf of the Underwriter or Counsel to the Underwriters or (ii) delivery of and any payment for the
Series 2007 Bonds hereunder.
15. Section Headings. Section headings have been inserted in this Purchase Contract as a
matter of convenience of reference only, and it is agreed that such section headings are not a part of
this Purchase Contract and will not be used in the interpretation of any provisions of this Purchase
Contract.
16. Severability. If any provision of this Purchase Contract shall be held or deemed to be,
or shall in fact be, invalid, inoperative or unenforceable as applied in any particular case in any
jurisdiction or jurisdictions, or in all jurisdictions because it conflicts with any provisions of any
constitution, statute, or rule of public policy, or for any other reasons, such circumstances shall not
have the effect of rendering the provision in question invalid, inoperative or unenforceable in any
14
other case or circumstances, or of rendering any other provision or provisions of this Purchase
Contract invalid, inoperative or unenforceable to any extent whatever.
17. Execution of Counterparts. This Purchase Contract may be executed in any number of
counterparts, all of which taken together shall be one and the same instrument, and any paxties
hereto may execute this Purchase Contract by signing any such counterpart. The execution of this
Purchase Contract has been duly authorized by the Commission.
18. Effectiveness. This Purchase Contract shall become effective upon the execution by the
appropriate City official of the acceptance hereof by the City and shall be valid and enforceable at
the time of such acceptance.
Very truly yours,
By:
Accepted this _ day of September, 2007
on behalf of the
City of Delray Beach, Florida
By:
Mayor
BEAR, STEARNS & CO. INC.
J.W. Howard, Managing Director
15
EXHIBIT A
MATURITIES, PRINCIPAL AMOUNTS, INTEREST RATES, AND PRICES OR
YIELDS
SERIES 2007 BONDS
Maturities Principal Interest Price or
October 1 Amounts Rates Yield
Redemption
Optional Redemption. The Series 2007 Bonds maturing on June 1, 2018 and thereafter are
subject to redemption, at the option of the City prior to maturity on or after June 1, 2017, in whole
at any time or in part from time to time on the first day of any month in such manner as shall be
determined by the City, at a redemption price equal to the principal amount of the Series 2007
Bonds to be redeemed together with accrued interest to the date fixed for redemption.
If less than all of the Series 2007 Bonds are called for redemption, the Series 2007 Bonds to
be redeemed shall be selected in such manner as the City, in its discretion, shall determine, and if less
than all of a maturity shall be called for redemption, the Series 2007 Bonds to be redeemed shall be
selected by lot within such maturity.
[Mandatory Redemption)
A-1
EXHIBIT B
DISCLOSURE STATEMENT
The City Commission of the
City of Delray Beach, Florida
100 N.W. First Avenue
Delray Beach, Florida 33444
Re: $ ,City of Delray Beach, Florida
Utilities Tax Revenue Bonds, Series 2007
Ladies and Gentlemen:
In connection with the proposed issuance by the City of Delray Beach, Florida of
$ of its Utilities Tax Revenue Bonds, Series 2007 Bonds, (the "Series 2007 Bonds"),
Bear, Stearns & Co. Inc. (the "Underwriter") is underwriting a public offering of the Series 2007
Bonds. The purpose of this letter is to furnish, pursuant to the provisions of Section 218.385(6),
Florida Statutes, certain information in respect of the arrangements contemplated for the
underwriting of the Series 2003 Bonds as follows:
A. The nature and estimated amount of expenses to be incurred by the Underwriter
in connection with the purchase and reoffering of the Series 2007 Bonds are set forth in Schedule I
attached hereto.
B. No person has entered into an understanding with the Underwriter, or to the
knowledge of the Underwriter, with the City, for any paid or promised compensation or valuable
consideration, directly or indirectly, expressly or implied, to act solely as an intermediary between the
City and the Underwriter or to exercise or attempt to exercise any influence to effect any transaction
in the purchase of the Series 2007 Bonds.
C. The underwriting spread, the difference between the price at which the Series
2007 Bonds will be initially offered to the public by the Underwriter and the price to be paid to the
City for the Series 2007 Bonds, will be $ per $1,000 of Series 2007 Bonds issued.
D. The Underwriter will not charge a management fee.
E. No other fee, bonus or other compensation is estimated to be paid by the
Underwriter in connection with the issuance of the Series 2007 Bonds to any person not regularly
employed or retained by the Underwriter (including any "finder" as defined in Section 218.386(1)(a),
Florida Statutes), except as specifically enumerated as expenses to be incurred by the Underwriter, as
set forth in Paragraph (A) above.
B-1
We understand that you do not require any further disclosure from the Underwriter,
pursuant to Section 218.385(6), Florida Statutes.
By:
BEAR, ST'EARNS & CO. INC.
225 N.E. Mizner Boulevard
Boca Raton, Florida 33432
J.W. Howard, Managing Director
B-2
SCHEDULE I
UNDERWRITERS ESTIMATED EXPENSES
(vex $1~000~ Dollar Amount
A~ra~,~ Takedown
Underwriter's Counsel
CUSIP Fee
Dalcorn
F.le~rrofiic Order Fee
DTC
Dalnet
I~~-
Mince laneous Fx ns
Total Expenses
B-3
EXHIBIT C
TRUTH-IN BONDING STATEMENT
The following truth-in-bonding statement is prepared pursuant to Section 218.385(2) and
(3), Florida Statutes, and is for informational purposes only. It shall not affect or control the actual
terms and conditions of the debt or obligations.
The City of Delray Beach, Florida (the "City") is proposing to issue $ of City of
Delray Beach, Utilities Tax Revenue Bonds, Series 2007 Bonds, (the "Series 2007 Bonds") for the
purpose of providing funds to: (i) finance and refinance certain municipal projects within the City as
more particularly described in the 2007 Resolution and (ii) pay the costs of issuing the Series 2007
Bonds, including paying the premiums for the Bond Insurance Policy and the Reserve Policy. The
Series 2007 Bonds are expected to be repaid over a period of approximately _ years. At the interest
rates set forth in Exhibit A of the Purchase Contract, total interest paid over the life of the Series
2007 Bonds will be approximately $
The Series 2007 Bonds are limited obligations of the City, payable solely from and secured
solely by a pledge of and first priority lien on the Pledged Revenues, which consist of the proceeds
of the City's Utilities Tax levied and collected or received by the City and deposited in the Sinking
Fund created and established pursuant to the terms and provisions of the Bond Resolution (the
"Pledged Revenues"). Authorizing the Series 2007 Bonds will result in $ of Pledged
Revenues not being available to finance other projects of the Ciry each year for approximately 25
years.
Exhibit C
PRELIMINARY OFFICIAL STATEMENT DATED AUGUST _, 2007
NEW ISSUE: FULL BOOK ENTRY
RATINGS: S&P: "AAA" Moody's: "Aaa"
(MBIA Insured)
S&P: "A" Moody's "A2"
(Underlying Ratings)
(See "RATINGS" herein)
In the opinion of Bond Counsel under existing law, and assuming compliance with the tax covenants described herein, interest on
the Series 2007 Bonds (as defined below) is excluded from gross income for federal income tax purposes, and is not a specific preference
item for purposes of the federal alternative minimum tax. See however, "TAX EXEMPTION" herein for a description of certain other taxes
imposed on corporations. Bond Counsel is also of the opinion that the Series 2007 Bonds and the interest thereon are exempt from taxation
under existing laws of the State of Florida, except as to estate taxes and taxes imposed by Chapter 220, Florida Statutes, on interest, income
or profits on debt obligations owned by corporations, banks and savings associations.
[INSERT DELRAY LOGO]
CITY OF DELRAY BEACH, FLORIDA
Utilities Tax Revenue Bonds, Series 2007
Dated: Date of Delivery
Due: June 1, as shown on the Inside Cover
The City of Delray Beach, Florida Utilities Tax Revenue Bonds, Series 2007 (the "Series 2007 Bonds") will be issued as fully
registered bonds without coupons in principal denominations of $5,000 or any integral multiples thereof. The Series 2007 Bonds will be
registered in the name of Cede & Co., as nominee for the Depository Trust Company ("DTC"), New York, New York, and DTC will act as
securities depository for the Series 2007 Bonds. So long as Cede & Co. is the registered owner of the Series 2007 Bonds, principal of,
premium, if any, and interest on the Series 2007 Bonds will be paid directly to Cede & Co., as nominee for DTC, by Commerce Bank,
National Association, having a designated corporate trust office in Jacksonville, Florida, as paying agent for the Series 2007 Bonds (the
"Paying Agent"). Interest on the Series 2007 Bonds is payable semi-annually, commencing December I, 2007 and each June 1 and
December 1 thereafter.
The Series 2007 Bonds are subject to redemption prior to maturity as described herein. See "Description of the Series 2007 Bonds
- Redemption Provisions," herein.
The proceeds of the Series 2007 Bonds will be used by the City of Delray Beach, Florida (the "City") to (i) finance and refinance
certain municipal projects within the City as more particularly described in the herein defined 2007 Resolution (the "2007 Projects") and (ii)
pay the costs of issuing the Series 2007 Bonds, including the premiums for the financial guaranty insurance policy (the "Bond Insurance
Policy") and a debt service reserve fund surety bond (the "Reserve Policy").
The Series 2007 Bonds are limited obligations of the City, payable solely from and secured solely by a pledge of and first
priority lien upon the Pledged Revenues (which consist of the proceeds of the City's Utilities Tax (as defined herein) deposited in the
Sinking Fund (as defined herein) on parity with the City's outstanding Utilities Tax Revenue Refunding Bonds, Series 2002 (the
"Series 2002 Bonds" and together with the Series 2007 Bonds and any pari passu additional bonds, the "Bonds"), in the manner
herein described. The Series 2007 Bonds and the interest thereon shall not be and shall not constitute an indebtedness of the City or
of the State of Florida or any political subdivision thereof within the meaning of any constitutional, statutory, charter or other
limitation of indebtedness, and neither the full faith and credit nor the taxing powers of the State of Florida or the City or any
political subdivision thereof are pledged as security for the payment of the principal of or interest on the Series 2007 Bonds and no
holder or holders of any Series 2007 Bonds shall ever have the right to compel the exercise of the ad valorem taxing powers of the
City, or taxation in any form of any real property therein to pay the principal of the Series 2007 Bonds or interest thereon.
The scheduled payment of principal of and interest on the Series 2007 Bonds when due will be guaranteed under the Bond
Insurance Policy to be issued concurrently with the delivery of the Series 2007 Bonds by:
MBIA LOGO
For a discussion of the terms and provisions of the Bond Insurance Policy, including the limitations thereof, see "BOND
INSURANCE," herein. The Series 2007 Bonds will also be secured by the Reserve Policy.
This cover page contains certain information for quick reference only. It is not a summary of the issue. Investors must read this
entire Official Statement to obtain information essential to the making of an informed investment decision.
The Series 2007 Bonds are offered subject to prior sale when, as and if issued by the City and accepted by the Underwriter, and
subject to approval as to legality by Greenburg Traurig, P.A., West Palm Beach, Florida, Bond Counsel to the City, and certain other
conditions. Certain legal matters will be passed on for the City by its City Attorney, Susan A. Ruby, Esq. Certain legal matters will be passed
upon for the Underwriter named below by its counsel, Moskowitz, Mandell, Salim & Simowitz, P.A., Fort Lauderdale, Florida. Public
Financial Management, Inc., Orlando, Florida, served as financial advisor to the City in connection with the issuance of the Series 2007
Bonds. Greenberg Traurig, P.A., West Palm Beach, Florida also served as disclosure counsel. It is expected that the Series 2007 Bonds in
definitive form will be available for delivery through the facilities of DTC in New York, New York, on or about , 2007.
BEAR, STEARNS & CO. INC.
Dated: , 2007
WPB/381657421 v22/016787.011900
MATURITIES, PRINCIPAL AMOUNTS, INTEREST RATES,
PRICES OR YIELDS AND INITIAL CUSIP NUMBERS
Maturity Principal Interest
(June 1) Amount* Rate Price or Yield
INITIAL
CUSIP
NUMBERS**
Preliminary, subject to change.
** The City is not responsible for the use of CUSIP numbers, nor is any representation made as to their
correctness. They are included solely for the convenience of the readers of this Official Statement.
WPB/381657421 v22/016787.011900
CITY OF DELRAY BEACH, FLORIDA
100 N.W. ls` Avenue
Delray Beach, Florida 33444
CITY COMMISSION
Rita Ellis, Mayor
Fred Fetzer, Vice Mayor
Brenda Montague, Deputy Vice Mayor
Gary Eliopoulos, Commissioner
Nelson McDuffie, Commissioner
CITY OFFICIALS
David T. Harden, City Manager
Joseph M. Safford, Finance Director
Rebecca S. O'Connor, Treasurer
Richard C. Hasko, Director of Environmental Services
Randal L. Krejcarek, City Engineer
Chevelle D. Nubin, City Clerk
CITY ATTORNEY
Susan A. Ruby, Esquire
BOND COUNSEL/DISCLOSURE COUNSEL
Greenberg Traurig, P.A.
West Palm Beach, Florida
FINANCIAL ADVISOR
Public Financial Management, Inc.
Orlando, Florida
WP8/381657421 v22/016787.011900
No dealer, broker, salesperson or other person has been authorized by the City or the
Underwriter to give any information or to make any representations with respect to the Series
2007 Bonds other than those contained in this Official Statement and, if given or made, such
information or representations must not be relied upon as having been authorized by any of the
foregoing. This Official Statement does not constitute an offer to sell or the solicitation of an
offer to buy, nor shall there be any sale of the Series 2007 Bonds by any person in any
jurisdiction in which it is unlawful for such person to make such offer, solicitation or sale.
The information set forth herein has been obtained from public documents, records and
other sources which are believed to be reliable but it is not guaranteed as to accuracy or
completeness, and is not to be construed as a representation by the Underwriter. The City makes
no representation as to any information from sources other than the information provided by the
City. The information and expressions of opinion herein are subject to change without notice,
and neither the delivery of this Official Statement nor any sale of Series 2007 Bonds, under any
circumstances, create any implication that there has been no change in any information set forth
herein since the date hereof or the date as of which particular information is given, if earlier.
This Official Statement is not to be construed as a contract or agreement between the City or the
Underwriter and the purchasers or owners, from time to time, of any of the Series 2007 Bonds.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITER MAY
OVERALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE
MARKET PRICE OF THE SERIES 2007 BONDS AT LEVELS ABOVE THAT WHICH
MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH STABILIZING, IF
COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
The following Official Statement contains a general description of the Series 2007 Bonds
and sets forth certain information about the City. All summaries and descriptions herein of
documents, instruments and agreements, including the Series 2007 Bonds, are qualified in their
entirety by reference to the complete, definitive forms of the Series 2007 Bonds and such
documents, instruments and agreements, copies of which are on file at the office of the City's
Director of Finance.
THE SERIES 2007 BONDS HAVE NOT BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, NOR HAS THE RESOLUTION (AS DEFINED HEREIN) BEEN
QUALIFIED UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED, IN
RELIANCE UPON EXEMPTIONS CONTAINED IN SUCH ACTS. THE REGISTRATION
OR QUALIFICATION OF THE SERIES 2007 BONDS IN ACCORDANCE WITH
APPLICABLE PROVISIONS OF THE SECURITIES LAWS OF CERTAIN STATES, IF
ANY, IN WHICH THE SERIES 2007 BONDS HAVE BEEN REGISTERED OR QUALIFIED
AND THE EXEMPTION FROM REGISTRATION OR QUALIFICATION IN CERTAIN
OTHER STATES CANNOT BE REGARDED AS A RECOMMENDATION THEREOF.
NEITHER THESE STATES NOR ANY OF THEIR AGENCIES HAVE PASSED UPON THE
MERITS OF THE SERIES 2007 BONDS OR THE ACCURACY OR COMPLETENESS OF
THIS OFFICIAL STATEMENT. ANY REPRESENTATION TO THE CONTRARY MAY BE
A CRIMINAL OFFENSE.
WPB/381657421v22/016787.011900
Other than with respect to information concerning MBIA Insurance Corporation (the
"Bond Insurer" or "MBIA") contained under the caption "BOND INSURANCE," "APPENDIX
E -Specimen Financial Guaranty Insurance Policy" and "APPENDIX F -Specimen Debt
Service Reserve Surety Bond" herein, none of the information in this Official Statement has been
supplied or verified by the Bond Insurer and the Bond Insurer makes no representation or
warranty, express or implied, as to (i) the accuracy or completeness of such information; (ii) the
validity of the Series 2007 Bonds; or (iii) the tax-exempt status of the interest on the Series 2007
Bonds.
FORWARD LOOKING STATEMENTS
Certain statements contained herein that are not purely historical, are forward-looking
statements, including statements regarding the City's expectations, hopes, intentions, or
strategies regarding the future. Readers should not place undue reliance on forward-looking
statements. All forward-looking statements included herein are based on information available
on the date hereof, and the City and Underwriter assume no obligation to update any such
forward-looking statements. Such forward-looking statements are necessarily based on various
assumptions and estimates and are inherently subject to various risks and uncertainties, including
risks and uncertainties relating to the possible invalidity of the underlying assumptions and
estimates and possible changes or developments in social, economic, business, industry, market,
legal, and regulatory circumstances and conditions and actions taken or omitted to be taken by
third parties. Assumptions related to the foregoing involve judgments with respect to, among
other things, future economic conditions which are difficult or impossible to predict accurately
and are beyond the control of the City and the Underwriter. Actual results could differ materially
from those discussed in such forward-looking statements and, therefore, there can be no
assurance that the forward-looking statements included herein will prove to be accurate.
The City has "deemed final" this Preliminary Official Statement, except for "Permitted
Omissions" for purpose of Securities and Exchange Commission Rule 15c2-12.
WPB/381657421 v22/016787.011900
TABLE OF CONTENTS
Page
INTRODUCTION .........................................................................................................................1
PURPOSE OF SERIES 2007 BONDS ........................................................................................ .2
ESTIMATED SOURCES AND USES OF FUNDS ................................................................... .Z
Sources of Funds ............................................................................................................... .2
Uses of Funds .................................................................................................................... .2
DESCRIPTION OF THE SERIES 2007 BONDS ......................................................................3
General ...............................................................................................................................3
Book-Entry Only System ..................................................................................................3
Discontinuance of Book-Entry Only System ...................................................................6
Negotiability, Registration and Cancellation ..................................................................6
Transfer and Exchange .....................................................................................................7
Redemption Provisions ......................................................................................................7
SECURITY FOR THE SERIES 2007 BONDS ...........................................................................8
General ............................................................................................................................... 8
Covenant Concerning Utilities Taxes ..............................................................................8
Reserve Account ................................................................................................................9
Flow of Funds ................................................................................................................... 10
Additional Bonds ............................................................................................................. 11
UTILITIES TAXES .................................................................................................................... 12
Communications Services Tax ....................................................................................... 14
Exemption of CST ........................................................................................................... 15
Collection .......................................................................................................................... 15
UTILITIES/COMMUNICATIONS SERVICES TAX COLLECTIONS .............................. 15
BOND INSURANCE ................................................................................................................... 16
The MBIA Insurance Corporation Insurance Policy ................................................... 16
MBIA Insurance Corporation ........................................................................................ 17
Regulation ......................................................................................................................... 17
Financial Strength Ratings of MBIA ............................................................................. 17
ti
i
l I
f
MBIA Fi 18
on .........................................................................................
orma
nanc
n
a
Incorporation of Certain Documents by Reference ..................................................... 18
SURETY BOND .......................................................................................................................... 19
THE CITY .................................................................................................................................... 20
Location and Size ............................................................................................................. 20
Brief Description .............................................................................................................. 20
Budgeting, Accounting and Auditing ............................................................................. 21
i
WPB/381857421 x22/016787.01 J900
Operating Budget for Fiscal Year Ended September 30, 2006 ...................................21
DEBT SUMMARY ...................................................................................................................... 22
Selected Debt Data ........................................................................................................... 22
RATINGS ..................................................................................................................................... 22
LEGALITY .................................................................................................................................. 23
CONTINGENCY FEES .............................................................................................................. 23
TAX EXEMPTION ..................................................................................................................... 23
UNDERWRITING ...................................................................................................................... 25
CONTINUING DISCLOSURE UNDERTAKING .................................................................. 25
ENFORCEABILITY OF REMEDIES ...................................................................................... 28
LITIGATION ............................................................................................................................... 29
GENERAL PURPOSE FINANCIAL STATEMENTS ............................................................ 29
FINANCIAL ADVISOR ............................................................................................................. 29
DISCLOSURE REQUIRED BY FLORIDA BLUE SKY REGULATIONS ......................... 29
MISCELLANEOUS ....................................................................................................................30
AUTHORIZATION OF AND CERTIFICATION CONCERNING OFFICIAL
STATEMENT ..............................................................................................................................31
APPENDIX A GENERAL INFORMATION CONCERNING THE CITY OF DELRAY
BEACH ,FLORIDA AND PALM BEACH COUNTY
APPENDIX B CITY OF DELRAY BEACH, FLORIDA GENERAL PURPOSE
FINANCIAL STATEMENTS AND OTHER INFORMATION FOR THE
FISCAL YEAR ENDED SEPTEMBER 30, 2006
APPENDIX C SUMMARY OF CERTAIN PROVISIONS OF THE RESOLUTION
APPENDIX D FORM OF APPROVING OPINION OF BOND COUNSEL
APPENDIX E SPECIMEN FINANCIAL GUARANTY INSURANCE POLICY
APPENDIX F SPECIMEN DEBT SERVICE RESERVE SURETY BOND
ii
WPB/381657421 v22/016787.011900
OFFICIAL STATEMENT
City of Delray Beach, Florida
Utilities Tax Revenue Bonds, Series 2007
INTRODUCTION
The purpose of this Official Statement, which includes its cover page and certain
enclosed Appendices, is to furnish information with respect to the issuance by the City of Delray
Beach, Florida (the "City") of its Utilities Tax Revenue Bonds, Series 2007 (the "Series 2007
Bonds") in the aggregate principal amount of $ *.
The Series 2007 Bonds are being issued under the authority of and in full compliance
with the Constitution and laws of the State of Florida, including Chapter 166, Florida Statutes, as
amended and supplemented, the City Charter, as amended and supplemented, and other
applicable provisions of law. The Series 2007 Bonds are being issued more specifically pursuant
to Resolution No. 98-91, adopted by the City Commission of the City (the "Commission") on
December 3, 1991 (the "Original Resolution"), as amended and supplemented by Resolution No.
R-90-02, adopted by the Commission on December 3, 2002 (the "2002 Resolution"), as further
amended and supplemented by Resolution No. R-21-07, adopted by the Commission on August
21, 2007 (the "2007 Resolution") (collectively, the "Resolution"). See "APPENDIX C -
SUMMARY OF CERTAIN PROVISIONS OF THE RESOLUTION" herein.
The Series 2007 Bonds are limited obligations of the City, payable solely from and
secured solely by a pledge of and first priority lien upon the Pledged Revenues (which consist of
the proceeds of the City's Utilities Tax (as herein defined) levied and collected or received by the
City and deposited in the Sinking Fund (as herein defined)) created and established pursuant to
the terms and provisions of the Resolution (sometimes hereinafter referred to as the "Pledged
Revenues"), as further described under the heading "Utilities Taxes" herein. Except as provided
herein with respect to the herein described Bond Insurance Policy and Surety Bond, the Series
2007 Bonds are issued on parity with the City's Outstanding Utilities Tax Revenue Refunding
Bonds, Series 2002 (the "Series 2002 Bonds") issued pursuant to the terms and provisions of the
Original Resolution and the 2002 Resolution.
The Series 2007 Bonds, the Series 2002 Bonds and any other pari passu additional bonds
issued pursuant to the provisions of the Resolution are herein referred to as the "Bonds." The
Series 2007 Bonds and the interest thereon shall not be and shall not constitute an indebtedness
of the City or of the State of Florida or any political subdivision thereof within the meaning of
any constitutional, statutory, charter or other limitation of indebtedness, and neither the full faith
and credit nor the taxing powers of the State of Florida or the City or any political subdivision
thereof are pledged as security for the payment of the principal of or interest on the Series 2007
Bonds and no holder or holders of any Series 2007 Bonds shall ever have the right to compel the
exercise of the ad valorem taxing powers of the City, or taxation in any form of any real property
therein to pay the principal of the Series 2007 Bonds or interest thereon.
Preliminary, subject to change.
WPB/381657421 v22/016787.011900
Capitalized terms not otherwise defined in this Official Statement shall have the same
meanings assigned to such terms in the Resolution. See "APPENDIX C -Summary of Certain
Provisions of the Resolution" herein for certain definitions. The description of the Series 2007
Bonds, the Resolution and certain statutory provisions and the information from various reports
and statements contained in this Official Statement are not comprehensive or definitive. All
references to such documents, reports and statements are qualified by the actual content of such
documents, reports and statements, copies of which may be obtained by contacting the Director
of Finance, City of Delray Beach, Florida, 100 N.W. First Avenue, Delray Beach, FL 33444,
(561) 243-7115 or during the offering period of the Series 2007 Bonds from Public Financial
Management, Inc., financial advisor to the City, (407) 648-2208.
PURPOSE OF SERIES 2007 BONDS
The Series 2007 Bonds will be issued by the City to (i) finance and refinance certain
municipal projects within the City as more particularly described in the 2007 Resolution (the
"2007 Projects"); and (ii) pay the costs of issuance of the Series 2007 Bonds, including the
premiums for the Bond Insurance Policy and the Reserve Policy.
ESTIMATED SOURCES AND USES OF FUNDS
The proceeds to be received from the sale of the Series 2007 Bonds are expected to be
applied as follows:
Sources of Funds
Principal Amount of Series 2007 Bonds ................................... $
[Original Issue Premium] .........................................................
[Original Issue Discount] ..........................................................
Total Sources of Funds ......................... $
Uses of Funds
Repayment of outstanding City obligations to SunTrust
Bank incurred in 2005 ........................................................... $
Deposit to Acquisition and Construction Fund ........................
Underwriter's Discount .............................................................
2007 Cost of Issuance Cost Center~l~ ........................................
Total Uses of Funds .............................. $
~1~ Includes the premiums for the Bond Insurance Policy and Reserve Policy.
[Remainder of page intentionally left blank].
2
WPB/381657421 v22/016787.011900
DESCRIPTION OF THE SERIES 2007 BONDS
General
The Series 2007 Bonds will be dated the date of delivery and will mature on June 1 of the
years and in the principal amounts set forth on the inside cover page hereof. The Series 2007
Bonds will be initially issued only in the form of fully registered bonds in denominations of
$5,000 or any integral multiple thereof. Interest on the Series 2007 Bonds is payable
semiannually commencing December 1, 2007, and each June 1 and December 1 thereafter at the
rates per annum set forth on the inside cover page hereof. Commerce Bank, National
Association, having a designated corporate trust office in Jacksonville, Florida, will serve as
bond registrar (the "Bond Registrar") and paying agent (the "Paying Agent") for the Series 2007
Bonds. The Series 2007 Bonds, when issued, will be registered in the name of Cede & Co., as
nominee of the Depository Trust Company ("DTC"), New York, New York.
So long as the Series 2007 Bonds shall be in book-entry form, the principal of and
interest on such Series 2007 Bonds is payable by check or draft mailed or by wire transfer to
Cede & Co., as nominee of DTC and registered owners thereof for redistribution by DTC to the
DTC Participants (as herein defined) and in turn to Beneficial Owners (as herein defined) as
described below under "Book-Entry Only System." If the book-entry system should be
discontinued, certificated Series 2007 Bonds will be issued to the Beneficial Owners, who will
then become the registered owners thereof. See "Discontinuance of Book-Entry Only System"
below.
Book-Entry Only System
The following contains a description of the procedures and operations of DTC and is
based upon information provided by DTC. The City has not independently investigated or
verified such procedures and operations and assumes no responsibility for the accuracy or
completeness of the description thereof.
The Series 2007 Bonds will be available only in book-entry form. Purchasers of the
Series 2007 Bonds will not receive certificates representing their interests in the Series 2007
Bonds purchased. The City has entered into a letter of representations with the DTC, providing
for such book-entry system.
Unless the book-entry system described herein is terminated, as hereinafter described,
DTC will act as securities depository for the Series 2007 Bonds. The Series 2007 Bonds will be
issued as fully registered bonds registered in the name of Cede & Co. (OTC's partnership
nominee). One fully registered Series 2007 Bond certificate will be issued for each maturity of
the Series 2007 Bonds in the aggregate principal amount of the applicable maturity as set forth
on the cover of this Official Statement, and will be deposited with OTC.
OTC, the world's largest depository, is alimited-purpose trust company organized under
the New York Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency" registered
3
WPB/381657421 v22/016787.011900
pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds
and provides asset servicing for over 2.2 million U.S. and non-U.S. equity issues, corporate and
municipal issues, and money market instruments from over 100 countries that DTC's
participants ("Direct Participants") deposit with DTC. DTC also facilitates the post-trade
settlement among Direct Participants of sales and other securities transactions in deposited
securities, through electronic computerized book-entry transfers and pledges between Direct
Participants' accounts. This eliminates the need for physical movement of securities certificates.
Direct Participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust
companies, clearing corporations, and certain other organizations. DTC is a wholly owned
subsidiary of The Depository Trust & Clearing Corporation ("DTCC"). DTCC, in turn, is owned
by a number of Direct Participants of DTC and Members of the National Securities Clearing
Corporation, Fixed Income Clearing Corporation, and Emerging Markets Clearing Corporation,
(NSCC, FICC, and EMCC, also subsidiaries of DTCC), as well as by the New York Stock
Exchange, Inc., the American Stock Exchange LLC, and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as both U.S. and non-
U.S. securities brokers and dealers, banks, trust companies, and clearing corporations that clear
through or maintain a custodial relationship with a Direct Participant, either directly or indirectly
("Indirect Participants"). The Direct Participants and the Indirect Participants are collectively
referred to herein as the "DTC Participants." DTC has Standard & Poor's highest rating: AAA.
The DTC rules applicable to its DTC Participants are on file with the Securities and Exchange
Commission (the "SEC"). More information about DTC can be found at http://www.dtcc.com
and www.dtc.org.
Purchases of Series 2007 Bonds under the DTC system must be made by or through
Direct Participants, which will receive a credit for the Series 2007 Bonds on DTC's records. The
ownership interest of each actual purchaser of each Series 2007 Bond (each a "Beneficial
Owner") is in turn to be recorded on the Direct and Indirect Participants' records. Beneficial
Owners will not receive written confirmation from DTC of their purchase. Beneficial Owners
are, however, expected to receive written confirmations providing details of the transaction, as
well as periodic statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership interests in the
Series 2007 Bonds are to be accomplished by entries made on the books of Direct and Indirect
Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive
certificates representing their ownership interests in the Series 2007 Bonds, except in the event
that use of the book-entry system for the Series 2007 Bonds is discontinued.
To facilitate subsequent transfers, all Series 2007 Bonds deposited by Direct Participants
with DTC are registered in the name of DTC's partnership nominee, Cede & Co., or such other
name as may be requested by an authorized representative of DTC. The deposit of the Series
2007 Bonds with DTC and their registration in the name of Cede & Co. or such other DTC
nominee do not effect any change in beneficial ownership. DTC has no knowledge of the actual
Beneficial Owners of the Series 2007 Bonds; DTC's records reflect only the identity of the
Direct Participants to whose accounts such Series 2007 Bonds are credited, which may or may
not be the Beneficial Owners. The Direct and Indirect Participants will remain responsible for
keeping account of their holdings on behalf of their customers.
4
WPB/381657421 v22/016787.011900
Conveyance of notices and other communications by DTC to Direct Participants, by
Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to
Beneficial Owners will be governed by arrangements among them, subject to any statutory or
regulatory requirements as may be in effect from time to time. Beneficial Owners of Series 2007
Bonds may wish to take certain steps to augment the transmission to them of notices of
significant events with respect to the Series 2007 Bonds, such as redemptions, tenders, defaults,
and proposed amendments to the security documents. For example, Beneficial Owners of Series
2007 Bonds may wish to ascertain that the nominee holding the Series 2007 Bonds for their
benefit has agreed to obtain and transmit notices to Beneficial Owners. In the alternative,
Beneficial Owners may wish to provide their names and addresses to the Bond Registrar and
request that copies of notices be provided directly to them.
Redemption notices shall be sent to DTC. If less than all of the Series 2007 Bonds within
a maturity are being redeemed, DTC's practice is to determine by lot the amount of the interest
of each Direct Participant in such maturity to be redeemed.
Neither DTC nor Cede & Co. (nor any other DTC nominee) will consent or vote with
respect to the Series 2007 Bonds unless authorized by a Direct Participant in accordance with
DTC's procedures. Under its usual procedures, DTC mails an Omnibus Proxy to the City as soon
as possible after the record date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting
rights to those Direct Participants to whose accounts the Series 2007 Bonds are credited on the
record date (identified in a listing attached to the Omnibus Proxy).
Principal and interest payments on the Series 2007 Bonds will be made to Cede & Co., or
such other nominee as may be requested by an authorized representative of DTC. DTC's
practice is to credit Direct Participants' accounts upon DTC's receipt of funds and corresponding
detail information from the City, Bond Registrar or the Paying Agent on a payment date in
accordance with their respective holdings shown on DTC's records. Payments by DTC
Participants to Beneficial Owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of customers in bearer form or
registered in "street name," and will be the responsibility of such DTC Participant and not of
DTC nor its nominee, the Paying Agent, the Bond Registrar or the City, subject to any statutory
or regulatory requirements as may be in effect from time to time. Payment of principal and
interest on the Series 2007 Bonds, as applicable, to Cede & Co. (or such other nominee as may
be requested by an authorized representative of DTC) is the responsibility of the City and/or the
Paying Agent, disbursement of such payments to Direct Participants will be the responsibility of
DTC, and disbursement of such payments to the Beneficial Owners will be the responsibility of
Direct and Indirect Participants.
DTC may discontinue providing its services as depository with respect to the Series 2007
Bonds at any time by giving reasonable notice to the City or the Paying Agent. Under such
circumstances, in the event that a successor depository is not obtained, Series 2007 Bond
certificates are required to be printed and delivered.
The City may decide to discontinue use of the system of book-entry transfers through
DTC (or a successor securities depository) upon compliance with any applicable DTC rules and
procedures. In that event, Series 2007 Bond certificates will be printed and delivered.
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5
So long as Cede & Co. is the registered owner of the Series 2007 Bonds, as nominee of
DTC, reference herein to the Bondholders or Registered Owners of the Series 2007 Bonds will
mean Cede & Co., as aforesaid, and will not mean the Beneficial Owners of the Series 2007
Bonds.
NEITHER THE CITY, THE BOND REGISTRAR NOR THE PAYING AGENT
WILL HAVE ANY RESPONSIBILITY OR OBLIGATION TO THE DTC
PARTICIPANTS OR THE PERSONS FOR WHOM THEY ACT AS NOMINEE WITH
RESPECT TO THE PAYMENTS TO OR THE PROVIDING OF NOTICE FOR THE
DTC PARTICIPANTS, THE INDIRECT PARTICIPANTS OR THE BENEFICIAL
OWNERS OF THE SERIES 2007 BONDS. THE CITY CANNOT AND DOES NOT GIVE
ANY ASSURANCES THAT DTC, THE DTC PARTICIPANTS OR OTHERS WILL
DISTRIBUTE PAYMENTS OF PRINCIPAL OF OR INTEREST ON THE SERIES 2007
BONDS PAID TO DTC OR ITS NOMINEE, AS THE REGISTERED OWNER, OR
PROVIDE ANY NOTICES TO THE BENEFICIAL OWNERS OR THAT THEY WILL
DO SO ON A TIMELY BASIS, OR THAT DTC WILL ACT IN THE MANNER
DESCRIBED IN THIS OFFICIAL STATEMENT.
Portions of the foregoing concerning DTC and DTC's Book-Entry System are based on
information furnished by DTC to the City. No representation is made herein by the City as to the
accuracy or completeness of such information.
Discontinuance of Book-Entry Only System
In the event that the book-entry system is discontinued and the Beneficial Owners
become the registered owners of the Series 2007 Bonds, interest on each Series 2007 Bond will
be paid by check or draft of the Paying Agent mailed to the person in whose name the Series
2007 Bond is registered, on the fifteenth (15th) day of the month next preceding each interest
payment date (the "Record Date"), provided, however at the request of any holder of at least
$1,000,000 aggregate principal amount of a Series 2007 Bond, interest may be payable by wire
transfer to the bank account number on file with the Paying Agent on or before the Record Date.
Principal of the Series 2007 Bonds will be payable upon presentation and surrender of the Series
2007 Bonds at the designated corporate trust office of the Paying Agent.
Negotiability, Registration and Cancellation
Subject to the provisions of the Resolution, at the option of any registered owner of the
Series 2007 Bonds and upon surrender at the designated corporate trust office of the Bond
Registrar, with a written instrument of transfer satisfactory to the Bond Registrar duly executed
by the registered holder of a Series 2007 Bond or his or her duly authorized attorney, and upon
payment by such holder of any charges which the Bond Registrar or the City may make as
provided in the Resolution, the Series 2007 Bonds may be exchanged for Series 2007 Bonds of
the same series and maturity of any other authorized denominations.
The Bond Registrar shall keep books for the registration of Series 2007 Bonds and for the
registration of transfers of Series 2007 Bonds as provided in the Resolution. The Series 2007
Bonds shall be transferable by the registered owner thereof in person or by his or her attorney
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6
duly authorized in writing only upon the books of the City kept by the Bond Registrar and only
upon surrender thereof together with a written instrument of transfer satisfactory to the Bond
Registrar duly executed by the registered holder or his or her authorized attorney. Upon the
transfer of any such Series 2007 Bond, the City shall issue in the name of the transferee a new
Series 2007 Bond or Series 2007 Bonds.
The City, the Paying Agent and the Bond Registrar shall deem and treat the person in
whose name any Series 2007 Bond shall be registered upon the books kept by the Bond Registrar
as the absolute holder of such Series 2007 Bond, whether such Series 2007 Bond shall be
overdue or not, for the purpose of receiving payment of, or on account of, the principal of and
interest on such Series 2007 Bond as the same become due and for all other purposes. All such
payments so made to any such holder or upon his or her order shall be valid and effectual to
satisfy and discharge the liability upon such Series 2007 Bond to the extent of the sum or sums
so paid, and neither the City, the Paying Agent, nor the Bond Registrar shall be affected by any
notice to the contrary.
Transfer and Exchange
Subject to the provisions of the Resolution, in all cases in which the privilege of
exchanging Series 2007 Bonds or transferring Series 2007 Bonds is exercised, the City shall
execute and the Bond Registrar shall authenticate and deliver Series 2007 Bonds in accordance
with the provisions of the Resolution. All Series 2007 Bonds surrendered in any such exchanges
or transfers shall forthwith be delivered to the Bond Registrar and cancelled by the Bond
Registrar in the manner provided by the Resolution. There shall be no charge for any such
exchange or transfer of Series 2007 Bonds, but the City or the Bond Registrar may require
payment of a sum sufficient to pay taxes, fees or other governmental charges required to be paid
with respect to such exchange or transfer. Neither the City nor the Bond Registrar shall be
required to (a) transfer or exchange Series 2007 Bonds for a period from the Record Date to the
next ensuing interest payment date on such Series 2007 Bonds, or fifteen (15) days next
preceding any selection of Series 2007 Bonds to be redeemed or thereafter until the mailing of
any notice of redemption; or (b) transfer or exchange any Series 2007 Bonds called for
redemption.
Redemption Provisions
Optional Redemption. The Series 2007 Bonds maturing on June 1, 2018 and thereafter
are subject to redemption, at the option of the City prior to maturity on or after June 1, 2017, in
whole at any time or in part from time to time on the first day of any month in such manner as
shall be determined by the City, at a redemption price equal to the principal amount of the Series
2007 Bonds to be redeemed together with accrued interest to the date fixed for redemption.
If less than all of the Series 2007 Bonds are called for redemption, the Series 2007 Bonds
to be redeemed shall be selected in such manner as the City, in its discretion, shall determine,
and if less than all of a maturity shall be called for redemption, the Series 2007 Bonds to be
redeemed shall be selected by lot within such maturity.
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Notice of Redemption. Notice of redemption of the Series 2007 Bonds shall be mailed,
postage prepaid, by the Bond Registrar at least thirty (30) and not more than sixty (60) days
before the date fixed for redemption to the registered owners of any of the Series 2007 Bonds or
portions of the Series 2007 Bonds which are to be redeemed, at their addresses as they appear
fifteen (15) days prior to the date such notice is mailed on the registration books of the City kept
by the Bond Registrar.
Such notice of redemption shall set forth (i) the date fixed for redemption, (ii) the
redemption price to be paid, (iii) the name and address of the Bond Registrar, (iv) if less than all
of the Series 2007 Bonds shall be called for redemption, the distinctive numbers, letters and
CUSIP identification numbers, if any, of such Series 2007 Bonds to be redeemed, (v) in the case
of Series 2007 Bonds to be redeemed in part only, the portion of the principal amount thereof to
be redeemed, and (vi) any other information the City or the Bond Registrar deems relevant.
Subject to the rules of DTC as the current Securities Depository, in case any Series 2007 Bond is
to be redeemed in part only, the notice of redemption that relates to such Series 2007 Bond shall
state also that on or after the redemption date, upon surrender of the Series 2007 Bond, a new
Series 2007 Bond or Series 2007 Bonds of the same maturity, bearing interest at the same rate
and in aggregate principal amount equal to the unredeemed portion of such Series 2007 Bond,
will be issued. Failure of the registered owner of any Series 2007 Bonds which are to be
redeemed to receive any such notice shall not affect the validity of the proceedings for the
redemption of Series 2007 Bonds for which proper notice has been given. Interest shall cease to
accrue on any of the Series 2007 Bonds duly called for prior redemption if payment of the
redemption price has been duly made or provided for.
SECURITY FOR THE SERIES 2007 BONDS
General
The principal of and interest on the Bonds including the Series 2007 Bonds are payable
from the Pledged Revenues and secured by a first lien on and pledge of the Pledged Revenues,
which are the proceeds of the Utilities Tax deposited in the Sinking Fund created and established
under the Resolution.
The Series 2007 Bonds and the interest thereon shall not be and shall not constitute
an indebtedness of the City or of the State of Florida or any political subdivision thereof
within the meaning of any Constitutional, statutory, charter or other limitation of
indebtedness, and neither the full faith and credit nor the taxing powers of the State of
Florida or the City or any political subdivision thereof are pledged or obligated as security
for the payment of the principal of or interest on the Series 2007 Bonds and no holder or
holders of any Series 2007 Bonds shall ever have the right to compel the exercise of the ad
valorem taxing powers of the City, or taxation in any form of any real property therein to
pay the principal of the Series 2007 Bonds or interest thereon.
Covenant Concerning Utilities Taxes
The City covenants under the Resolution that, so long as any of the Bonds including the
Series 2007 Bonds remain Outstanding, it shall take all lawful action necessary or required to
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continue to entitle the City to receive the Utilities Tax proceeds and will not take any action
which would impair or adversely affect its receipt of such proceeds. The City further covenants
under the Resolution that it shall not repeal the Utilities Tax Ordinance. To the extent necessary
to meet its obligations under the provisions of the Resolution and to the extent legally permitted,
the City shall increase the rate of such Utilities Tax up to the highest rate permitted by law and
shall enact every substitute or supplemental ordinance that may for any reason become legally
necessary, or necessary to comply with the provisions of the Resolution. The City is required
under the Resolution to keep proper books and records regarding the collection and uses made of
the proceeds of the Utilities Tax, and that all records with respect thereto shall be available for
inspection at all reasonable times by the holders of any of the Series 2007 Bonds. For a more
detailed description of the requirements concerning the City's covenant as to the Utilities Taxes,
please refer to the "Summary of Certain Provisions of the Resolution" contained in APPENDIX
C attached hereto.
Reserve Account
The Resolution provides for the establishment and maintenance of a Debt Service
Reserve Account for each series of bonds issued pursuant to the terms of the Resolution (the
"Bonds") in an amount equal to the Debt Service Reserve Requirement for each such series of
Bonds. Unless provided otherwise by resolution of the City, each such separate Debt Service
Reserve Account shall constitute security only for the series of Bonds to which it relates. The
City has established a Debt Service Reserve Account for the Series 2007 Bonds.
The Resolution provides that the Debt Service Reserve Requirement may be satisfied, in
whole or in part, by a Reserve Account Credit Facility Substitute. A Reserve Account Credit
Facility Substitute may consist of a surety bond, an unconditional direct pay letter of credit
issued by any bank, a reserve account line of credit or a municipal bond insurance policy issued
by such institutions whose credit enhancement facilities have resulted in a rating on similar
obligations in the highest credit rating category by any Rating Agency and, in the case where
such Reserve Account Credit Facility Substitute is provided by an insurance company, such
insurer holds the highest policyholder rating accorded to insurers by any Rating Agency or
Agencies then rating the Series 2007 Bonds and by A. M. Best & Company or any comparable
service. For a general description of the restrictions and requirements relating to such Reserve
Account Credit Facility Substitutes, please refer to the "Summary of Certain Provisions of the
Resolution" contained in APPENDIX C attached hereto.
The Debt Service Reserve Requirement for the Series 2007 Bonds shall be in an amount
equal to the lesser of (a) the maximum amount of the principal of and interest on the Series 2007
Bonds becoming due in any succeeding fiscal year, (b) one hundred twenty-five percent (125%)
of the average annual amount of principal of and interest on the Series 2007 Bonds becoming
due in any succeeding fiscal year, or (c) ten percent (10%) of the "net proceeds" (as such-term is
defined under the Internal Revenue Code of 1986, as amended ("Code") for such purpose) of the
Series 2007 Bonds. The Debt Service Reserve Requirement with respect to the Series 2007
Bonds will be satisfied in full at the time of issuance of the Series 2007 Bonds. The Debt
Service Reserve Requirement for the Series 2002 Bonds is currently satisfied by a Reserve
Account Credit Facility Substitute and, with respect to any other series of Bonds to be issued
under the Resolution, shall be determined by subsequent proceedings of the City.
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(f) The balance, if any, remaining in the Sinking Fund after making the deposits
described in clauses (a) through (e) above and after all deficiencies thereof have
been remedied, may be released by the City from the lien of the Resolution and
used for any lawful municipal purpose.
If the amount deposited in any month to the credit of any of the accounts mentioned in (a)
through (d), inclusive, above shall be less than the amount required to be deposited therein under
the Resolution, the requirement therefor shall nevertheless be cumulative and the amount of any
deficiency in any month shall be added to the amount otherwise required to be deposited in each
month thereafter until such time as all such deficiencies have been made up. Any interest earned
on the amounts held to the credit of the Principal Account, Bond Redemption Account and Debt
Service Reserve Accounts shall be transferred to the credit of the Interest Account and credited
against the amount required to be deposited therein as described in clause (a) above.
Notwithstanding the foregoing provisions of the Resolution described in clauses (a)
through (d) above, if there shall be to the credit of the Interest Account, Principal Account or
Bond Redemption Account the amount required to be on deposit in such accounts on the next
succeeding Interest Payment Date, principal payment date, or due date of any term bonds called
for redemption, respectively, no further deposit to any such account, as the case may be, shall
then be required on account of the requirements described in said clauses (a) through (c) above.
Additional Bonds
The City is authorized under the Resolution to issue >~ passu additional bonds, payable
and secured equally and ratably with the Series 2002 Bonds, the Series 2007 Bonds and any
other Outstanding series of >l ari passu additional bonds, for any lawful purposes. Each such
series of ~ passu additional Bonds shall be on parity with and shall be entitled to the same
benefits and security under the Resolution as the Series 2002 Bonds, the Series 2007 Bonds and
any other Outstanding series of ~ passu additional bonds (except as to any Debt Service
Reserve Account established solely for any one or more series of Bonds); provided, however,
that in addition to compliance with certain other conditions as set forth under the Resolution, the
following conditions are complied with:
(a) The City must be current in all deposits required to be made into the various funds
and accounts established under the Resolution and all payments required to have
been theretofore deposited or made by the City under the provisions of the
Resolution and any supplemental resolution hereafter adopted for the issuance of
additional bonds. The City must also comply with the covenants and provisions
of the Resolution and any resolution supplemental thereto adopted for the purpose
of the issuance of such additional bonds.
(b} The Utilities Tax proceeds collected by the City in any consecutive twelve (12)
month period during the eighteen (18) month period immediately preceding the
month in which the >~ passu additional bonds are being issued, as certified by
the City's Finance Director, shall be equal to at least one hundred twenty-five per
centum (125%) of the Maximum Annual Debt Service Requirements on the
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Bonds then outstanding, any >l ari passu additional bonds then outstanding and the
passu additional bonds then proposed to be issued.
(c) In the event any ari passu additional bonds are issued for the purpose of
refunding the Series 2002 Bonds, the Series 2007 Bonds, or any other >l ari passu
additional bonds then Outstanding, the provisions of the Resolution described in
the foregoing paragraph shall not apply, provided that the issuance of such pari
passu additional bonds shall result in a reduction in, or shall not increase, the total
annual debt service payments over the life of the Bonds being refunded.
UTILITIES TAXES
As used in the Resolution and herein, the term "Utilities Tax" means the tax imposed by
the City on each and every purchase in the City of electricity, metered and bottled gas (natural
liquified petroleum gas or manufactured) and the tax the City receives on communications
services (the "Communications Services Tax" or "CST") pursuant to the provisions of the
Communications Services Tax Simplification Law codified as Chapter 202, Florida Statutes, as
amended and supplemented. Said term shall also apply to all taxes imposed by the City on the
purchase of utility services other than water and communication services, whether levied in the
amounts prescribed by the Utilities Tax Ordinance (as defined herein) or in any other amounts
and whether imposed on the purchase of the same utilities services or any other or additional
utilities services, by amendment to the Utilities Tax Ordinance or such other resolution or
ordinance of the City. This definition shall be applicable to the Series 2002 Bonds, the Series
2007 Bonds and all >I ari passu additional bonds issued pursuant to the Resolution. The City has
covenanted in the Resolution that it will take all action permitted by law to collect the Utilities
Tax proceeds in the amount necessary to meet the requirements under the Resolution.
Section 166.231, Florida Statutes, as amended, authorizes any Florida municipality to
levy a tax on the purchase within such municipality of electricity, metered natural gas, liquified
petroleum gas either metered or bottled, manufactured gas either metered or bottled and water
service. Currently, the tax on the foregoing services may not exceed ten percent (10%) of the
payments received by the sellers of such utilities service from purchasers, except in the case of
fuel oil for which the maximum tax is four (4) cents per gallon. However, for municipalities
levying less than the maximum rate often percent (10%), the maximum tax on fuel oil shall bear
the same proportion to four (4) cents per gallon which the tax rate actually levied for the utilities
with a maximum rate of ten percent (10%) bears to ten percent (10%). Utilities taxes must be
collected by the seller of the utilities service from purchasers at the time of payment for such
service and remitted to the taxing municipality as prescribed by ordinance of the municipality.
Certain taxable purchases and certain purchasers of taxable services are exempt from the
levy of such utilities taxes by municipalities as follows:
(a) The purchase of natural gas, manufactured gas or fuel oil by a public or
private utility, either for resale or for use as a fuel in the generation of electricity, or the
purchase of fuel oil or kerosene for use as an aircraft engine fuel or propellant or for use
in internal combustion engines is exempt from the levy of the utilities tax.
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(b) A municipality may exempt from the utilities tax the purchase of metered
or bottled gas (natural liquified petroleum gas or manufactured) or fuel oil for agricultural
purposes.
(c) A municipality may exempt from the utilities tax imposed any amount up
to, and including, the total amount of electricity, metered natural gas, liquified petroleum
gas either metered or bottled, or manufactured gas either metered or bottled purchased
per month, or reduce the rate of taxation on the purchase of such electricity or gas when
purchased by an industrial consumer which uses the electricity or gas directly in
industrial manufacturing, processing, compounding, or a production process, at a fixed
location in the municipality, of items of tangible personal property for sale. The
municipality shall establish the requirements for qualification for this exemption in the
manner prescribed by ordinance. Possession by a seller of a written certification by the
purchaser, certifying the purchaser's entitlement to an exemption described herein,
relieves the seller from the responsibility of collecting the tax on the nontaxable amounts,
and the municipality shall look solely to the purchaser for recovery of such tax if it
determines that the purchaser was not entitled to the exemption.
(d) A municipality may exempt any amount up to, and including, the first 500
kilowatt hours of electricity purchased per month for residential use, and such exemption
shall apply to each separate residential unit regardless of whether such unit is on a
separate meter or a central meter, and shall be passed on to each individual tenant.
(e) Purchases by the United States Government, the State of Florida, and all
counties, school districts and municipalities of the State of Florida, and by public bodies
exempted by law or court order, are exempt from the levy of such tax. A municipality
may exempt from the levy of such tax purchases of taxable items by any towns, villages,
special tax school districts, special road and bridge districts, bridge districts, and all other
districts in the State of Florida, as well as certain nonprofit corporations or cooperative
associations which provide water utility services to no more than 13,500 equivalent
residential units, ownership of which will revert to a political subdivision upon retirement
of all outstanding indebtedness, and shall exempt purchases by any recognized church in
the State of Florida for use exclusively for church purposes.
(f) A municipality may exempt not less than fifty percent (50%) of the
utilities tax imposed on purchasers of electrical energy who are determined to be eligible
for the exemption provided by Section 212.08(15), Florida Statutes by the Department of
Revenue.
(g) A municipality may enact an ordinance for exemption of an area
nominated as an enterprise zone pursuant to Section 290.0055, Florida Statutes that has
not yet been designated pursuant to Section 290.0065, Florida Statutes, provided,
however, that eligibility for such exemption shall expire on December 31, 2015, except
that any qualified business located within an enterprise zone which has satisfied the
requirements of Section 166.231(8), Florida Statutes prior to December 31, 2015, shall
continue to be exempt from the utilities tax (subject to the limitations set forth therein)
after that date.
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Chapter 50 of Title V entitled "Public Works" of the City's Code of Ordinances, as
amended, contains the terms of the City's levy of its Utilities Tax (the "Utility Tax Ordinance").
The City currently levies the Utility Tax at the rate of 9.7% on sales of electricity and 8.7% on
the sale of metered or bottled gas (natural liquified petroleum gas or manufactured). The City
also levies a tax on the sale of fuel oil. The Utility Tax Ordinance states that because the City
imposes a tax which is less than the maximum rate of ten percent (10%) allowable by Florida
Statute Section 166.231(1), the maximum tax on fuel oil shall bear the same proportion to $.04
per gallon which the tax rate of 8.7% levied as described above on the sale of metered or bottled
gas bears to 10%.
Residential dwelling units are exempted from the electricity portion of the Utility Tax for
the first ninety (90) kilowatt hours per month, then such residence will be subject to the tax on
the sale of electricity. Also, the Utilities Tax is not charged with respect to any fuel adjustment
charge on the bill.
The purchase of natural gas or fuel oil by a public or private utility, either for resale or for
use as fuel in the generation of electricity, or the purchase of fuel oil or kerosene for use as an
aircraft engine fuel or propellant or for use in internal combustion engines is exempt from the
City's Utilities Tax. Also exempted from the City's Utilities Tax are: the United States
Government, the State of Florida, counties, school districts, municipalities of the State of Florida,
towns, villages, special tax school districts, special road and bridge districts, bridge districts, all
other districts in the State of Florida, public bodies exempted by law or court order and any
recognized church if used exclusively for church purposes. The City Commission is solely
responsible for setting or revising the Utilities Tax it levies, which it accomplishes through
amendments and supplements to the Utilities Tax Ordinance.
Communications Services Tax
The Original Resolution defined "Utilities Tax" as the tax imposed by the City on each
and every purchase in the City of electricity, metered and bottled gas (natural liquified petroleum
gas or manufactured), and telecommunication services. However, effective October 1, 2001, the
Legislature of the State of Florida repealed the authorization for the levy by counties and
municipalities, including the City, of the utilities or public service tax on telecommunication
services and instead authorized the implementation of the Communications Services Tax or
"CST." The CST was intended to replace repealed local sources such as the City's Utilities Tax
on telecommunication services. The legislative change was codified in Chapter 202, Florida
Statutes, as amended and supplemented (herein the "CST Act").
The CST includes, but is not limited to, a tax on land line telephone services, including
long distance, wireless telephone services, cable television services, pager services and facsimile
services. The CST on communication services is charged to the service addresses within the
City.
In the CST Act, the Florida Legislature levied a local CST for each county and
municipality at a conversion rate calculated to produce an amount of revenue for each respective
local government equal to the amount of revenue the local government would have received
from the repealed sources. The aforementioned conversion rates were reduced on October 1,
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2002 for that fiscal year and each fiscal year thereafter since the first year the CST was in effect
it was increased because of a transition lag.
The CST Act authorized each local government to increase the CST to a maximum rate
that was below the specified conversion rate found for that unit of local government in the CST
Act. The maximum rate for municipalities, including the City, is 5.1 percent (5.10%). Under the
CST Act, if the local government forgoes collecting a permit fee it may increase the maximum
rate by an add-on rate. In the case of municipalities, including the City, the add-on rate is 0.12
percent (.12%) which combined with the maximum rate for the City creates an annualized rate of
5.22 percent (5.22%).
Exemption of CST
The CST Act exempts all purchases by the federal government and its agencies and
instrumentalities, the State of Florida and any county, municipality or political subdivision of the
State of Florida and any religious or educational organization exempt from federal income tax
under Section 501(c)(3) of the Internal Revenue Code.
Collection
The CST must be collected by the provider from purchasers and remitted to the State of
Florida Department of Revenue (the "Department"). The proceeds of the CST, less the
Department's costs of administration, are transferred to the Communications Services Tax
Clearing Trust Fund held by the Department and distributed to the City on a monthly basis.
UTILITIES/COMMUNICATIONS SERVICES TAX COLLECTIONS
The following table sets forth information about Utilities Tax proceeds collected by the
City in each of the City's last five (5) full fiscal years, and the anticipated Utilities Tax proceeds
budgeted for fiscal year 2006 as compared with debt service requirements.
City of Delray Beach
Utilities Tax Collections/Debt Service Coverage
Year Ended September 30
2002 2003 2004 2005 2006
Utility Taxes (Electric, gas,
fuel) $3,796,778 $4,083,955 $4,028,893 $4,167,130 $4,372,774
Communications Services Tax 3,934,824 4,009,109 3,675,799 3,921,012 4,305,935
Total $7,875,836 $8,093,064 $7,704,692 $8,088,142 $8,678,709
Debt Service
Annual 2,393,900 2,315,207 2,309,835 2,305,085 2,303,835
Maximum 2,401,171 2,309,835 2,309,835 2,305,935 2,305,935
Debt Service Coverage
Annual 3.29 3.50 3.34 3.51 3.77
Maximum 3.28 3.50 3.34 3.51 3.76
Source: Comprehensive Annual Financial Reports of the City.
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BOND INSURANCE
The MBIA Insurance Corporation Insurance Policy
The following information has been furnished by MBIA Insurance Corporation ("MBIA"
or the "Bond Insurer") for use in this Official Statement. Reference is made to APPENDIX E for
a specimen of MBIA's financial guaranty insurance policy (the "Bond Insurance Policy"}.
MBIA does not accept any responsibility for the accuracy or completeness of this Official
Statement or any information or disclosure contained herein, or omitted herefrom, other than
with respect to the accuracy of the information regarding the Bond Insurance Policy and MBIA
set forth under the this heading. Additionally, MBIA makes no representation regarding the
Series 2007 Bonds or the advisability of investing in the Series 2007 Bonds.
The Bond Insurance Policy unconditionally and irrevocably guarantees the full and
complete payment required to be made by or on behalf of the [Issuer] to the Paying Agent or its
successor of an amount equal to (i) the principal of (either at the stated maturity or by an
advancement of maturity pursuant to a mandatory sinking fund payment) and interest on, the
Series 2007 Bonds as such payments shall become due but shall not be so paid (except that in the
event of any acceleration of the due date of such principal by reason of mandatory or optional
redemption or acceleration resulting from default or otherwise, other than any advancement of
maturity pursuant to a mandatory sinking fund payment, the payments guaranteed by the Bond
Insurance Policy shall be made in such amounts and at such times as such payments of principal
would have been due had there not been any such acceleration, unless MBIA elects in its sole
discretion, to pay in whole or in part any principal due by reason of such acceleration); and (ii)
the reimbursement of any such payment which is subsequently recovered from any Owner of the
Series 2007 Bonds pursuant to a final judgment by a court of competent jurisdiction that such
payment constitutes an avoidable preference to such Owner within the meaning of any applicable
bankruptcy law (a "Preference").
The Bond Insurance Policy does not insure against loss of any prepayment premium
which may at any time be payable with respect to any Series 2007 Bonds. The Bond Insurance
Policy does not, under any circumstance, insure against loss relating to: (i) optional or
mandatory redemptions (other than mandatory sinking fund redemptions); (ii) any payments to
be made on an accelerated basis; (iii) payments of the purchase price of Series 2007 Bonds upon
tender by an owner thereof; or (iv) any Preference relating to (i) through (iii) above. MBIA's
Policy also does not insure against nonpayment of principal of or interest on the Series 2007
Bonds resulting from the insolvency, negligence or any other act or omission of the Paying
Agent or any other paying agent for the Series 2007 Bonds.
Upon receipt of telephonic or telegraphic notice, such notice subsequently confirmed in
writing by registered or certified mail, or upon receipt of written notice by registered or certified
mail, by MBIA from the Paying Agent or any owner of a Series 2007 Bond the payment of an
insured amount for which is then due, that such required payment has not been made, MBIA on
the due date of such payment or within one business day after receipt of notice of such
nonpayment, whichever is later, will make a deposit of funds, in an account with U.S. Bank
Trust National Association, in New York, New York, or its successor, sufficient for the payment
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of any such insured amounts which are then due. Upon presentment and surrender of such Series
2007 Bonds or presentment of such other proof of ownership of the Series 2007 Bonds, together
with any appropriate instruments of assignment to evidence the assignment of the insured
amounts due on the Series 2007 Bonds as are paid by MBIA, and appropriate instruments to
effect the appointment of MBIA as agent for such owners of the Series 2007 Bonds in any legal
proceeding related to payment of insured amounts on the Series 2007 Bonds, such instruments
being in a form satisfactory to U.S. Bank Trust National Association, U.S. Bank Trust National
Association shall disburse to such owners or the Paying Agent payment of the insured amounts
due on such Series 2007 Bonds, less any amount held by the Paying Agent for the payment of
such insured amounts and legally available therefor.
MBIA Insurance Corporation
MBIA is the principal operating subsidiary of MBIA Inc., a New York Stock Exchange
listed company (the "Company"). The Company is not obligated to pay the debts of or claims
against MBIA. MBIA is domiciled in the State of New York and licensed to do business in and
subject to regulation under the laws of all 50 states, the District of Columbia, the Commonwealth
of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the Virgin Islands of the
United States and the Territory of Guam. MBIA, either directly or through subsidiaries, is
licensed to do business in the Republic of France, the United Kingdom and the Kingdom of
Spain and is subject to regulation under the laws of those jurisdictions. In February 2007, MBIA
Corp. incorporated a new subsidiary, MBIA Mexico, S.A. de C.V. ("MBIA Mexico"), through
which it intends to write financial guarantee insurance in Mexico beginning in 2007. To date,
MBIA Mexico has had no operating activity.
The principal executive offices of MBIA are located at 113 King Street, Armonk, New
York 10504 and the main telephone number at that address is (914) 273-4545.
Regulation
As a financial guaranty insurance company licensed to do business in the State of New
York, MBIA is subject to the New York Insurance Law which, among other things, prescribes
minimum capital requirements and contingency reserves against liabilities for MBIA, limits the
classes and concentrations of investments that are made by MBIA and requires the approval of
policy rates and forms that are employed by MBIA. State law also regulates the amount of both
the aggregate and individual risks that may be insured by MBIA, the payment of dividends by
MBIA, changes in control with respect to MBIA and transactions among MBIA and its affiliates.
The Policy is not covered by the Property/Casualty Insurance Security Fund specified in
Article 76 of the New York Insurance Law.
Financial Strength Ratings of MBIA
Moody's Investors Service, Inc. rates the financial strength of MBIA "Aaa."
Standard & Poor's, a division of The McGraw-Hill Companies, Inc. rates the financial
strength of MBIA "AAA."
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Fitch Ratings rates the financial strength of MBIA "AAA."
Each rating of MBIA should be evaluated independently. The ratings reflect the
respective rating agency's current assessment of the creditworthiness of MBIA and its ability to
pay claims on its policies of insurance. Any further explanation as to the significance of the
above ratings maybe obtained only from the applicable rating agency.
The above ratings are not recommendations to buy, sell or hold the Series 2007 Bonds,
and such ratings may be subject to revision or withdrawal at any time by the rating agencies.
Any downward revision or withdrawal of any of the above ratings may have an adverse effect on
the market price of the Series 2007 Bonds. MBIA does not guaranty the market price of the
Series 2007 Bonds nor does it guaranty that the ratings on the Series 2007 Bonds will not be
revised or withdrawn.
MBIA Financial Information
As of December 31, 2006, MBIA had admitted assets of $10.9 billion (audited), total
liabilities of $6.9 billion (audited), and total capital and surplus of $4.0 billion (audited)
determined in accordance with statutory accounting practices prescribed or permitted by
insurance regulatory authorities. As of March 31, 2007, MBIA had admitted assets of $11.2
billion (unaudited), total liabilities of $7.0 billion (unaudited), and total capital and surplus of
$4.2 billion (unaudited) determined in accordance with statutory accounting practices prescribed
or permitted by insurance regulatory authorities.
For further information concerning MBIA, see the consolidated financial statements of
MBIA and its subsidiaries as of December 31, 2006 and December 31, 2005 and for each of the
three years in the period ended December 31, 2006, prepared in accordance with generally
accepted accounting principles, included in the Annual Report on Form 10-K of the Company
for the year ended December 31, 2006 and the consolidated financial statements of MBIA and its
subsidiaries as of March 31, 2007 and for the three month period ended March 31, 2007 and
March 31, 2006 included in the Quarterly Report on Form 10-Q of the Company for the quarter
ended March 31, 2007, which are hereby incorporated by reference into this Official Statement
and shall be deemed to be a part hereof.
Copies of the statutory financial statements filed by MBIA with the State of New York
Insurance Department are available over the Internet at the Company's web site at
http://www.mbia.com and at no cost, upon request to MBIA at its principal executive offices.
Incorporation of Certain Documents by Reference
The following documents filed by the Company with the Securities and Exchange
Commission (the "SEC") are incorporated by reference into this Official Statement:
(1) The Company's Annual Report on Form 10-K for the year ended December 31,
2006; and
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended March 31,
2007.
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Any documents, including any financial statements of MBIA and its subsidiaries that are
included therein or attached as exhibits thereto, filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of the Company's most recent Quarterly
Report on Form 10-Q or Annual Report on Form 10-K, and prior to the termination of the
offering of the Series 2007 Bonds offered hereby shall be deemed to be incorporated by
reference in this Official Statement and to be a part hereof from the respective dates of filing
such documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein, or contained in this Official Statement, shall be deemed to be
modified or superseded for purposes of this Official Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded, to constitute a
part of this Official Statement.
The Company files annual, quarterly and special reports, information statements and
other information with the SEC under File No. 1-9583. Copies of the Company's SEC filings
(including (1) the Company's Annual Report on Form 10-K for the year ended December 31,
2006, and (2) the Company's Quarterly Report on Form 10-Q for the quarter ended March 31,
2007) are available (i) over the Internet at the SEC's web site at http://www.sec.gov; (ii) at the
SEC's public reference room in Washington D.C.; (iii) over the Internet at the Company's web
site at http://www.mbia.com; and (iv) at no cost, upon request to MBIA at its principal executive
offices.
The insurance provided by this policy is not covered by the Florida Insurance Guaranty
Association created under chapter 631, Florida Statutes.
SURETY BOND
Application has been made to MBIA for a commitment to issue the Surety Bond. The
Surety Bond will provide that upon notice from the Paying Agent to the Bond Insurer to the
effect that insufficient amounts are on deposit in the Debt Service Reserve Account for the Series
2007 Bonds to pay the principal of (at maturity or pursuant to mandatory redemption
requirements) and interest on the Series 2007 Bonds, the Bond Insurer will promptly deposit
with the Paying Agent an amount sufficient to pay the principal of and interest on the Series
2007 Bonds or the available amount of the Surety Bond, whichever is less. Upon the later o£ (i)
three (3) days after receipt by the Bond Insurer of a Demand for Payment in the form attached to
the Surety Bond, duly executed by the Paying Agent; or (ii) the payment date of the Bonds as
specified in the Demand for Payment presented by the Paying Agent to the Bond Insurer, the
Bond Insurer will make a deposit of funds in an account with U.S. Bank Trust National
Association, in New York, New York, or its successor, sufficient for the payment to the Paying
Agent, of amounts which are then due to the Paying Agent (as specified in the Demand for
Payment) subject to the Surety Bond Coverage.
The available amount of the Debt Service Reserve Fund Surety Bond is the initial face
amount of the Debt Service Reserve Fund Surety Bond less the amount of any previous deposits
by the Bond Insurer with the Paying Agent which have not been reimbursed by the City. The
City and the Bond Insurer will enter into a Financial Guaranty Agreement on or before the initial
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date of delivery of the Series 2007 Bonds (the "Agreement"). Pursuant to the Agreement, the
City is required to reimburse the Bond Insurer, within one year of any deposit, the amount of
such deposit made by the Bond Insurer with the Paying Agent under the Surety Bond. Such
reimbursement shall be made only from Pledged Revenues and only after all required deposits to
the Interest Account, Principal Account and Bond Redemption Account have been made
pursuant to the provisions of the Resolution.
Under the terms of the Agreement, the City is required to reimburse the Bond Insurer,
with interest, until the face amount of the Surety Bond is reinstated. No optional redemption of
Series 2007 Bonds may be made until the Surety Bond is reinstated. The Surety Bond will be
held by the Paying Agent in the Debt Service Reserve Account for the Series 2007 Bonds and is
provided as an alternative to the City depositing funds equal to the Debt Service Reserve
Requirement for the Series 2007 Bonds. The Surety Bond will be issued in the face amount
equal to the Debt Service Reserve Requirement for the Series 2007 Bonds and the premium
therefor will be fully paid by the City at the time of delivery of the Series 2007 Bonds.
A specimen of the Surety Bond is attached hereto as APPENDIX F.
THE CITY
Location and Size
The City is a municipal corporation organized and existing under the laws of the State of
Florida. The City, located on Florida's Gold Coast, is the third largest city in Palm Beach
County with an estimated permanent population of 64,095 (as of 2006) with another estimated
12,600 seasonal residents, and sixteen square miles within its municipal boundaries. Lying 18
miles south of West Palm Beach and 50 miles north of Miami along the Atlantic Ocean, the City
has been able to participate in the growth of South Florida and benefit from the economic growth
of this area in general.
The City is governed by a City Commission and operates under aCommission-Manager
form of government. The City Commission appoints afull-time City Manager, and afull-time
City Attorney. The City employs afull-time Director of Finance, who has the responsibility for
all internal auditing and financial record keeping operations of the City.
Brief Description
The City is primarily a residential community of homes and condominium apartments
with a balance of commercial, light industrial and government complexes. It is a mature
community with 97.8% build-out (expected build-out in the year 2013) and, therefore, its focus
is not upon growth, but upon quality development of remaining vacant areas and redevelopment
of areas in a state of decline or deterioration. The City has many recreational facilities including
tennis, golf, boating, fishing, water sports, and lawn bowling. During the winter months, the
hotels, motels, and restaurants fill to capacity with visiting tourists and winter residents. The
City's famous mile-long beach is an attraction for residents and tourists. The Intracoastal
Waterway provides boat dockage, and the Boynton Inlet gives access to the Atlantic Ocean for
boating and salt water fishing. Lake Ida, adjacent to the City, also provides fishing and water
skiing.
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Further information on the City is contained in "APPENDIX A General Information
Concerning the City of Delray Beach, Florida and Palm Beach County."
Budgeting, Accounting and Auditing
The City follows these procedures in establishing the budgetary data reflected in its
general purpose financial statements:
1. No later than the first regular Commission meeting in August, the City Manager
submits to the City Commission a proposed operating budget for the fiscal year commencing the
following October 1. The operating budget includes proposed expenditures and the means of
financing them.
2. Public hearings are conducted at City Hall to obtain taxpayer comments.
3. The City advises the County Property Appraiser of the proposed millage rate and
the day, time and place of the public hearing for budget acceptance.
budget.
4. The public hearing is held to obtain final taxpayer input and to adopt the final
5. The budget and related millage rates are legally enacted through passage of
separate resolutions.
6. Changes or amendments to the total budgeted expenditures of the City or a
department must be approved by the City Commission; however, changes within a department
which do not affect the total departmental expenditures may be approved at the administrative
level. Accordingly, the legal level of control is at the department level. All unencumbered
balances lapse at year end.
The City reports major governmental funds consisting of a General Fund and a Capital
Improvements Fund, a major Proprietary Fund consisting of a Water and Sewer Fund; as well as
Internal Service Funds and Pension Trust Funds.
Non-appropriated budgets, which are not legally adopted or legally required to be
adopted, are prepared for the Law Enforcement Trust Fund, Community Development Fund,
Beautification Fund, Tennis Stadium Fund, Water and Sewer Fund, Delray Beach Municipal
Golf Course Fund, Lakeview Golf Course Fund, City Marina Fund, Sanitation Fund, Stormwater
Utility Fund, Central Garage Fund and the Insurance Fund. The Finance Department monitors
the expenditures of these funds through the use of budgets prepared by management.
Operating Budget for Fiscal Year Ended September 30, 2006
Total budgeted operating revenues and other financing sources for the General Fund for
fiscal year ending September 30, 2006 are $93,317,611. See "APPENDIX B -City of Delray
Beach, Florida General Purpose Financial Statements and other Information for the Fiscal Year
ended September 30, 2006."
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Each month of the current fiscal year, actual revenues and expenditures of the General
Fund are compared with budgeted amounts by line item. Variations of actual revenues and
expenditures compared to budgeted amounts which are unfavorable are referred to the respective
department heads for explanations and possible amendment. A summary report of the status of
the budget is submitted to the City Manager for review and action. At the close of the 2006
fiscal year (September 30, 2006), total revenues were 101 % of the annual budget amount and
total expenditures were 98% of the annual budget amount.
DEBT SUMMARY
The information under this heading is subject in all respects to the more detailed financial
information in the audited financial statements of the City. See, "APPENDIX B -City of Delray
Beach, Florida General Purpose Financial Statements and other Information for the Fiscal Year
Ended September 30, 2006."
Selected Debt Data
The only Bonds currently Outstanding secured by the Pledged Revenues is the Series
2002 Bonds, issued on December 19, 2002, to refund all prior Outstanding series of the City's
utilities tax revenue bonds. The table below sets forth the outstanding debt service requirements
for the Series 2002 Bonds:
Bond Year Ending
June 30 Principal Interest Debt Service
2007 $1,990,000 $315,936 $2,305,936
2008 2,035,000 246,286 2,281,286
2009 1,460,000 175,060 1,635,060
2010 450,000 123,960 573,960
2011 470,000 108,660 578,660
2012 485,000 91,740 576,740
2013 510,000 73,796 583,796
2014 420,000 54,160 474,160
2015 440,000 37,360 477,360
2016 460,000 19,320 479,320
Total $8,720,000 $1,246,278 $9,966,278
Source: City of Delray Beach Comprehensive Annual Financial Report for year ended
September 30, 2006.
RATINGS
It is expected that Moody's Investors Service, Inc. ("Moody's") and Standard & Poor's
Public Finance Ratings Services, a division of McGraw-Hill Companies ("S&P") will give the
Series 2007 Bonds ratings of "Aaa" and "AAA," respectively, on the understanding that the
standard policy of municipal bond insurance insuring the total payment of the principal of and
interest on the Series 2007 Bonds will be issued by MBIA upon the issuance of the Series 2007
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Bonds. Moody's and S&P have assigned the Series 2007 Bonds underlying ratings of "A2" and
"A," respectively.
Such ratings reflect only the views of the aforesaid credit rating organizations, and any
desired explanation of the significance of these ratings should be obtained only from the rating
agency furnishing the same, at the following addresses: S&P at 55 Water Street, New York,
New York 10041 and Moody's at 99 Church Street, New York, New York 10007. Generally, a
rating agency bases its rating on the information and materials furnished to it and on
investigations, studies and assumptions of its own. There is no assurance that such ratings will
continue for any given period of time, or that such ratings may not be lowered or withdrawn
entirely by the respective rating agency if, in its judgment, circumstances so warrant. Any such
downward change or withdrawal of either or both such ratings may have an adverse effect on the
market price of the Series 2007 Bonds.
LEGALITY
Certain legal matters in connection with the issuance of the Series 2007 Bonds are subject
to the approval of Greenberg Traurig, P.A., West Palm Beach, Florida, Bond Counsel, whose
Bond Counsel opinion will be available at the time of delivery of the Series 2007 Bonds. The
proposed form of such opinion of Bond Counsel is attached hereto as APPENDIX D. Certain
legal matters will be passed upon for the City by its City Attorney, Susan A. Ruby, Esquire.
Certain legal matters will be passed upon for the Underwriter by its counsel Moskowitz,
Mandell, Salim & Simowitz, P.A., Fort Lauderdale, Florida. Greenberg Traurig, P.A. is also
serving as Disclosure Counsel to the City.
CONTINGENCY FEES
The City has retained Bond Counsel, its financial advisor, the Underwriter (who in turn
retained Underwriter's counsel), the Paying Agent and the Registrar with respect to the
authorization, sale, execution and delivery of the Series 2007 Bonds. Payment of the fees of
such professionals are each contingent upon the issuance of the Series 2007 Bonds.
TAX EXEMPTION
The Internal Revenue Code of 1986, as amended (the "Code") imposes certain
requirements that must be met subsequent to the issuance and delivery of the Series 2007 Bonds
for interest thereon to be and remain excluded from gross income for federal income tax
purposes. Noncompliance with such requirements could cause the interest on the Series 2007
Bonds to be included in gross income for federal income tax purposes retroactive to the date of
issue of the Series 2007 Bonds. The City has covenanted in the Resolution to comply with each
requirement of the Code necessary to maintain the exclusion of the interest on the Series 2007
Bonds from gross income for federal income tax purposes pursuant to Section 103(a) of the
Code.
In the opinion of Bond Counsel, under existing law, and assuming continuing compliance
with the aforementioned covenant, interest on the Series 2007 Bonds is excluded from gross
income for federal income tax purposes. Bond Counsel is also of the opinion that the Series 2007
Bonds are not "specified private activity bonds" within the meaning of Section 57(a)(5) of the
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Code and, therefore, interest on the Series 2007 Bonds will not be treated as a preference item
for purposes of computing the alternative minimum tax imposed by Section 55 of the Code.
Interest on the Series 2007 Bonds owned by corporations will, however, be taken into account in
determining the alternative minimum tax imposed by Section 55 of the Code on seventy-five
percent (75%) of the excess of adjusted current earnings over alternative minimum taxable
income (determined without regard to this adjustment and the alternative tax net operating loss
deduction).
[Bond Counsel is of the opinion that the difference between the principal amount of the
Series 2007 Bonds maturing on June 1, in the years 20_ through and including 20_
(collectively, the "Discount Bonds") and the initial offering price to the public (excluding bond
houses, brokers, or similar persons or organizations acting in the capacity of underwriters or
wholesalers), at which price a substantial amount of the Discount Bonds of the same maturity
was sold, constitutes original issue discount which is excluded from gross income for federal
income tax purposes, to the same extent as interest on the Series 2007 Bonds. Further, such
original issue discount accrues actuarially on a constant interest basis over the term of each
Discount Bond and the basis of each Discount Bond acquired at such initial offering price by an
initial purchaser thereof will be increased by the amount of such accrued original issue discount.
The accrual of such initial issue discount may be taken into account as an increase in the amount
of tax exempt income for purposes of determining various other tax consequences of owning the
Discount Bonds, even though there will not be a corresponding cash payment. Owners of
Discount Bonds are advised that they should consult with their own advisors with respect to the
state and local tax consequences of owning the Discount Bonds.]
Bond Counsel has not undertaken to advise in the future whether any events after the date
of issuance of the Series 2007 Bonds may affect the tax status of interest on the Series 2007
Bonds. No assurance can be given that future legislation, or amendments to the Code, if enacted
into law, will not contain provisions which could directly or indirectly reduce the benefit of the
exclusion of the interest on the Series 2007 Bonds from gross income for federal income tax
purposes.
Bond Counsel is also of the opinion that the Series 2007 Bonds and interest thereon are
exempt from taxation under the existing laws of the State of Florida, except as to estate taxes and
taxes imposed by Chapter 220, Florida Statutes, on interest, income and profits on debt
obligations owned by corporations, banks and savings associations.
Furthermore, Bond Counsel expresses no opinion as to any federal, State or local tax law
consequences with respect to the Series 2007 Bonds, or the interest thereon, if any action is taken
with respect to the Series 2007 Bonds or the proceeds thereof upon the advice or approval of
bond counsel other than Bond Counsel.
Although Bond Counsel has rendered an opinion that interest on the Series 2007 Bonds is
excluded from gross income for federal income tax purposes, a Bondholder's federal, State or
local tax liability may otherwise be affected by the ownership or disposition of the Series 2007
Bonds. The nature and extent of these other tax consequences will depend upon the
Bondholder's other items of income or deduction. Without limiting the generality of the
foregoing, prospective purchasers of the Series 2007 Bonds should be aware that (i) Section 265
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of the Code denies a deduction for interest on indebtedness incurred or continued to purchase or
carry the Series 2007 Bonds or, in the case of a financial institution, that portion of a holder's
interest expense allocated to interest on the Series 2007 Bonds, (ii) with respect to insurance
companies subject to the tax imposed by Section 831 of the Code, Section 832(b)(5)(B)(i)
reduces the deduction for loss reserves by 15 percent (15%) of the sum of certain items,
including interest on the Series 2007 Bonds, (iii) interest on the Series 2007 Bonds earned by
certain foreign corporations doing business in the United States could be subject to a branch
profits tax imposed by Section 884 of the Code, (iv) passive investment income, including
interest on the Series 2007 Bonds, may be subject to federal income taxation under Section 1375,
of the Code for Subchapter S corporations that have Subchapter C earnings and profits at the
close of the taxable year if greater than twenty-five percent (25%} of the gross receipts of such
Subchapter S corporation is passive investment income, and (v) Section 86 of the Code requires
recipients of certain Social Security and certain Railroad Retirement benefits to take into
account, in determining the taxability of such benefits, receipts or accruals of interest on the
Series 2007 Bonds. Bond Counsel has expressed no opinion regarding any such other tax
consequences.
UNDERWRITING
The Series 2007 Bonds are being purchased by the Underwriter pursuant to a bond
purchase agreement between the City and the Underwriter as shown on the cover page hereof,
from the City at an aggregate purchase price of $ (the face amount of the Series
2007 Bonds plus net original issue [premium] [discount] of $ less
underwriter's discount of $ ). See "ESTIMATED SOURCES AND USES OF
FUNDS" herein. The Underwriter will be obligated to purchase all of the Series 2007 Bonds if
any are purchased. Following the initial public offering, the public offering prices may be
changed from time to time by the Underwriter.
The Series 2007 Bonds may be offered and sold to certain dealers (including underwriters
and other dealers depositing such Series 2007 Bonds into investment trusts) and others at prices
lower than the public offering prices set forth on the inside cover page hereof.
CONTINUING DISCLOSURE UNDERTAKING
In accordance with the continuing disclosure requirements of Rule 15c2-12 (the "Rule")
promulgated by the Securities and Exchange Commission (the "SEC"), the City has agreed
pursuant to the terms of the Resolution as follows:
(a) The City undertakes and agrees to provide to each nationally recognized
municipal securities information repository (each a "NRMSIR") and to the State of Florida
information depository (the "SID"), if and when such a SID is created, the (i) City's general
purpose financial statements generally consistent with the financial statements presented in
APPENDIX B to this Official Statement and (ii) the information concerning the Utilities Tax
collections within the City with respect to the Communications Services Tax, and with respect to
electricity, gas and fuel oil, the Utilities Tax rate or rates, exemptions from the Utilities Tax and
amendments to the Utilities Tax Ordinance generally consistent with the information set forth
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herein under the heading "UTILITIES TAXES." The information referred to in clauses (i) and
(ii) is herein collectively referred to as the "Annual Information."
(b) The Annual Information described in clause (i) of paragraph (a) above in audited
form (for as long as the City provides such financial information in audited form) is expected to
be available on or before March 31 of each year for the fiscal year ending on the preceding
September 30, commencing March 31, 2008 for the fiscal year ending on the preceding
September 30, 2007. The Annual Information referred to in clause (i) of paragraph (a) above in
unaudited form (if the audited financial statements are not available or if the City no longer
provides such financial information in audited form) will be available on or before March 31 for
the fiscal year ending on the preceding September 30. The City also agrees to provide the
Annual Information to each registered owner and Beneficial Owner of the Series 2007 Bonds
who requests such information and pays to the City its costs of reproduction and transmission of
such Annual Information. The City agrees to provide to each NRMSIR and the SID, if any,
timely notice of its failure to provide the Annual Information. Such notice shall also indicate the
reason for such failure and when the City reasonably expects such Annual Information will be
available.
(c) The Annual Information referred to in clause (i) of paragraph (a) above and
presented in APPENDIX B to this Official Statement has been prepared in accordance with
governmental accounting standards promulgated by the Government Accounting Standards
Board, as in effect from time to time, as such principles are modified by generally accepted
accounting principles, promulgated by the Financial Accounting Standards Board, as in effect
from time to time, and such other State of Florida mandated accounting principles as in effect
from time to time.
(d) If, as authorized by paragraph (fj below, the City's undertaking with respect to
paragraph (c) above requires amending, the City undertakes and agrees that the Annual
Information described in clause (i) of paragraph (a) above for the fiscal year in which the
amendment is made will, to the extent possible, present a comparison between the Annual
Information prepared on the basis of the new accounting principles and the Annual Information
prepared on the basis of the accounting principles described in paragraph (c) above. The City
agrees that such a comparison will, to the extent possible, include a qualitative discussion of the
differences in the accounting principles and the impact of the change on the presentation of the
Annual Information.
(e) The City undertakes and agrees to provide in a timely manner, to each NRMSIR
or to the Municipal Securities Rulemaking Board and to the SID, if any, notice of the occurrence
of any of the following events with respect to the Series 2007 Bonds, if material:
(i) Principal and interest payment delinquencies;
(ii) Non-payment related defaults;
(iii) Unscheduled draws on any reserve account reflecting financial difficulties;
(iv) Unscheduled draws on credit enhancements reflecting financial
difficulties;
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(v) Substitution of credit or liquidity providers, or their failure to perform;
(vi} Adverse tax opinions or events affecting the tax-exempt status of the
Series 2007 Bonds;
(vii) Modifications to rights of Bondholders;
(viii) Bond calls (other than scheduled mandatory sinking fund redemptions);
(ix) Defeasances of the Series 2007 Bonds;
(x) Release, substitution, or sale of property securing repayment of the Series
2007 Bonds;
(xi) Rating changes; and
(xii) Failure of the City to comply with any provision of its undertaking as
described under this heading, which in all cases such failure shall be
deemed material.
Notwithstanding the foregoing, notice of the events described in clauses (viii) and (ix)
above need not be given any earlier than the time notice is required to be given to the registered
owners of the Series 2007 Bonds.
(f) Notwithstanding any provision of the Resolution to the contrary regarding
amendments or supplements, the City undertakes and agrees to amend and/or supplement the
City's undertaking (including the amendments referred to in paragraph (d) above) only if:
(i) The amendment or supplement is made only in connection with a change
in circumstances existing at the time the Series 2007 Bonds were
originally issued that arises from (a) a change in law, (b) SEC
pronouncements or interpretations, (c) a judicial decision affecting the
Rule or (d) a change in the nature of the City's operations or the activities
that generate the Utilities Taxes;
(ii) The City's undertaking, as amended, would have complied with the
requirements of the Rule at the time the Series 2007 Bonds were originally
issued after taking into account any amendments or interpretations of the
Rule, as well as any change in circumstances; and
(iii) The amendment or supplement does not materially impair the interest of
the registered owners and Beneficial Owners of the Series 2007 Bonds as
determined by Bond Counsel or by a majority of the registered owners of
the Series 2007 Bonds.
In the event of an amendment or supplement under the City's undertaking, the City shall
describe the same in the next report of Annual Information and shall include, as applicable, a
27
WPB/381657421v22/016787.011900
narrative explanation of the reason for the amendment or supplement and its impact, if any, on
the financial information and operating data being presented in the Annual Information.
(g) The City's undertaking as set forth in the Resolution and as described herein shall
terminate if and when the Series 2007 Bonds are paid or deemed paid within the meaning of the
Resolution.
(h) The City acknowledges that its undertaking pursuant to the Rule set forth in the
Resolution and as described herein is intended to be for the benefit of the registered holders and
Beneficial Owners of the Series 2007 Bonds and shall be enforceable by such holders and
Beneficial Owners; provided that, the holders' and Beneficial Owners' right to enforce the
provisions of the City's undertaking shall be limited to a right to obtain specific enforcement of
the City's obligations under the Resolution, and any failure by the City to comply with the
provisions of the City's undertaking shall not be or constitute a covenant or monetary default
with respect to the Series 2007 Bonds under the Resolution.
(i) The City reserves the right to satisfy its obligations under the Resolution through
agents; and the City may appoint such agents without the necessity of amending the Resolution.
The City may also appoint one or more employees of the City to monitor and be responsible for
the City's undertaking under the Resolution.
(j) "Beneficial Owner" shall mean, for purposes of the City's undertaking, any
person which (i) has the power, directly or indirectly, to vote or consent with respect to, or to
dispose of ownership of, any Series 2007 Bonds (including persons holding Series 2007 Bonds
through nominees, depositories or other intermediaries), or (ii) is treated as the owner of any
Series 2007 Bonds for federal income tax purposes.
The City has not failed to comply with any previous undertaking in a written contract or
agreement to provide continuing disclosure pursuant to the Rule.
ENFORCEABILITY OF REMEDIES
The remedies available to the owners of the Series 2007 Bonds under the Resolution, the
Bond Insurance Policy and Surety Bond referred to herein are in many respects dependent upon
judicial actions which are often subject to discretion and delay. Under existing Constitutional
and statutory law and judicial decisions, including specifically Title 11 of the United States
Code, the remedies specified by the Federal Bankruptcy Code, the Resolution, the Series 2007
Bonds, the Bond Insurance Policy and Surety Bond referred to herein may not be readily
available or may be limited. The various legal opinions to be delivered concurrently with the
delivery of the Series 2007 Bonds (including Bond Counsel's approving opinion) will be
qualified as to the enforceability of the various legal instruments, by limitations imposed by
bankruptcy, reorganization, insolvency, or other similar laws affecting the rights of creditors or
by such principles of equity as the court having jurisdiction may impose with respect to certain
remedies which require or may require, enforcement by a court of equity.
28
WPB/381657421v22/016787.011900
LITIGATION
There is no litigation or controversy of any nature now pending or threatened (i) to
restrain or enjoin the issuance, sale, execution or delivery of the Series 2007 Bonds or (ii) in any
way questioning or affecting the validity of the Series 2007 Bonds, the Resolution, any
proceedings of the City taken with respect to the authorization, sale or issuance of the Series
2007 Bonds or the pledge or application of any moneys provided for the payment of the Series
2007 Bonds
The City is a party from time to time to various lawsuits incident to its operations. In the
opinion of Susan A. Ruby, Esquire, City Attorney, there are no pending legal proceedings to
which the City is a party, the ultimate disposition of which would have a material adverse effect
on the finances or operations of the City or its ability to meet its obligations with respect to the
Series 2007 Bonds.
GENERAL PURPOSE FINANCIAL STATEMENTS
The General Purpose Financial Statements (the "Financial Statements") and other
information of the City for the fiscal year ended September 30, 2006, are included in
APPENDIX B to this Official Statement. Such excerpts from the City's Comprehensive Annual
Financial Report, including the auditor's report thereon, have been included in this Official
Statement as public documents and consent from the auditors was not requested. The Financial
Statements have been audited by Ernst & Young, LLP, independent auditors. The auditors have
not performed any services relating to, and are therefore not associated with, the issuance of the
Series 2007 Bonds.
FINANCIAL ADVISOR
The City has retained Public Financial Management, Inc., Orlando, Florida, as financial
advisor (the "Financial Advisor") to the City in connection with the preparation of the City's
plan of financing and with respect to the authorization and issuance of the Series 2007 Bonds.
Although the Financial Advisor assisted in the preparation of this Official Statement, the
Financial Advisor has not undertaken to make an independent verification or to assume
responsibility for the accuracy, completeness or fairness of the information contained in this
Official Statement. Public Financial Management, Inc. is a financial advisory consulting
organization and is not engaged in the business of underwriting, marketing or trading of
municipal securities or any other negotiable instruments.
DISCLOSURE REQUIRED BY FLORIDA BLUE SKY REGULATIONS
Section 517.051, Florida Statutes, and the regulations promulgated thereunder (the
"Disclosure Act") requires that the City make a full and fair disclosure of any bonds or other
debt obligations that it has issued or guaranteed and that are or have been in default as to
principal or interest at any time after December 31, 1975 (including bonds or other debt
obligations for which it has served on as a conduit issuer such as industrial development or
private activity bonds issued on behalf of private businesses). The City is not and has not ever
been in default as to principal and interest on its bonds or other debt obligations.
29
WPB/381657421 v22/016787.011900
MISCELLANEOUS
All information included herein has been provided by the City, except where attributed to
other sources. The summaries of and references to all documents, statutes, reports and other
instruments referred to herein do not purport to be complete, comprehensive or definitive, and
each such reference or summary is qualified in its entirety by reference to each such document,
statute, report or other instrument. Copies of all such documents referred to herein are on file
with the City Clerk of the City at 100 N.W. First Avenue, Delray Beach, Florida 33444. The
information herein has been compiled from official and other sources and, while not guaranteed
by the City, is believed to be correct. As far as any statements made in this Official Statement
and the appendices attached hereto involve matters of opinion or of estimates, whether or not
expressly stated, they are set forth as such and not as representations of fact and no
representation is made that any of the estimates will be realized.
Neither this Official Statement nor any statement that may have been made verbally or in
writing is to be construed as a contract with the owners of the Series 2007 Bonds.
[Remainder of page intentionally left blank.]
30
WPB/381657421v22/016787.011900
AUTHORIZATION OF AND CERTIFICATION
CONCERNING OFFICIAL STATEMENT
The execution and delivery of this Official Statement has been authorized and approved
by the City Commission. Concurrently with the delivery of the Series 2007 Bonds, the
undersigned will furnish their certificate to the effect that, to the best of their knowledge, this
Official Statement, other than information provided by DTC and the Bond Insurer did not as of
its date, and does not as of the date of delivery of the Series 2007 Bonds, contain any untrue
statement of a material fact or omit to state a material fact which should be included therein for
the purpose for which this Official Statement is to be used, or which is necessary in order to
make the statements contained therein, in the light of the circumstances in which they were
made, not misleading.
CITY OF DELRAY BEACH, FLORIDA
By:
Mayor
By:
City Manager
31
WPB/381657421v22/016787.011900
APPENDIX A
General Information Concerning the City of Delray Beach, Florida
and Palm Beach County, Florida
The following information concerning the City of Delray Beach, Florida (the "City") and
Palm Beach County, Florida (the "County"} is included only for the purposes of providing
general background information. The information has been compiled by the City and on behalf
of the City, and such compilation involved oral and written communication with various sources
as indicated. The information in this APPENDIX A is subject to change.
CITY OF DELRAY BEACH, FLORIDA
Introduction
The City, approximately 16 square miles in area, is located in the southeast portion of the
State of Florida ("State"), in the southeast section of the County. Incorporated May 1 1, 1927, the
City has an estimated permanent population of 64,095 (as of 2006) and an additional estimated
seasonal population of 12,600.
Climate
The climate of the City is best described as subtropical marine. The average year-round
temperature is 74.1 degrees with the mean winter temperature at 65.9 degrees and the summer
mean temperature at 82.3 degrees. Rainfall occurs year-round, but is heaviest in the summer; the
average rainfall is 64.26 inches. The mild climate is primarily a result of the proximity to the
Gulf Stream and the prevailing ocean breezes.
City Government
The City Commission is the principal legislative and governing body of the City. The
Commission's mailing address is 100 N.W. First Avenue, Delray Beach, Florida 33444. The
City operates under aCommission-Manager form of government. The Mayor, elected every two
years, presides over a board of four commission members who are elected to two-year
alternating terms by the community at large. The City Commission appoints the City Manager,
City Attorney and certain general advisory boards. Major departments of the City include:
Administrative Services, City Clerk, Community Improvement, Environmental Services,
Finance, Fire, Human Resources, Parks and Recreation, Planning and Zoning, and Police.
The City Manager "
The chief administrative official of the City is the City Manager. The City Manager is
directly responsible to the Commission for the administration and operation of the City's
departments and for execution of all Commission policies. The City Manager is also responsible
to the Commission for preparation of the City's budget and for control of expenditures
throughout the budget year.
WPB/381657421 v22/016787.011900 A-1
Education
The City is served by six elementary schools, one middle school, one high school, and
two schools that serve all grades, all operated by the Palm Beach County School Board. A
program called "Sharing for Excellence" establishes a covenant between the citizens of Delray
Beach and the Palm Beach County School Board to save inner-city schools and reduce the
number of Delray Beach students being bussed out of the City to meet integration mandates. In
addition to public schools, the City is served by eleven private schools.
Higher education is available at Palm Beach Community College (11 miles to the north),
Florida Atlantic University (6 miles to the south), Lynn University (7 miles to the south), Palm
Beach Atlantic University (20 miles to the north), Barry University School of Adult and
Continuing Education (7 miles to the south), New York Institute of Technology (7 miles to the
south) and South County Technical Center (just north of the City). Florida Atlantic University is
a four-year and graduate university. It has nine colleges: Architecture, Urban and Public
Affairs, Arts and Letters, Business, Education, Nursing, Science, Biomedical Science,
Engineering and Computer Science, and Honors and offers 16 graduate degrees at the master's
and doctorate levels.
For the school year 2007/2008, the Palm Beach County School Board is operating 104
elementary schools, 33 middle schools, 23 senior high schools, and 7 alternative and special
other schools throughout the County.
Transportation
Lying along Florida's Gold Coast between Miami and West Palm Beach, the City has
benefited greatly from well-developed transportation systems servicing Florida's entire southeast
coast.
There are eight north-south roadways which run through Palm Beach County, including
U.S. Highway 1, Congress Avenue, State Road AIA, the Florida Turnpike and Interstate 95.
U.S. Highway 1 and Congress Avenue are the main arteries through the City running north and
south. The Florida Turnpike and Interstate 95 have entrance access at Delray Beach. There are
also two railroads, Florida East Coast Railway and CSX Railroad, and four east-west roadways
to accommodate surface transportation in Palm Beach County. Bus transportation is also
available in the City through the County operated bus system.
The City is also served by the Tri-County Rail System ("Tri-Rail"). Tri-Rail is a high-
speed commuter rail line that operates regularly scheduled service between Miami and West
Palm Beach.
Greyhound Bus Lines provides additional ground transportation to most major Florida
cities. Amtrak also provides passenger rail accommodations and has a station stop located in the
City.
Major air carriers and commuter airlines provide commercial air service at Palm Beach
International Airport (PBIA). PBIA is fifteen miles to the north of the City. The volume of
v-~~sa~s5~a27~2vo~s~s~.o~ ~soo A-2
passenger traffic at PBIA increased from 2,582,802 in 1980 to 6,814,017 in Fiscal Year 2006.
PBIA also serves general aviation traffic. There are five general aviation airports in the County.
The Fort Lauderdale-Hollywood International Airport and the Miami International
Airport are within 50 miles to the south of the City.
The Port of Palm Beach, located within 30 miles of the City, operates ship terminal
facilities on approximately 90 acres of land located in Riviera Beach, Florida and fronting on
Lake Worth, Florida. A 35-foot deep channel to the Lake Worth Inlet provides access to the port
facilities. It is the fourth busiest container port in Florida and 18~' busiest in the continental U.S.
Port Everglades, within 50 miles of the City, and Port of Miami, within 60 miles of the City, are
major ports for cruise and cargo transportation.
CITY POPULATION ESTIMATES,
SCHOOL ENROLLMENT AND UNEMPLOYMENT RATE
The following table shows the City population estimates, school enrollment and
unemployment rates for the past ten years.
School Unemployment
Year Population Enrollment Rate
1997 52,920 7,607 9.0%
1998 53,471 9,175 8.1
1999 53,589 9,634 7.4%
2000 60,020 10,141 5.3
2001 60,645 8,950 6.3%
2002 61,527 8,321 7.6%
2003 62,578 8,186 7.1%
2004 63,439 7,852 6.3%
2005 63,888 8,652 3.8%
2006 64,095 8,100 3.1%
Source: City of Delray Beach Comprehensive Annual
Financial Report, Year Ended September 30, 2006.
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WPB/381657421 v22/016787.011900 A-3
CITY OF DELRAY BEACH
BUILDING PERMIT ACTIVITY
Industrial and Commercial
Construction Residential Construction
FY No. of Permits Value No. of Units Value
1997 34 6,852,230
1998 24 9,343,455
1999 26 7,850,092
2000 42 16,897,724
2001 55 27,106,834
2002 36 19,886,320
2003 37 14,246,005
2004 50 27,645,645
2005 43 29,836,939
2006 33 38,684,983
Source: Community Improvement Department estimates.
489 58,382,613
291 39,461,414
350 39,407,811
343 39,410,536
536 55,920,946
599 59,890,130
606 77,976,436
401 66,364,186
471 79,798,239
301 58,174,105
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WPB/38185742Jv22/016787.011900 A-4
Palm Beach County, Florida
General Introduction
The County was founded in 1909 and encompasses an area of 2,023 square miles. It is
located on the lower east coast of the Florida peninsula with 46 miles of Atlantic Ocean frontage
and 25 miles of frontage on Lake Okeechobee. The County has asemi-tropical climate with an
average temperature of 74.9 degrees and an average rainfall of 61.7 inches. These and other
natural amenities, including 88 local, State and Federal recreational areas of more than 10 acres
and 163 golf courses, have enabled the County to develop ayear-round tourist industry.
There are 38 incorporated municipalities within the County, eleven of which have a
population in excess of 25,000. West Palm Beach is the County seat and is the largest city in the
County, with a 2005 estimated population of 107,617 persons. The County has a 2006 estimated
population of 1,287,987.
POPULATION
The County is the third largest county in the State in terms of population and ninth in
density, with approximately 637 persons per square mile. Its population increased 53% in the
1960-70 decade, 65% in the 1970-1980 decade, and 49.7% in the 1980-1990 decade. For the
decade of 1990-2000, the increase was 27.6%.
Population Growth
Palm Beach County Florida United States
Year Population % Change Population % Change Population % Change
1960 228,106 98.9 4,951,560 78.7 179,323,000 18.6
1970 348,993 53.0 6,789,443 37.1 203,212,000 13.3
1980 576,758 65.3 9,746,961 43.5 226,546,000 11.5
1990 863,518 49.7 12,937,926 32.7 248,709,000 9.8
2000~'~ 1,131,184 31.0 15,982,378 23.5 275,860,949 10.9
2001 1,154,464 2.1 16,331,739 2.2 285,371,621 3.4
2002 1,183,197 2.5 16,674,608 2.1 290,299,949 1.7
2003 1,211,448 2.4 17,019,000 2.4 292,287,454 0.7
2004 1,242,270 2.5 17,516,732 2.6 295,340,436 1.0
2005 1,265,900 1.9 17,789,864 1.6 296,410,404 0.4
2006 1,287,987 1.7 17,918,227 0.7 300,662,937 1.4
Source: University of Florida, Bureau of Economic and Business Research and the U.S. Bureau of the
Census. United States data is estimated as of December 1, 2006.
Adjustment due to census.
Age Distribution
The age distribution in the County is similar to that of the State of Florida (the "State"),
but differs significantly with that of the nation. Both the County and the State have a
WP8/381657421 v22/016787.011900 A-5
considerably larger proportion of persons aged 65 years and older than the remainder of the
nation, and this age group, up to four years ago, had been increasing in the County. In 1986, 25%
of the persons in the County were estimated to have been over 65 years old. Estimates by the
Palm Beach County Planning, Zoning and Building Department, based on various data sources,
place the 65 and over age group at 21 % of the County's estimated population as of 2005.
Population Distribution by Age Group
Age
Group 2005~1~ 2003 2002 2001 2000 1990 1980 1970
0-14 18% 21% 18% 18% 18% 17% 17% 25%
15-64 61% 57% 59% 59% 59% 59% 60% 58%
65+ 21% 22% 23% 23% 23% 24% 23% 17%
(1): Data not available for 2004.
Source: For information through 2003: University of Florida, Bureau of Economic and Business
Research; for information for 2005: Palm Beach County Department of Planning, Zoning and Building as
compiled from various sources.
Income
The following table shows the per capita personal income reported for the County, the
State and the United States.
Per Ca pita Personal Income
Palm Beach County Florida United States
Year Dollars % Fla. %U.S. Dollars %U.S. Dollars
1996 $38,081 157.4 155.8 $24,198 99.0 $24,436
1997 $38,772 156.3 153.3 $24,799 98.1 $25,288
1998 $39,182 149.8 145.7 $26,161 97.3 $26,893
1999 $39,545 148.7 142.0 $26,593 95.5 $27,843
2000 $43,107 147.7 139.2 $27,764 94.2 $29,469
2001 $43,966 150.2 143.4 $29,048 95.5 $30,413
2002 $44,041 148.3 143.2 $29,700 96.4 $30,814
2003 $43,755 144.5 139.1 $30,290 96.0 $31,466
2004 $48,034 147.6 145.2 $32,534 98.3 $33,090
2005 $50,371 148.1 146.1 $34,001 98.6 $34,471
Source: For 1996-2002: Florida Department of Revenue and U.S. Department of Commerce, Bureau of
Economic Analysis; for 2003-2005: University of Florida, Bureau of Economic and Business Research
and U.S. Department of Commerce, Bureau of Economic Analysis
Employment
Tourism and agriculture, together with the service industries related to these activities,
are the leading sources of employment. Manufacturing, primarily electronics and aircraft engines
and other high technology products also plays an important role in the County's economy. The
WPB/381657421 v22/016787.011900 A-6
table that follows shows the County's estimated monthly average on an annual basis for non-
farm employment by economic sector.
Industry Title 2006 Monthly 2005 Monthly
Average* Avera~e*
TOTAL NONAGRICULT. EMPLOY. 585.7 572.4
TOTAL PRIVATE 520.0 507.5
Goods Producing 67.6 63.1
Construction 47.1 43.1
Specialty Trade Contractors 29.2 26.1
Manufacturing 20.4 19.9
Service Providing 518.0 509.4
Private Service Providing 452.4 444.4
Trade, Transportation, and Utilities 106.3 103.6
Wholesale Trade 22.9 21.9
Retail Trade 73.4 71.7
Food and Beverage Stores 15.2 15.1
Health and Personal Care Stores 5.3 5.3
General Merchandise Stores 12.7 11.8
Transportation, Warehousing, and 10.0 10.0
Utilities
Information 11.5 11.1
Financial Activities 40.6 39.6
Finance and Insurance 25.3 25.0
Depository Credit Intermediation 7.7 7.7
Professional and Business Services 120.9 121.5
Professional and Technical Services 37.2 36.1
Management of Companies and 7.8 8.4
Enterprises
Administrative and Waste Services 75.9 77.0
Employment Services 46.2 47.5
Education and Health Services 75.9 74.9
Ambulatory Health Care Services 31.2 30.7
Hospitals 16.6 16.7
Leisure and Hospitality 71.7 69.1
Accommodation and Food Services 55.4 53.5
Accommodation 10.6 10.4
Food Services and Drinking Places 44.9 43.2
Other Services 25.5 24.7
Total Government 65.7 64.9
Federal 6.2 6.2
State 8.9 9.0
Local 50.6 49.8
*Estimates are in thousands (rounded to the nearest hundred). Sum of detail may not equal totals due to
rounding or the exclusion of certain industries.
Source: Florida Agency for Workforce Innovation, Labor Market Statistics Center, released March,
2007.
WPB/381657421 v22/016787.011900 A_7
The data on County unemployment in the following table represents annual averages.
Unemployment Rates
Civilian Palm Beach
Year Labor Force Coun Florida United States
1996 461,526 7.0 5.2 5.4
1997 482,486 6.3 4.8 4.9
1998 507,754 5.5 4.3 4.5
1999 543,006 4.8 4.0 3.8
2000 524,708 4.1 3.6 3.8
2001 541,377 5.9 4.5 4.7
2002 553,833 6.4 5.4 5.4
2003 590,677 6.2 5.4 5.8
2004 598,785 5.7 4.7 5.1
2005 616,401 4.2 3.8 5.5
2006 631,038 3.6 3.3 4.6
Source: For 1996 to 2004: Palm Beach County CAFR, Fiscal Year ended 9/30/06 and Florida Agency for
Workforce Innovation, Labor Markets and Statistics; for 2005 & 2006: Florida Agency for Workforce
Innovation, Labor Markets and Statistics
Ten Largest Private Emplovers (as of August, 2006)
Emplovers Employees
Columbia Palm Beach Health Care System, Inc. 5,200
Tenet Healthcare Corp. 4,794
Florida Power & Light Company 2,850
Boca Raton Resort & Club 2,200
U.S. Sugar Corp 2,100
Florida Crystals 2,000
The Breakers 1,800
Office Depot 1,750
Bethesda Memorial Hospital 1,604
A. Duda & Sons Growers 1,500
Source: Business Development Board of Palm Beach County
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WPB/381657421 x22/016787.011900 A_g
Five LarEest AEricultural Emplovers
(as of August, 2006)
Emplovers
U.S. Sugar Corporation
Florida Crystals
A. Duda & Sons Growers
Emplovees
2,100
2,000
1,500
Thomas Produce Company 1,000
Du Bois Harvesting 400
Source: Business Development Board of Palm Beach County
Ten Largest Public Emplovers
(as of August, 2006)
Emplovers
The School District of Palm Beach County (Education)
State Government
Palm Beach County (County Government)
Federal Government
Florida Atlantic University (Higher Education)
City of Boca Raton (City Government)
City of West Palm Beach (City Government)
Veterans Health Administration
Palm Beach Community College (Higher Education)
City of Boynton Beach (City Government)
Emplovees
21,616
9,200
6,594
6,300
2,825
1,880
1,784
1,350
940
914
Source: Business Development Board of Palm Beach County and Palm Beach County CAFR, Fiscal
Year ended 9/30/06
Tourism
Visitors to the Palm Beaches have a significant economic impact on the County. Tourism
is the County's number one industry, contributing approximately $2.8 billion to the area's local
economy. Tourism accounts for more than 40,000 jobs in the County. A total of 7.2 million
tourists visited the County during calendar year 2004.
Agriculture
Agriculture is a major source of income in the County's economy. The Glades region of
the County is one of the nation's most productive farming areas. According to the Palm Beach
County Business Development Board, Palm Beach County leads the State of Florida and all
counties east of the Mississippi River in total agricultural sales. The estimate annual economic
impact of agriculture to the County in fiscal year 2005/2006 approximated $2 billion.
Additionally, Palm Beach County leads the nation in the production of sugar cane and sweet corn
WP8/381657421v22/016787.011900 A-9
and leads Florida in the production of bell peppers, radishes, rice, lettuce, celery, specialty leaves
and Chinese vegetables. Sugar refining, food processing and other industries directly related to
agricultural output also provide an important source of income and employment.
Construction
Building permit activity in the unincorporated area of the County has been reported as
follows:
Residential Commercial
Year Units Value Value
1995 10,732 $ 995,399 $974,086
1996 9,311 932,675 143,940
1997 9,060 979,247 188,277
1998 10,677 1,159,302 227,318
1999 10,242 1,217,582 394,868
2000 10,026 1,507,878 360,271
2001 10,091 1,377,870 484,771
2002 11,834 1,774,629 133,558~2~
2003 14,737 2,397,041 163,338~Z~
2004 14,652 2,548,036 182,623~2~
2005 12,360 2,698,844 302,036~2~
2006 6,927 1,746,918 141,041~Z~
Other 1 Valuation
$417,578 $1,507,063
323,503 1,400,118
451,299 1,618,773
752,374 2,138,994
776,015 2,388,464
918,780 2,786,929
798,827 2,661,467
923,155 2,831,342
912,177 3,472,556
899,288 3,625,759
1,459,457 4,460,336
698,091 2,586,050
Source: Palm Beach County Department of Planning, Zoning and Building
(1) Hotels, motels, mobile home park additions, public construction, alterations and repairs
(2) Some municipalities did not report the commercial and industrial values
in Fiscal Years 2002, 2003, 2004.3005 and 2006.
APPENDIX B
City of Delray Beach, Florida General Purpose Financial Statements
and Other Information For the Fiscal Year Ended September 30, 2006
This presentation excludes the required supplementary information, combining and
individual fund statements and schedules, general fund schedules, debt schedules, and supporting
schedules and statistical information normally found in the Comprehensive Annual Financial
Report. The complete Comprehensive Annual Financial Report will be filed by the City in its
entirety as part of the City's Continuing Disclosure Undertaking.
APPENDIX C
SUMMARY OF CERTAIN PROVISIONS OF
THE RESOLUTION
The following is a general summary of provisions of the Resolution. This summary is not
to be considered a complete statement of the Resolution and, accordingly, is qualified by
reference thereto and is subject to the full text thereof. A copy of the Resolution may be obtained
from the City upon request.
Definitions.
For purposes of this summary, the capitalized terms herein shall have the following
respective meanings:
"Act" shall mean the Charter of the City, as amended and supplemented; the Florida
Constitution; Chapter 166, Florida Statutes, as amended and supplemented and other applicable
provisions of law.
"Bonds" shall mean any bonds, notes or other evidences of indebtedness (other than
subordinated debt issued under the terms and provisions of the Resolution unless the context
clearly requires otherwise), as the case may be, issued, authenticated and delivered under and
pursuant to the Resolution, together with any >l ari passu additional bonds hereafter issued in the
manner provided in the Resolution.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and all subsequent
tax legislation duly enacted by the Congress of the United States to the extent applicable to any
Series of Bonds issued pursuant to the Resolution. Each reference to a section of the Code in the
Resolution shall be deemed to include, if applicable, final, temporary or proposed regulations,
revenue rulings and procedures issued or amended with respect thereto, and any final, temporary
or proposed regulations and revenue rulings and procedures, as promulgated under the Internal
Revenue Code of 1954, as amended, by the Treasury Department or Internal Revenue Service of
the United States.
"Communications Services Tax" shall mean the tax the City receives on communications
services pursuant to the provisions of the Communications Services Tax Simplification Law
codified as Chapter 202, Florida Statutes, as amended and supplemented.
"Credit Facility" or "Credit Facilities" shall mean either individually or collectively, as
appropriate, any Bond Insurance policy, surety bond, letter of credit, line of credit, guaranty, or
such other instrument or instruments that would enhance the credit of the Bonds. The term Credit
Facility shall not mean a Reserve Account Credit Facility Substitute.
"Credit Facility Issuer" shall mean the provider of a Credit Facility.
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"Debt Service Reserve Requirement" shall mean, with respect to each Series of Bonds,
an amount equal to (i) the maximum amount of principal of and interest on such Series becoming
due in any succeeding Fiscal Year or (ii) one hundred twenty-five percent (125%) of the average
annual amount of principal of and interest on such Series becoming due in any succeeding Fiscal
Year or (iii) ten percent (10%) of the net proceeds (as such term is defined under the Code for
such purpose) of such Series, whichever is the lesser. All or a portion of such Debt Service
Reserve Requirement may be satisfied by obtaining a Reserve Account Credit Facility with the
requisite coverage.
"Defeasance Obligations" shall mean to the extent permitted by law and (other than with
respect to the obligations described in clause (a} below) acceptable to the Credit Facility Issuer if
the principal of and interest on the defeased Bonds is secured by a Credit Facility and such
Credit Facility Issuer is not in default under such Credit Facility or, if not so secured by a Credit
Facility, acceptable to the Rating Agency or Agencies then rating the defeased Bonds:
(a) U. S. Obligations which are not redeemable prior to maturity except by the
holder thereof;
(b) any bonds or other obligations of any state of the United States of America
or of any agency, instrumentality or local governmental unit of any such state (i) which
are not callable prior to maturity or as to which irrevocable instructions have been given
to the trustee of such bonds or other obligations by the obligor to give due notice of
redemption and to call such bonds for redemption on the date or dates specified in such
instructions, (ii) which are secured as to principal and interest and redemption premium,
if any, by a fund consisting only of cash or bonds or other obligations of the character
described in clause (a) hereof which fund may be applied only to the payment of such
principal of and interest and redemption premium, if any, on such bonds or other
obligations on the maturity date or dates thereof or the redemption date or dates specified
in the irrevocable instructions referred to in subclause (i) of this clause (b), as
appropriate, and (iii) as to which the principal of and interest on the bonds and
obligations of the character described in clause (a) hereof which have been deposited in
such fund along with any cash on deposit in such fund are sufficient to pay principal of
and interest and redemption premium, if any, on the bonds or other obligations described
in this clause (b) on the maturity date or dates thereof or on the redemption date or dates
specified in the irrevocable instructions referred to in subclause (i) of this clause (b), as
appropriate; and
(c) Evidences of ownership of proportionate interests in future interest and/or
principal payments on obligations described in clause (a) held by a bank or trust company
as custodian.
"Fiscal Year" shall mean that period commencing on October 1 and continuing to and
including the next succeeding September 30, or such other annual period as may be prescribed
by law as the fiscal year of the City.
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"Maximum Annual Debt Service Requirement" shall mean, at any time, the maximum
amount required to be deposited in the then current or any succeeding Fiscal Year into the
Interest Account, Principal Account and Bond Redemption Account, as provided in the
Resolution; provided, however, that such amount shall be reduced by any estimated earnings or
investment income from investments in any of the funds or accounts created and established
under the Resolution, which are required to be deposited in the Interest Account by the terms of
the Resolution. The amount of Term Bonds maturing in any Fiscal Year which were subject to
mandatory redemption, in part, prior to their stated date of maturity by operation of the Bond
Redemption Account shall not be included in determining the Maximum Annual Debt Service
Requirement in their final Fiscal Year of maturity.
"Maximum Interest Rate" shall mean, with respect to any particular Series of Variable
Rate Bonds issued pursuant to the terms and provisions of the Resolution, the maximum rate of
interest such Bonds may bear at any particular time, which rate shall not exceed the rate of
interest allowed under Florida law.
"Moody's" shall mean Moody's Investors Service, Inc., a corporation organized and
existing under the laws of the State of Delaware, its successors and their assigns, and, if such
corporation shall be dissolved or liquidated or shall no longer perform the functions of a
securities rating agency, "Moody's" shall be deemed to refer to any other nationally recognized
securities rating agency designated by the City.
"Outstanding" shall mean, when used with reference to the Bonds authorized under the
Resolution, as of any particular date, all Bonds theretofore, or thereupon being, authenticated and
delivered by the Registrar under the Resolution, except (i) Bonds theretofore or thereupon
canceled by the Registrar or surrendered to the Registrar for cancellation; (ii) Bonds with respect
to which all liability of the City shall have been discharged in accordance with the terms and
provisions of the Resolution; (iii) Bonds in lieu of or in substitution for which other Bonds shall
have been authenticated and delivered by the Registrar pursuant to any provision of the
Resolution; (iv) Bonds canceled after purchase in the open market or because of payment at
redemption prior to maturity; and (v) Bonds held or purchased by the City.
"Permitted Investments" shall mean (i) to the extent permitted by law U.S. Obligations
and (ii) all other investments permitted under the laws of Florida that are permitted under the
City's adopted investment policies and acceptable to the Credit Facility Issuer, if any.
"Rating Agency" or "Agencies" shall mean Moody's and/or S&P, and/or such other
nationally recognized securities rating agency, whichever shall have a rating then in effect with
respect to the Bonds.
"S&P" shall mean Standard & Poor's Corporation, a corporation organized and existing
under the laws of the State of New York, its successors and their assigns, and, if such corporation
shall be dissolved or liquidated or shall no longer perform the functions of a securities rating
agency, "S&P" shall be deemed to refer to any other nationally recognized securities rating
agency designated by the City.
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"Tax Certificate" shall mean the Arbitrage Certificate executed by the City on the date of
initial issuance and delivery of any Series of Bonds, as such Tax Certificate may be amended
from time to time, a source of guidance for achieving compliance with the Code.
"U.S. Obligations" shall mean the direct obligations of, or obligations on which, the
timely payment of principal and interest are unconditionally guaranteed by the United States of
America, and, if determined by subsequent proceedings of the Commission, certificates which
evidence ownership of the right to the payment of the principal of, or interest on, such
obligations.
"Utilities Tax" shall mean the tax imposed by said City on each and every purchase in the
City of electricity, metered and bottled gas (natural liquified petroleum gas or manufactured) and
the Communications Services Tax. Said term shall also apply to all taxes imposed by the City on
the purchase of utility services other than water and communication services, whether levied in
the amounts prescribed by the Utilities Tax Ordinance or in any other amounts and whether
imposed on the purchase of the same utilities services or any other or additional utilities services,
by amendment to the Utilities Tax Ordinance or such other resolution or ordinance of the City.
This definition shall be applicable to the Bonds and all ~ passu additional Bonds issued
pursuant to the Resolution.
"Utilities Tax Ordinance" shall mean all proceedings imposing the Utilities Tax,
including Ordinance No. 535 of the City adopted on July 9, 1945, as amended, and every
supplementary ordinance or other ordinance in lieu thereof as may hereafter be adopted.
"Variable Rate Bonds" shall mean Bonds issued with a variable, adjustable, convertible
or other similar rate which is not fixed in percentage for the entire term thereof at the date of
issue.
Resolution Constitutes a Contract.
In consideration of the acceptance of the Bonds authorized to be issued under the
Resolution by those who shall hold the same from time to time, the Resolution shall be deemed
to be and shall constitute a contract between the City and such Bondholders, and the covenants
and agreements set forth in the Resolution to be performed by the City shall be for the equal
benefit, protection and security of the Holders of any and all of such Bonds, all of which shall be
of equal rank and without preference, priority, or distinction of any of the Bonds over any other
thereof except as expressly provided therein and in the Resolution.
Negotiability and Registration.
At the option of the registered holder thereof and upon surrender thereof at the designated
corporate trust office of the Registrar with a written instrument of transfer satisfactory to the
Registrar duly executed by the registered holder or his or her duly authorized attorney and upon
payment by such holder of any charges which the Registrar may make as provided in the
Resolution, the Bonds may be exchanged for Bonds of the same Series, interest rate and maturity
of any other authorized denominations.
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The Registrar shall keep books for the registration of Bonds and for the registration of
transfers of Bonds. The Bonds shall be transferable by the holder thereof in person or by his or
her attorney duly authorized in writing only upon the registration books of the City kept by the
Registrar and only upon surrender thereof together with a written instrument of transfer
satisfactory to the Registrar duly executed by the holder or his or her duly authorized attorney.
Upon the transfer of any such Bond, the City shall issue in the name of the transferee a new
Bond or Bonds. There shall be no charge for any such exchange or transfer of Bonds, but the
City or the Registrar may require the payment of a sum sufficient to pay any tax, fee or other
governmental charge required to be paid with respect to such exchange or transfer. Neither the
City nor the Registrar shall be required (i) to transfer or exchange Bonds for a period from a
Record Date to the next succeeding Interest Payment Date ~on such Bonds or 15 days next
preceding any selection of Bonds to be redeemed or thereafter until after the mailing of any
notice of redemption; or (ii) to transfer or exchange any Bonds called for redemption.
Bonds Mutilated, Destroyed, Stolen or Lost.
In case any Bond shall become mutilated, destroyed, stolen or lost, the City may execute
and the Registrar shall authenticate and deliver a new Bond of like date, maturity, denomination
and interest rate as the Bond so mutilated, destroyed, stolen or lost; provided that, in the case of
any mutilated Bond, such mutilated Bond shall first be surrendered to the City and, in the case of
any lost, stolen or destroyed Bond, there shall first be furnished to the City and the Registrar
evidence of such loss, theft, or destruction satisfactory to the City and the Registrar, together
with indemnity satisfactory to them. In the event any such Bond shall be about to mature or have
matured or have been called for redemption, instead of issuing a duplicate Bond, the City may
pay the same without surrender thereof. The City and the Registrar may charge the Holder of
such Bond their reasonable fees and expenses in connection with this transaction.
Utilities Tax Covenant.
The City has covenanted that in each Fiscal Year, as long as any of the Bonds issued
under the Resolution are Outstanding, it will take all lawful action necessary or required to
continue to entitle the City to receive the Utilities Tax proceeds and will take no action which
will impair or adversely affect its receipt of such proceeds. The City has further covenanted that
it shall not repeal the Utilities Tax Ordinance. To the extent necessary for the City to meet its
obligations under the Resolution and any resolution supplemental thereto, it shall increase the
rate of the Utilities Tax to the highest rate legally permitted under applicable law and the City
has agreed to enact every substitute or supplemental ordinance which may, for any reason,
become legally necessary or necessary to comply with the provisions of the Resolution.
Establishment of Funds and Account; Disposition of Pledged Revenues.
The following funds and accounts have been created and established by the Resolution:
Sinking Fund, which shall consist of an Interest Account, Principal Account, a Bond
Redemption Account, and a Debt Service Reserve Account for the Bonds (in the Resolution, the
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City has reserved the right but has not covenanted to establish additional separate Debt Service
Reserve Accounts in the Sinking Fund for any other Series of Bonds hereafter issued pursuant to
the Resolution); and
Acquisition/Construction Fund, and within such Fund, a 2007 Cost of Issuance Cost
Center.
All or a portion of the Utilities Tax Proceeds collected each month by the City shall be
deposited in the following manner and amounts (hereinafter, the Utilities Tax proceeds deposited
in the Sinking Fund are referred to as the "Pledged Revenues"):
1. Pledged Revenues shall be used, to the full extent necessary, for deposit into the
Interest Account in the Sinking Fund, on the fifteenth (15th) day of each month, beginning with
the fifteenth (15th} day of the first full calendar month following the date on which any or all of
the Bonds are delivered to the purchaser thereof, such sums as shall be sufficient to pay one-sixth
(1/6th) of the interest becoming due on the Bonds on the next semiannual Interest Payment Date;
provided, however, that such monthly deposits for interest shall not be required to be made into
the Interest Account to the extent that money is on deposit therein; and provided further, that in
the event the City has issued ~ passu additional Variable Rate Bonds pursuant to the
provisions of the Resolution, Pledged Revenues shall be deposited at such other or additional
times and amounts as necessary to pay the interest becoming due on the Bonds on the next
Interest Payment Date, all in the manner provided in the supplemental resolution authorizing
such sari ap ssu additional Variable Rate Bonds.
The income and investment earnings derived from the moneys and investments on
deposit in the Interest Account shall be retained therein and the moneys and investment earnings
on deposit in the Principal Account, the Bond Redemption Account and the Debt Service
Reserve Accounts shall be deposited in the Interest Account, and such income and investment
earnings shall be credited against the amount of Pledged Revenues required to be deposited in
the Interest Account.
In the event that the period to elapse between the date of the delivery of the Bonds and
the next semiannual Interest Payment Date will be less or more than six (6) months, then such
monthly payments shall be increased or decreased accordingly in sufficient amounts to provide
the required semiannual interest amount maturing on the next Interest Payment Date.
2. Pledged Revenues shall next be used, to the full extent necessary:
(a) for deposit in the Principal Account in the Sinking Fund, on the fifteenth
(15th) day of each month in each year, one twelfth (1/12th) of the principal amount or
Accreted Value of the Series Bonds which will mature and become due on the next
annual maturity date, as shall be determined by subsequent proceedings of the
Commission. In the event the period to elapse between the date of delivery of the Bonds
and the next principal payment date will be less or more than twelve (12) months, then
such monthly payments shall be increased or decreased accordingly in sufficient amounts
to provide the required principal amount maturing on the next principal payment date.
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(b) for deposit into the Bond Redemption Account in the Sinking Fund (or
such special subaccount created therein for Term Bonds of a particular maturity by
subsequent proceedings of the Commission), on the fifteenth (15th) day of each month in
each year, one twelfth (1/12th) of the amount required for the payment of the Term
Bonds, as shall be determined by subsequent proceedings of the Commission, until the
amount on deposit therein is equal to the amount required to be paid on the next
installment payment date.
The moneys in the Bond Redemption Account (or such special subaccount created
therein for the Term Bonds of a particular maturity by subsequent proceedings of the
Commission) shall be used solely for the purchase or redemption of the Term Bonds payable
therefrom. The City may purchase any of the Term Bonds at prices not greater than par and
accrued interest and may purchase Capital Appreciation Bonds and/or Capital Appreciation and
Income Bonds (if such Capital Appreciation Bonds or Capital Appreciation and Income Bonds
are Term Bonds) at prices not greater than the Accreted Value or Appreciated Value, as the case
may be, as of the date of purchase. If, by the application of moneys in the Bond Redemption
Account, the City shall purchase or call for redemption in any year Term Bonds in excess of the
installment requirement for such year, such excess of Term Bonds so purchased or redeemed
shall, at the option of the City either be credited on a pro rata basis over the remaining
installment payment dates or credited against the following year's installment requirement.
The City shall, to the extent of any moneys in the Bond Redemption Account (or such
special account created therein for Term Bonds or a particular maturity by subsequent
proceedings of the Commission), be mandatorily obligated to use such moneys for the
redemption prior to maturity of Term Bonds in such manner and at such times as shall be
determined by subsequent proceedings of the Commission.
No distinction or preference shall exist in the use of moneys on deposit in the Sinking
Fund for payment into the Interest Account, the Principal Account and the Bond Redemption
Account in the Sinking Fund, such accounts being on a parity with each other.
3. To the extent not funded from Bond proceeds or covered by Reserve Account
Credit Facility Substitutes (as herein defined), Pledged Revenues shall next be used on a pro rata
basis, to the full extent necessary, for deposits into each of the Debt Service Reserve Accounts in
the Sinking Fund, on the fifteenth (15th) day of each month in each year, beginning with the
fifteenth (15th) day of the first full calendar month following the date on which any or all of the
Bonds issued are delivered to the purchaser thereof, such sums as shall be sufficient to pay an
amount equal to one-twelfth of twenty percent (1/12th of 20%) of the Debt Service Reserve
Requirement applicable for each Series of Bonds; provided, however, that no payments shall be
required to be made into the Debt Service Reserve Accounts whenever and as long as the amount
deposited therein shall be equal to the Debt Service Reserve Requirement for such Series of
Bonds; provided further, however, that if Revenues are insufficient to make the required deposits
into the applicable Debt Service Reserve Accounts, such Revenues, which are available, will be
deposited therein on a pro rata basis.
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Notwithstanding the foregoing provisions, in lieu of the deposits of Pledged Revenues
into any of the Debt Service Reserve Accounts created and established under the Resolution, the
City may cause to be deposited into any of the Debt Service Reserve Accounts a surety bond, an
unconditional direct pay letter of credit issued by a bank, a reserve account line of credit or a
municipal bond insurer for the benefit of the Holders of the applicable Series of Bonds for which
such Debt Service Reserve Account has been created (sometimes referred to herein as a `Reserve
Account Credit Facility Substitute") in an amount equal to the difference between the Debt
Service Reserve Requirement for such Series of Bonds and the sums then on deposit in the
applicable Debt Service Reserve Account, if any, which Reserve Account Credit Facility
Substitute shall be payable (upon the giving of notice as required thereunder) on any interest
payment date on which a deficiency exists which cannot be cured by funds in any other account
held pursuant to the Resolution and available for such purpose under the terms and order of
priority as established by the Resolution. In addition, the City, at any time by subsequent
proceedings of the Commission, may substitute a Reserve Account Credit Facility Substitute for
all or part of the moneys on deposit in any of the Debt Service Reserve Accounts. Under such
circumstances, the principal amount of Reserve Account Credit Facility Substitute and the
moneys on deposit in such Debt Service Reserve Account shall be in an amount equal to the
Debt Service Reserve Requirement for such Series of Bonds for which such Debt Service
Reserve Account was created. Such municipal bond insurer or bank in the case of a letter of
credit or line of credit shall be one whose municipal bond insurance policies or unconditional
direct pay letters of credit or other type of credit enhancement insuring or guaranteeing the
payment, when due, of the principal of and interest on municipal bond issues results in such
issues being rated in the highest rating category by any Rating Agency or Agencies then rating
the Bonds, and in the case the provider of such Reserve Account Credit Facility Substitute is an
insurer, such insurer holds the highest policyholder rating accorded to insurers by the Rating
Agency or Agencies then rating the Bonds and by A.M. Best & Company, or any comparable
service. If a disbursement is made from a Reserve Account Credit Facility Substitute, the City
shall be obligated to reinstate the maximum limits of such Reserve Account Credit Facility
Substitute following such disbursement at the time or times required by the issuer of the Reserve
Account Credit Facility, or, with the consent of the issuer of such Reserve Account Credit
Facility Substitute, to replace such Reserve Account Credit Facility Substitute by depositing into
the applicable Debt Service Reserve Account from the revenues, as provided in the Resolution,
immediately following the receipt of the consent of the issuer of such Reserve Account Credit
Facility Substitute, funds in the maximum amount originally payable under such Reserve
Account Credit Facility Substitute, or any combination of such alternatives. If a disbursement is
made from more than one Reserve Account Credit Facility Substitute and/or from moneys on
deposit in more than one Debt Service Reserve Account, the City shall be required to reinstate
each Reserve Account Facility Substitute and/or make deposits therein, as described above, on a
pro rata basis. In the event a Debt Service Reserve Account is funded, both with cash (including
Permitted Investments of such cash) and a Reserve Account Credit Facility Substitute in the
aforementioned manner, and it is necessary to make payments attributable to debt service on the
Series of Bonds for which such Debt Service Reserve Account relates into the Interest Account,
Principal Account or Bond Redemption Account in the Sinking Fund when moneys in the
Sinking Fund, are insufficient therefor, the City covenants to deposit the cash (including
Permitted Investments of such cash) on deposit in such Debt Service Reserve Account into such
WPB/38165 7421 v22/016787.011900
C-8
accounts in the Sinking Fund prior to making any disbursements made from such Reserve
Account Credit Facility Substitute.
Other than with respect to the income and investment earning derived from moneys and
investments on deposit in any Debt Service Reserve Account which are, by the terms of the
Resolution, required to be deposited in the Interest Account, whenever there is on deposit in a
Debt Service Reserve Account an amount in excess of the Debt Service Reserve Requirement for
the Series of Bonds for which such Debt Service Reserve Account relates, the amount of such
excess shall be reduced in the following manner: (a) if there is on deposit in the Debt Service
Reserve Account a Reserve Account Credit Facility Substitute, as provided herein, the principal
amount thereof shall be reduced by the amount of such excess, and (b) if there is on deposit in
such Debt Service Reserve Account, cash (or permitted Investments of such cash), the City shall
reduce the amount of cash and/or Permitted Investments of such cash in the Debt Service
Reserve Account in an amount equal to such excess. The cash andlor Permitted Investments of
such cash so withdrawn under clause (b) above shall be deposited into any other account of the
Sinking Fund or used for any other lawful municipal purpose as shall be determined at the option
of the Commission.
Each Debt Service Reserve Account shall be used only for the purpose of making
payments into the Interest Account, the Principal Account and the Bond Redemption Account, as
such payments relate to debt service on the Series of Bonds for which such Debt Service Reserve
Account was created when the moneys in the Sinking Fund are insufficient therefor; and
provided further, however, that moneys on deposit in a Debt Service Reserve Account may, upon
final maturity of the Series of Bonds for which such Debt Service Reserve Account was created,
be used to pay principal of and interest on such Series of Bonds.
4. Pledged Revenues shall next be used, first, for the repayment of any obligations
owed to the provider(s) of a Reserve Account Credit Facility Substitute (pro rata, if necessary),
and second, for the payment of any subordinated indebtedness hereafter issued by the City in
accordance with the proceedings authorizing such subordinated indebtedness.
Thereafter, the balance of any Pledged Revenues remaining in the Sinking Fund, after all
payments above required have been made and all deficiencies thereof have been remedied, may
be released by the City from the lien of the Resolution and used for any lawful municipal
purpose.
Investments.
Moneys on deposit in the Sinking Fund, may be invested in U.S. obligations or any other
Permitted Investments maturing not later than such date or dates as the City shall determine.
All income and earnings received from the investment and reinvestment of moneys on
deposit in the Sinking Fund shall be retained in the Sinking Fund, and used in the same manner
as other moneys on deposit therein.
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Discharge and Satisfaction of Bonds.
The covenants, liens and pledges entered into, created or imposed pursuant to the
Resolution may be fully discharged and satisfied with respect to the Bonds in any one or more of
the following ways:
(a) by paying the principal of and interest on Bonds when the same shall
become due and payable; or
(b) by depositing in the Interest Account, Principal Account, Debt Service
Reserve Account (but only with respect to the Series of Bonds proposed to be paid within
the meaning of this subparagraph) and the Bond Redemption Account, or in such other
accounts which are irrevocably pledged to the payment of the Bonds, as the City may
hereafter create and establish by resolution, certain moneys which together with other
moneys lawfully available therefor and deposited therein shall be sufficient at the time of
such deposit to pay the Bonds, the interest thereon and the redemption premium, if any,
as the same become due on said Bonds on or prior to the redemption date or maturity date
thereof; or
(c) by depositing in the Interest Account, Principal Account, Debt Service
Reserve Account (but only with respect to the Series of Bonds proposed to be paid within
the meaning of this subparagraph) and the Bond Redemption Account, or such other
accounts which are irrevocably pledged to the payment of the Bonds as the City may
hereafter create and establish by resolution, moneys which, together with other moneys
lawfully available therefor, and deposited therein when invested in Defeasance
Obligations will provide moneys which shall be sufficient to pay the Bonds, the interest
thereon and the redemption premium, if any, as the same shall become due on said Bonds
on or prior to the redemption date or maturity date thereof.
Notwithstanding the foregoing all references to the discharge and satisfaction of Bonds
shall include the discharge and satisfaction of any Series of Bonds, any portion of a Series of
Bonds, any maturity or maturities of a Series of Bonds, any portion of a maturity of a Series of
Bonds or any combination thereof.
Notwithstanding the foregoing, in the event that the payment or deposit in the amount
and manner provided in the Resolution has been made by the Credit Facility Issuer under the
terms of its Credit Facility, the Credit Facility Issuer shall be subrogated to the rights of the
Holders of the Bonds and the liability of the City, with respect thereto, shall not be discharged or
extinguished.
For the purposes of determining the amount of interest on Variable Rate Bonds whether
discharged and satisfied under the provisions of subsections (a), (b) and (c) above, the amount
required for the interest thereon shall be calculated at the Maximum Interest Rate permitted by
the terms and the provisions which authorized the issuance of such Variable Rate Bonds.
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Upon such payment or deposit in the amount and manner provided in the Resolution, the
Bonds shall no longer be deemed to be Outstanding for the purposes of the Resolution and all
liability of the City with respect to such Bonds shall cease, terminate and be completely
discharged and extinguished, and the Holders thereof shall be entitled for payment solely out of
the moneys or securities so deposited.
In the case of Bonds by which their terms may be redeemed prior to their stated maturity,
the City shall give the Registrar, in form satisfactory to the Registrar. irrevocable instructions:
(a) stating the date when the principal of each such Bond is to be paid,
whether at maturity or on a redemption date;
(b) requiring the Registrar to call for redemption pursuant to the terms of such
Bonds any Bonds to be redeemed prior to maturity pursuant to (a) above; and
(c) requiring the Registrar to mail, as soon as practicable, a notice to the
owners of such Bonds that the deposit required under the Resolution has been made and
that such Bonds are deemed to have been paid in accordance with the Resolution and
stating the maturity or redemption date upon which money is to be available for the
payment of the principal or redemption price, if applicable, on such Bonds as specified in
(a) above. Notwithstanding the foregoing, the discharge and satisfaction of the Bonds
shall not be conditioned on the giving of such notices.
Notwithstanding anything contained in the Resolution to the contrary, the covenants,
liens and pledges contained in the Resolution shall not be fully discharged and satisfied until all
obligations owed to the provider(s) of the Reserve Account Credit Facility Substitutes have been
satisfied.
Issuance of Other Obligations Payable out of Utilities Tax Proceeds.
The City has covenanted in the Resolution that it will not issue any other obligations,
except upon the conditions provided in the Resolution, payable from the Utilities Tax Revenues
nor voluntarily create or cause to be created any debt, lien, pledge, assignment, encumbrance or
any other charge having priority or being on a parity with the lien of the Bonds issued pursuant
to the Resolution and the interest thereon upon any of the Pledged Revenues.
Issues of Pari Passu Additional Bonds.
No pari passu additional Bonds (as herein defined), payable ~ passu with Bonds issued
pursuant to the Resolution shall be issued after the issuance of any Bonds pursuant to the
Resolution except upon the conditions and in the manner provided in the Resolution.
No such a~ri passu additional Bonds shall be issued unless the following conditions are
complied with:
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(a) The City must be current in all deposits into the various funds and
accounts and all payments required to have been theretofore deposited or made by it
under the provisions of the Resolution and any supplemental resolutions hereafter
adopted for the issuance of ~ passu additional Bonds and has complied with the
covenants and provisions of the Resolution, and any supplemental resolutions hereafter
adopted for the issuance of ~ passu additional Bonds.
(b) The Utilities Tax proceeds collected by the City during any twelve (12)
consecutive months of the eighteen (18) months immediately preceding the issuance of
said ~ passu additional Bonds, as evidenced by a certificate executed by the Finance
Director of the City and as may be adjusted, as hereinafter provided, will be equal to one
hundred twenty-five percent (125%) of the Maximum Annual Debt Service Requirement
on (1) the Bonds originally issued pursuant to the Resolution then Outstanding, (2) any
passu additional Bonds theretofore issued and then Outstanding, and (3) the
passu additional bonds then proposed to be issued; provided that for the purpose of
determining the Maximum Annual Debt Service Requirement under the Resolution, the
interest rate on Variable Rate Bonds then Outstanding shall be the greater of (i) the
average daily interest rate on such Variable Rate Bonds during the preceding Fiscal Year
or (ii) the actual rate of interest applicable to such Variable Rate Bonds on the date of
issuance of such Variable Rate Bonds; and provided, further, that if >l ari passu additional
Variable Rate Bonds are to be issued the interest rate thereon shall be calculated in
accordance with 30 year Revenue Bond Index as published by The Bond Buffer as of the
last week of the month preceding the date of issuance of such Variable Rate Bonds, or if
that index is no longer published, the interest rate as of the last week of such month as
published in an index that is deemed to be substantially equivalent. If the City, prior to
the issuance of the proposed ~ passu additional Bonds shall have, by amendment or
supplement to the Utilities Tax Ordinance, increased the Utilities Tax to be collected, the
Utilities Tax proceeds for the twelve (12) consecutive months immediately preceding the
issuance of the Fri passu additional Bonds shall be adjusted to include the Utilities Tax
proceeds which would have been collected by the City in such twelve (12) consecutive
months as if such increase in the Utilities Tax had been in effect during all of such twelve
(12) consecutive months.
(c) In the event any ~ passu additional Bonds are issued for the purpose of
refunding any Bonds then Outstanding, the condition of (b) above shall not apply,
provided that the issuance of such ~ passu additional Bonds shall result in a reduction
or shall not increase the annual debt service payments over the life of the Bonds so
refunded.
The term "sari passu additional Bonds," as used in the Resolution, shall be deemed to
mean additional obligations evidenced by Bonds or other form of indebtedness permitted under
the Act issued under the provisions and within the limitations of the Resolution payable from the
proceeds of the Utilities Tax deposited in the Sinking Fund a~ri passu with Bonds originally
authorized and issued pursuant to the Resolution. Such Bonds shall be deemed to have been
issued pursuant to the Resolution, the same as the Bonds originally authorized and issued
pursuant to the Resolution, and all of the covenants and other provisions of the Resolution
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(except as to any Debt Reserve Account established for any Series of Bonds and as to details of
such Bonds evidencing such P~ passu additional obligations inconsistent therewith) shall be for
the equal benefit, protection and security of the Holders of any Bonds originally authorized and
issued pursuant to the Resolution and the holders of any Bonds evidencing >l a~ passu additional
obligations subsequently issued within the limitations of and in compliance with the provisions
of the Resolution. All of such Bonds, regardless of the time or times of their issuance shall rank
equally with respect to their lien on the Pledged Revenues and their sources and security for
payment therefrom without preference of any Bonds, over any other.
The term "~ passu additional Bonds," as used in the Resolution, shall not be deemed to
include bonds, notes, certificates or other obligations subsequently issued, the lien of which on
the Pledged Revenues is subject to the prior and superior lien on the Pledged Revenues for the
payment of Bonds issued pursuant to the Resolution, and the City shall not issue any obligations
whatsoever payable from the Pledged Revenues, which rank equally as to lien on and source and
security for their payment from such Pledged Revenues with Bonds issued pursuant to the
Resolution except in the manner and under the conditions provided above.
Remedies.
Any holder of Bonds issued under the provisions of the Resolution, or any trustee acting
for such Bondholders in the manner hereinafter provided, may either at law or in equity, by suit,
action, mandamus or other proceedings in any court of competent jurisdiction, protect and
enforce any and all rights under the laws of the State of Florida, or granted and contained in the
Resolution, and may enforce and compel the performance of all duties required by the
Resolution, or by any applicable statutes to be performed by the City or by any officer thereof,
including the fixing, charging and collecting of the proceeds of the Utilities Tax.
In the event that default shall be made in the payment of the interest on or the principal of
any of the Bonds issued pursuant to the Resolution, as the same shall become due, or in the
making of the payments into any reserve or sinking fund or any other payments required to be
made by the Resolution, or in the event that the City or any officer, agent or employee thereof
shall fail or refuse to comply with the provisions of the Resolution, or shall default in any
covenant made therein, and in the further event that any such default shall continue for a period
of sixty (60) days, any holder of such Bonds, or any trustee appointed to represent Bondholders
as hereinafter provided, shall be entitled as of right to the appointment of a receiver of the
proceeds of the Utilities Tax in an appropriate judicial proceeding in a court of competent
jurisdiction, whether or not such holder or trustee is also seeking or shall have sought to enforce
any other right or exercise any other remedy in connection with Bonds issued pursuant to the
Resolution.
The receiver so appointed shall forthwith, directly or by his or her agents and attorneys,
in the name of the City shall exercise all the rights and powers of the City with respect to the
Utilities Tax as the City itself might do. Such receiver shall levy, collect, and receive all of the
proceeds of the Utilities Tax in the manner provided in the Utilities Tax Ordinance, where
applicable, and the Resolution, and comply under the jurisdiction of the court appointing such
receiver. with all of the provisions of the Resolution.
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Whenever all that is due upon Bonds issued pursuant to the Resolution, and interest
thereon, and under any covenants of the Resolution, for reserve, sinking fund or other funds, and
upon any other obligations and interest thereon having a charge, lien or encumbrance upon the
Pledged Revenues shall have been paid and made good, and all defaults under the provisions of
the Resolution, shall have been cured and made good, the right to levy, collect and receive the
proceeds of the Utilities Tax shall be transferred to the City upon the entry of an order of the
court to that effect. Upon any subsequent default, any Holder of Bonds issued pursuant to the
Resolution, or any trustee appointed for Bondholders as hereinafter provided, shall have the right
to secure the further appointment of a receiver upon any such subsequent default.
The holder or holders of Bonds in an aggregate principal amount of not less than fifty-
one per centum (51 %) of Bonds issued under the Resolution may by a duly executed certificate
in writing appoint a trustee for holders of Bonds issued pursuant to the Resolution, with authority
to represent such Bondholders in any legal proceedings for the enforcement and protection of the
rights of such Bondholders. Such certificate shall be executed by such Bondholders or their duly
authorized attorneys or representatives, and shall be filed in the office of the City Clerk.
Any exercise of a remedy set forth in the Resolution shall be subject to the consent of the
Credit Facility Issuer, if any, and the Credit Facility Issuer shall have the right, acting alone, to
exercise said remedies as long as it has not defaulted in its obligations under its Credit Facility.
If there are more than one Credit Facility Issuer providing Credit Facilities for the Bonds, only
the consent of the Credit Facility Issuers providing Credit Facilities for more than fifty percent
(50%) of the Bonds Outstanding shall he required.
Enforcement of Collections.
The City has covenanted under the Resolution that it will diligently enforce and collect
the Utilities Tax and take all steps, actions and proceedings reasonably necessary for the
enforcement and collection of the Utilities Tax which shall become delinquent to the full extent
permitted or authorized by the laws of the State of Florida.
Modification or Amendment.
Except as otherwise provided in the following paragraph hereof, no material modification
or amendment of the Resolution, or of any resolution amendatory thereof or supplemental
thereto, may be made without the consent in writing of the holders of two-thirds or more in
principal amount of the Bonds then Outstanding; provided, however, that no modification or
amendment shall permit a change in the maturity of such Bonds or a reduction in the rate of
interest thereon, or affecting the unconditional promise of the City to levy and collect Utilities
Tax or to pay the interest of and principal on the Bonds, as the same mature or become due, from
the proceeds of the Utilities Tax or reduce the percentage of holders of Bonds required above for
such modification or amendments, without the consent of the Holders of all the Bonds.
The Resolution may be amended, changed, modified and altered without the consent of
the Owners of Bonds, (i) to cure any ambiguity, correct or supplement any provision contained
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WPB/381657421 v22/016787.011900
in the Resolution which may be defective or inconsistent with any other provisions contained in
the Resolution, (ii) to provide other changes which will not adversely affect the interest of such
Owners, (iii) to implement a Credit Facility or a Reserve Account Credit Facility Substitute, (iv)
to maintain the exclusion of interest on the bonds from gross income for Federal income tax
purposes, (v) to implement or discontinue aBook-Entry System, or (vi) to secure or maintain a
rating on the Bonds.
To the extent any Series of the Bonds are secured by a Credit Facility and such Bonds are
then rated in as high a rating category in which such Bonds was rated at the time of initial
issuance and delivery thereof, by any Rating Agency or Agencies rating such Series of Bonds,
then the consent of the Credit Facility Issuer shall constitute the consent of the Holders of such
Series of Bonds to the extent the terms and provisions of the commitment of the Credit Facility
Issuer so provide; and further, that such Credit Facility Issuer is not in default under its Credit
Facility.
C-15
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APPENDIX D
Form of Approving Opinion of Bond Counsel
Upon delivery of the Series 2007 Bonds in definitive form, Greenberg Traurig,
P.A., Bond Counsel, proposes to render its final approving opinion with respect to
such Bonds in substantially the following form:
2007
The City Commission of
the City of Delray Beach, Florida
Delray Beach, Florida
The Honorable Mayor and City Commissioners:
We have examined certified copies of the proceedings of the City Commission (the
"Commission") of the City of Delray Beach, Florida (the "City"), relative to the issuance and
sale of:
City of Delray Beach, Florida
Utilities Tax Revenue Bonds
Series 2007
The above bonds (herein, the "Series 2007 Bonds") are issued under and pursuant to the
Resolution hereinafter referred to. In such capacity, we have also reviewed such documents and
proceedings and matters of law as we have considered necessary or appropriate for the purpose
of this opinion. Unless the context indicates otherwise, all terms not otherwise defined herein
shall have the meaning ascribed to such terms in the herein described Resolution.
The Series 2007 Bonds are issued under and pursuant to the Constitution, Part II of
Chapter 166, Florida Statutes, as amended and supplemented, the City Charter, as amended and
supplemented, and other applicable provisions of law (collectively, the "Act"), Resolution No.
98-91, adopted by the Commission on December 3, 1991, as amended and supplemented (the
"Original Resolution"), and Resolution No. R-90-02, adopted by the Commission on December
3, 2002, amending and supplementing the Original Resolution (herein, the "Prior Resolution")
and further amended and supplemented by Resolution No. R-21-07, adopted by the Commission
on August 21, 2007 (the "2007 Resolution" and, collectively with the Prior Resolution are herein
referred to as the "Resolution"). Pursuant to 2007 Resolution, the City has appointed Commerce
Bank, National Association, as Paying Agent (the "Paying Agent") and Registrar (the
"Registrar").
The Series 2007 Bonds are being issued for the principal purposes of financing and
refinancing certain municipal projects and for the other purposes described in the Resolution,
including paying the costs of issuance of such Series 2007 Bonds.
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WPB/381657421 v22/016787.011900
The Series 2007 Bonds are dated the date of delivery, issued as fully registered bonds in
book-entry form only, in the denomination of $5,000 each, or any integral multiple thereof, bear
interest at the rates per annum set forth below, payable on December 1, 2007, and each June 1
and December 1 thereafter, and mature on June 1, in the years and amounts as follows:
Interest Interest
Year Amount Rate Year Amount Rate
[The Series 2007 Bonds maturing on or prior to June 1, 20 ,shall not be subject to
redemption prior to their stated dates of maturity. The Bonds maturing on and after June 1,
20 ,may be redeemed prior to their stated dates of maturity, at the option of the City, from any
legally available source, in part, in any order of maturity, and by lot within a maturity if less than
an entire maturity is to be redeemed, on June 1, 20_, or on any date thereafter, or as a whole, on
June 1, 20 , or at any time thereafter, in both cases, at a redemption price equal to the principal
amount of the Series 2007 Bonds to be redeemed, together with accrued interest to the date fixed
for redemption.]
Notice of redemption of the Series 2007 Bonds shall be mailed, postage prepaid, by the
Registrar not less than thirty (30) days before the date fixed for redemption to the registered
owners of any Series 2007 Bonds or portions of the Series 2007 Bonds which are to be
redeemed, at their addresses as they appear fifteen (15) days prior to the date such notice is
mailed on the registration books of the City kept by the Registrar. Failure of the registered
owners of any Series 2007 Bonds which are to be redeemed to receive any such notice shall not
affect the validity of the proceedings for the redemption of the Series 2007 Bonds for which
proper notice has been given. Interest shall cease to accrue on any of the Series 2007 Bonds
called for prior redemption if payment of the redemption price has been duly made or provided
for.
The City has entered into certain covenants with the owners of the Series 2007 Bonds for
the exact terms of which reference is made to the Resolution.
We have examined Series 2007 Bond No. R-1 as executed.
We are of the opinion that such proceedings and proofs show lawful authority for the
issuance of the Series 2007 Bonds pursuant to the Act and the Resolution and that said Series
2007 Bonds are legal, valid, binding and enforceable limited obligations of the City, payable
solely as to both principal and interest from a first lien on and pledge of the proceeds of the
Utilities Tax on parity with the City's Outstanding Utilities Tax Revenue Refunding Bonds,
Series 2002 and any other ~ passu additional bonds issued under the Resolution (collectively
with the Series 2007 Bonds, the "Bonds"), other than with respect to any Debt Service Reserve
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WP8/381657421 v22/016787.011900
Account established with respect to a series of Bonds, all in the manner as provided in the
Resolution.
We are further of the opinion that the City has duly and validly pledged the proceeds of
the Utilities Tax deposited in the Sinking Fund created and established under the Resolution for
the payment of the principal of and interest of the Bonds.
We are further of the opinion that, under the terms, restrictions and conditions contained
in the Resolution, the City may hereafter issue sari Uassu additional obligations which will rank
equally as to lien on and source and security for the payment from the proceeds of the Utilities
Tax deposited in the Sinking Fund under the Resolution with the lien of the holders of the
Bonds; that, except for such ~ passu additional obligations, any other obligations hereafter
issued by the City payable from the proceeds of the Utilities Tax will be junior, subordinate and
inferior in all respects as to lien on and source and security for payment therefrom to the lien of
the holders of the Bonds and said ~ passu additional obligations.
The Internal Revenue Code of 1986, as amended (the "Code") imposes certain
requirements that must be met subsequent to the issuance and delivery of the Series 2007 Bonds
for interest thereon to be and remain excluded from gross income for federal income tax
purposes. Noncompliance with such requirements could cause the interest on the Series 2007
Bonds to be included in gross income for federal income tax purposes retroactive to the date of
issue of the Series 2007 Bonds. The City has covenanted in the Resolution to maintain the
exclusion of the interest on the Series 2007 Bonds from gross income for federal income tax
purposes pursuant to Section 103(a) of the Code.
In our opinion, under existing law, and assuming compliance with the aforementioned
covenants contained in the Resolution, interest on the Series 2007 Bonds is excluded from gross
income for federal income tax purposes. The Series 2007 Bonds are not "specified private
activity bonds" within the meaning of Section 57(a)(5) of the Code and, therefore, the interest on
the Series 2007 Bonds will not be treated as a preference item for purposes of computing the
federal alternative minimum tax imposed by Section 55 of the Code. However, we note that a
portion of the interest on the Bonds owned by corporations may be subject to the federal
alternative minimum tax, which is based in part on adjusted current earnings.
[We are further of the opinion that the difference between the principal amount of the
Series 2007 Bonds maturing on June 1 in the years 20_ through and including 20_
(collectively, the "Discount Bonds"), and the initial offering price to the public (excluding bond
houses, brokers, or similar persons or organizations acting in the capacity of underwriters or
wholesalers), at which price a substantial amount of such Discount Bonds of the same maturity
was sold, constitutes original issue discount which is excluded from gross income for federal
income tax purposes to the same extent as interest on the Series 2007 Bonds. Further, such
original issue discount accrues actuarially on a constant interest rate basis over the term of such
Discount Bond, and the basis of such Discount Bond acquired at such initial offering price by an
initial purchaser of each Discount Bond will be increased by the amount of such accrued original
issue discount.]
WPB/381657421v22/016787.011900
D-3
We are also of the opinion that the Series 2007 Bonds and the interest thereon are exempt
from taxation under existing laws of the State of Florida, except as to estate taxes imposed by
Chapter 220, Florida Statutes, on interest, income or profits on debt obligations owned by
corporations, banks and savings associations.
Except as stated in the preceding four paragraphs, we express no opinion as to any other
federal or any state tax consequences of the ownership or disposition of the Series 2007 Bonds.
We wish to call to your attention that the Series 2007 Bonds do not constitute an
indebtedness of the City within the meaning of any constitutional, statutory, charter or other
limitation of indebtedness, but shall be payable solely from the Pledged Revenues, as provided in
the Resolution. No Holder or Holders of any Series 2007 Bonds shall ever have the right to
compel the exercise of the ad valorem taxing power of the City, or taxation in any form of any
real property therein to pay the Series 2007 Bonds or the interest thereon.
The opinions expressed herein regarding enforceability may be subject to bankruptcy,
insolvency, moratorium, reorganization or other similar laws affecting the enforcement of
creditors' rights generally or by such principles of equity as the court having jurisdiction may
impose with respect to certain remedies which require or may require enforcement by a court of
equity.
Respectfully yours,
GREENBERG TRAURIG, P.A.
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WPB/381657421 v22/016787.011900
APPENDIX E
SPECIMEN FINANCIAL GUARANTY INSURANCE POLICY
MBIA Insurance Corporation
Armonk, New York 10504
Policy No. [NUMBER]
MBIA Insurance Corporation (the "Insurer"), in consideration of the payment of the
premium and subject to the terms of this policy, hereby unconditionally and irrevocably
guarantees to any owner, as hereinafter defined, of the following described obligations, the full
and complete payment required to be made by or on behalf of the Issuer to [INSERT NAME OF
PAYING AGENT] or its successor (the "Paying Agent") of an amount equal to (i) the principal
of (either at the stated maturity or by any advancement of maturity pursuant to a mandatory
sinking fund payment) and interest on, the Obligations (as that term is defined below) as such
payments shall become due but shall not be so paid (except that in the event of any acceleration
of the due date of such principal by reason of mandatory or optional redemption or acceleration
resulting from default or otherwise, other than any advancement of maturity pursuant to a
mandatory sinking fund payment, the payments guaranteed hereby shall be made in such
amounts and at such times as such payments of principal would have been due had there not
been any such acceleration, unless the Insurer elects in its sole discretion, to pay in whole or in
part any principal due by reason of such acceleration); and (ii) the reimbursement of any such
payment which is subsequently recovered from any owner pursuant to a final judgment by a
court of competent jurisdiction that such payment constitutes an avoidable preference to such
owner within the meaning of any applicable bankruptcy law. The amounts referred to in clauses
(i) and (ii) of the preceding sentence shall be referred to herein collectively as the "Insured
Amounts." "Obligations" shall mean:
[PAR]
[LEGAL NAME OF ISSUE]
Upon receipt of telephonic or telegraphic notice, such notice subsequently confirmed in
writing by registered or certified mail, or upon receipt of written notice by registered or certified
mail, by the Insurer from the Paying Agent or any owner of an Obligation the payment of an
Insured Amount for which is then due, that such required payment has not been made, the
Insurer on the due date of such payment or within one business day after receipt of notice of such
nonpayment, whichever is later, will make a deposit of funds, in an account with U.S. Bank
Trust National Association, in New York, New York, or its successor, sufficient for the payment
of any such Insured Amounts which are then due. Upon presentment and surrender of such
Obligations or presentment of such other proof of ownership of the Obligations, together with
any appropriate instruments of assignment to evidence the assignment of the Insured Amounts
due on the Obligations as are paid by the Insurer, and appropriate instruments to effect the
appointment of the Insurer as agent for such owners of the Obligations in any legal proceeding
related to payment of Insured Amounts on the Obligations, such instruments being in a form
satisfactory to U.S. Bank Trust National Association, U.S. Bank Trust National Association shall
disburse to such owners, or the Paying Agent payment of the Insured Amounts due on such
Obligations, less any amount held by the Paying Agent for the payment of such Insured Amounts
E-1
WPB/381657421 v22/016787.011900
and legally available therefor. This policy does not insure against loss of any prepayment
premium which may at any time be payable with respect to any Obligation.
As used herein, the term "owner" shall mean the registered owner of any Obligation as
indicated in the books maintained by the Paying Agent, the Issuer, or any designee of the Issuer
for such purpose. The term owner shall not include the Issuer or any party whose agreement
with the Issuer constitutes the underlying security for the Obligations.
Any service of process on the Insurer may be made to the Insurer at its offices located at
113 King Street, Armonk, New York 10504 and such service of process shall be valid and
binding.
This policy is non-cancellable for any reason. The premium on this policy is not
refundable for any reason including the payment prior to maturity of the Obligations.
The insurance provided by this policy is not covered by the Florida Insurance Guaranty
Association created under chapter 631, Florida Statutes.
IN WITNESS WHEREOF, the Insurer has caused this policy to be executed in facsimile
on its behalf by its duly authorized officers, this [DAY] day of [MONTH, YEAR].
COUNTERSIGNED: MBIA Insurance Corporation
Resident Licensed Agent
City, State
By:
President
Attest:
Assistant Secretary
E-2
WPB/381657421 v2 2/0 1 6 78 7.011900
APPENDIX F
SPECIMEN DEBT SERVICE RESERVE
SURETY BOND
MBIA Insurance Corporation
Armonk, New York 10504
Surety Bond No. XXXXXX
MBIA Insurance Corporation (the "Insurer"), in consideration of the payment of the
premium and subject to the terms of this Surety Bond, hereby unconditionally and irrevocably
guarantees the full and complete payments that are to be applied to payment of principal of and
interest on the Obligations (as hereinafter defined) and that are required to be made by or on
behalf of [NAME OF ISSUER] (the "Issuer") under the [TITLE OF THE DOCUMENT] (the
"Document") to [NAME OF PAYING AGENT], (the "Paying Agent"), as such payments are
due but shall not be so paid, in connection with the issuance by the Issuer of [TITLE OF THE
OBLIGATIONS] (the "Obligations"), [IF PARITY "together with any bonds issued on a parity
therewith,"], provided, that the amount available hereunder for payment pursuant to any one
Demand for Payment (as hereinafter defined) shall not exceed [a: FIXED COVERAGE [Dollar
Amount of Coverage] or the [Debt Service Reserve Fund Requirement] (as defined in the
Document) for the Obligations, whichever is less (the "Surety Bond Limit"); provided, further,
that the amount available at any particular time to be paid to the Paying Agent under the terms
hereof (the "Surety Bond Coverage") shall be reduced and may be reinstated from time to time
as set forth herein.] or [b: VARIABLE COVERAGE the annual amount set forth for the
applicable bond year on Exhibit A attached hereto (the "Surety Bond Limit"); provided, further,
that the amount available at any particular time to be paid to the Paying Agent under the terms
hereof (the "Surety Bond Coverage") shall be reduced and may be reinstated from time to time
as set forth herein.]
1. As used herein, the term "Owner" shall mean the registered owner of any
Obligation as indicated in the books maintained by the applicable paying agent, the Issuer or any
designee of the Issuer for such purpose. The term "Owner" shall not include the Issuer or any
person or entity whose obligation or obligations by agreement constitute the underlying security
or source of payment for the Obligations.
2. Upon the later of: (i) three (3) days after receipt by the Insurer of a demand for
payment in the form attached hereto as Attachment 1 (the "Demand for Payment"), duly
executed by the Paying Agent; or (ii) the payment date of the Obligations as specified in the
Demand for Payment presented by the Paying Agent to the Insurer, the Insurer will make a
deposit of funds in an account with U.S. Bank Trust National Association, in New York, New
York, or its successor, sufficient for the payment to the Paying Agent, of amounts that are then
due to the Paying Agent (as specified in the Demand for Payment) subject to the Surety Bond
Coverage.
3. Demand for Payment hereunder may be made by prepaid telecopy, telex, TWX or
telegram of the executed Demand for Payment c/o the Insurer. If a Demand for Payment made
hereunder does not, in any instance, conform to the terms and conditions of this Surety Bond, the
WPB/381657421 v22/016787.011900 F-1
Insurer shall give notice to the Paying Agent, as promptly as reasonably practicable, that such
Demand for Payment was not effected in accordance with the terms and conditions of this Surety
Bond and briefly state the reason(s) therefor. Upon being notified that such Demand for
Payment was not effected in accordance with this Surety Bond, the Paying Agent may attempt to
correct any such nonconforming Demand for Payment if, and to the extent that, the Paying Agent
is entitled and able to do so.
4. The amount payable by the Insurer under this Surety Bond pursuant to a particular
Demand for Payment shall be limited to the Surety Bond Coverage. The Surety Bond Coverage
shall be reduced automatically to the extent of each payment made by the Insurer hereunder and
will be reinstated to the extent of each reimbursement of the Insurer pursuant to the provisions of
Article II of the Financial Guaranty Agreement dated the date hereof between the Insurer and the
[ISSUER OR OBLIGOR] (the "Financial Guaranty Agreement"); provided, [ANNUAL
PREMIUM OPTION: that no premium is due and unpaid on this Surety Bond and] that in no
event shall such reinstatement exceed the Surety Bond Limit. The Insurer will notify the Paying
Agent, in writing within five (5) days of such reimbursement, that the Surety Bond Coverage has
been reinstated to the extent of such reimbursement pursuant to the Financial Guaranty
Agreement and such reinstatement shall be effective as of the date the Insurer gives such notice.
The notice to the Paying Agent will be substantially in the form attached hereto as Attachment 2.
5. Any service of process on the Insurer or notice to the Insurer may be made to the
Insurer at its offices located at 113 King Street, Armonk, New York 10504 and such service of
process shall be valid and binding.
6. The term of this Surety Bond shall expire [ANNUAL PREMIUM OPTION:
,unless cancelled pursuant to paragraph 9 hereof,] on the earlier of (i) [MATURITY DATE] (the
maturity date of the Obligations being currently issued), or (ii) the date on which the Issuer has
made all payments required to be made on the Obligations pursuant to the Document.
7. The premium payable on this Surety Bond is not refundable for any reason,
including the payment prior to maturity of the Obligations.
8. [OPTIONAL FIRST SENTENCE: This Surety Bond shall be governed by and
interpreted under the laws of the State of (STATE)]. Any suit hereunder in connection with any
payment may be brought only by the Paying Agent within [1 or 3 years] after (i) a Demand for
Payment, with respect to such payment, is made pursuant to the terms of this Surety Bond and
the Insurer has failed to make such payment, or (ii) payment would otherwise have been due
hereunder but for the failure on the part of the Paying Agent to deliver to the Insurer a Demand
for Payment pursuant to the terms of this Surety Bond, whichever is earlier.
[NOS. 9 and 11 are OPTIONAL]
9. Subject to the terms of the Document, the Issuer shall have the right, upon 30
days prior written notice to the Insurer and the Paying Agent, to terminate this Surety Bond. In
the event of a failure by the Issuer to pay the premium due on this Surety Bond pursuant to the
terms of the Financial Guaranty Agreement, the Insurer shall have the right upon [No. of days]
days prior written notice to the Issuer and the Paying Agent to cancel this Surety Bond. No
WPB/381657421 v22/016787.011900 F-2
Demand for Payment shall be made subsequent to such notice of cancellation unless payments
are due but shall not have been so paid in connection with the Obligations.
10. There shall be no acceleration payment due under this Policy unless such
acceleration is at the sole option of the Insurer.
11. This policy is not covered by the Property/Casualty Insurance Security Fund
specified in Article 76 of the New York Insurance Law.
In witness whereof, the Insurer has caused this Surety Bond to be executed in facsimile
on its behalf by its duly authorized officers, this [DATE] day of [MONTH, YEAR]
MBIA INSURANCE CORPORATION
By:
President
By:
Assistant Secretary
WPB/381657421 v22/016787.011900 F-3
EXHIBIT A
Surety Bond No. XXXXXX
Bond Year Maximum Annual Debt Service
199 to 199 $
199 to 199 $
199 to 199 $
WPB/381657421v22/016787.011900 F-4
Attachment 1
Surety Bond No. XXXXXX
DEMAND FOR PAYMENT
20
MBIA Insurance Corporation
113 King Street
Armonk, New York 10504
Attention: President
Reference is made to the Surety Bond No. XXXXXX (the "Surety Bond") issued by the
MBIA Insurance Corporation (the "Insurer"). The terms which are capitalized herein and not
otherwise defined have the meanings specified in the Surety Bond unless the context otherwise
requires.
The Paying Agent hereby certifies that:
(a) In accordance with the provisions of the Document (attached hereto as Exhibit A),
payment is due to the Owners of the Obligations on (the "Due Date") in an amount
equal to $ (the "Amount Due").
(b) The [Debt Service Reserve Fund Requirement] for the Obligations is
(c) The amounts legally available to the Paying Agent on the Due Date will be $
less than the Amount Due (the "Deficiency").
(d) The Paying Agent has not heretofore made demand under the Surety Bond for the
Amount Due or any portion thereof.
The Paying Agent hereby requests that payment of the Deficiency (subject to the Surety
Bond Coverage) be made by the Insurer under the Surety Bond and directs that payment under
the Surety Bond be made to the following account by bank wire transfer of federal or other
immediately available funds in accordance with the terms of the Surety Bond:
[Paying Agent's Account]
[PAYING AGENT]
By:
Its:
WPB/381657421 v22/016787.011900
Attachment 2
Surety Bond No. XXXXXX
NOTICE OF REINSTATEMENT
20_
[Paying Agent]
[Address]
Reference is made to the Surety Bond No. XXXXXX (the "Surety Bond") issued by the
MBIA Insurance Corporation (the "Insurer"). The terms which are capitalized herein and not
otherwise defined have the meanings specified in the Surety Bond unless the context otherwise
requires.
The Insurer hereby delivers notice that
pursuant to Article II of the Financial Guaranty
Bond Coverage is $
it is in receipt of payment from the Obligor
Agreement and as of the date hereof the Surety
MBIA Insurance Corporation
By:
President
Attest:
Assistant Secretary
WPB/381657421 v22/016787.011900
Exhibit D
Suite 1170 40784&2208
300 South Orenge Avenue 407-848-1323 fax
O~larxb, FL www.pfm.COm
32801-3470
PPM
Public Financial Management
r~rau~w and tw.an~.nt Aavitars
August 4, 2007
The City Commission of
The Citq of Delray Beach, Florida
100 N.W. 1" Avenue
Delray Beach, Florida 33444
Dear Ladies and Gentleman:
In our capacity as financial advisor to the City of Delray Beach, Florida (the "City's on the City's
Utilities Tax Revenue Bonds, Series 2007 (the "Series 2007 Bonds"}, Public Financial Management,
Inc., recommends that the principal and interest on the Series 2007 Bonds be insured by a municipal
bond insurance policy (the "Insurance Policy's to be issued by MBIA Insurance Corporation (the
`Bond Insurer") pursuant to the terms and provisions of the commitment In addition, we
recommend that the City purchase a debt service reserve surety bond (the "Surety Policy") from the
Bond Insurer in lieu of depositing bond proceeds into the Debt Service Reserve Fund for the Series
2007 Bonds.
In addition due to the current volatility in the capital markets and the importance of having the
maximum amount of flexibility as it relates to the timing of pricing the Series 2007 Bonds, PFM
recommends a negotiated sale process.
It is the opinion of PFM that by implementing these recommendations, the City will achieve the
lowest all in true interest cost on the Series 2007 Bonds.
Sincerely,
~~~~~
James W. Glover
Public Financial Management, Inc.
Senior Managing Consultant
mbia
WISDOM IN ACTIONsm
COMMITMENT TO ISSUE A
FINANCIAL GUARANTY INSURANCE POLICY
Application No.: 2007-001967-001
Sale Date: August 2007 (t)
Program Type: Competitive DP
Re: $25,460,000 (est) City of Delray Beach, Florida, Utilities Tax Revenue Bonds, Series
2007
(the "Obligations")
This commitment to issue a financial guaranty insurance policy (the "Commitment")
dated March 23, 2007, constitutes an agreement between CITY OF DELRAY BEACH (the
"Applicant") and MBIA Insurance Corporation (the "Insurer"), a stock insurance company
incorporated under the laws of the State of New York.
Based on an approved application dated March 22, 2007, the Insurer agrees, upon
satisfaction of the conditions herein, to issue on the earlier of (i) 120 days of said approval date
or (ii) on the date of delivery of and payment for the Obligations, a financial guaranty insurance
policy (the "Policy") for the Obligations, insuring the payment of principal of and interest on the
Obligations when due. The issuance of the Policy shall be subject to the following terms and
conditions:
1. Payment by the Applicant, or by the Trustee on behalf of the Applicant, on the date
of delivery of and payment for the Obligations, of a nonrefundable premium in the amount of
.25% of total debt service, premium rounded to the nearest thousand. The premium set out in
this paragraph shall be the total premium required to be paid on the Policy issued pursuant to
this Commitment.
2. The Obligations shall have received the unqualified opinion of bond counsel with
respect to the tax-exempt status of interest on the Obligations.
3. There shall have been no material adverse change in the Obligations or the
Resolution, Bond Ordinance, Trust Indenture or other official document authorizing the issuance
of the Obligations or in the final official statement or other similar document, including the
financial statements included therein.
4. There shall have been no material adverse change in any information submitted to
the Insurer as a part of the application or subsequently submitted to be a part of the application
to the Insurer.
5. No event shall have occurred which would allow any underwriter or any other
purchaser of the Obligations not to be required to purchase the Obligations at closing.
6. A Statement of Insurance satisfactory to the Insurer shall be printed on the
Obligations.
MBIA Insurance Corporation 113 King Street Armonk, NY 10504 +1 914 273 4545 www.mbia.com
mbia
WISDOM IN ACTIONsm
7. Prior to the delivery of and payment for the Obligations, none of the information or
documents submitted as a part of the application to the Insurer shall be determined to contain
any untrue or misleading statement of a material fact or fail to state a material fact required to
be stated therein or necessary in order to make the statements contained therein not misleading.
8. No material adverse change affecting any security for the Obligations shall have
occurred prior to the delivery of and payment for the Obligations.
9. The Insurer's "Payments Under the Policy/Other Required Provisions" (see
attached) shall be included in the authorizing document.
10. The Applicant agrees not to use the Insurer's name in any public document
including, without limitation, a press release or presentation, announcement or forum without the
Insurer's prior consent; provided however, such prohibition on the use of the Insurer's name shall
not relate to the use of the Insurer's standard approved form of disclosure in public documents
issued in connection with the current Obligations to be issued in accordance with the terms of the
Commitment; and provided further such prohibition shall not apply to the use of the Insurer's
name in order to comply with public notice, public meeting or public reporting requirements.
11. This Commitment may be signed in counterpart by the parties hereto.
12. Compliance with the Insurer's General Document Provisions (see attached).
Dated this 27th day of July, 2007.
MBIA Insurance Corporation
~~~
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CITY OF DELRAY BEACH
,~
mbia
WISDOM IN ACTIONsm
GENERAL DOCUMENT PROVISIONS
A. Notice to the Insurer The basic legal documents must provide that any notices required to be given
by any party should also be given to the Insurer, Attn: Insured Portfolio Management.
B. Amendments. In the basic legal document, there are usually two methods of amendment. The first,
which typically does not require the consent of the bondholders, is for amendments which will cure
ambiguities, correct formal defects or add to the security of the financing. The second, in which
bondholder consent is a prerequisite, covers the more substantive types of amendments. For all
financings, the Insurer must be given notice of any amendments that are of the first type and the
Insurer's consent must be required for all amendments of the second type. All documents must
contain a provision which requires copies of any amendments to such documents which are
consented to by the Insurer to be sent to Standard & Poor's.
C. Supplemental Legal Document. If the basic legal document provides for a supplemental legal
document to be issued for reasons other than (1) a refunding to obtain savings; or (2) the issuance
of additional bonds pursuant to an additional bonds test, there must be a requirement that the
Insurer's consent also be obtained prior to the issuance of any additional bonds and/or execution of
such supplemental legal document.
D. Events of Default and Remedies. All documents normally contain provisions which define the
events of default and which prescribe the remedies that may be exercised upon the occurrence of an
event of default. At a minimum, events of default will be defined as follows:
1. the issuer/obligor fails to pay principal when due;
2. the issuer/obligor fails to pay interest when due;
3. the issuer/obligor fails to observe any other covenant or condition of the document and such
failure continues for 30 days and
4. the issuer/obligor declares bankruptcy.
The Insurer, acting alone, shall have the right to direct all remedies in the event of a default. The Insurer
shall be recognized as the registered owner of each bond which it insures for the purposes of exercising
all rights and privileges available to bondholders. For bonds which it insures, the Insurer shall have the
right to institute any suit, action, or proceeding at law or in equity under the same terms as a bondholder
in accordance with applicable provisions of the governing documents. Other than the usual redemption
provisions, any acceleration of principal payments must be subject to the Insurer's prior written consent.
E. Defeasance requires the deposit of:
1. Cash
2. U.S. Treasury Certificates, Notes and Bonds (including State and Local Government
Series -- " SLGs")
Direct obligations of the Treasury which have been stripped by the Treasury itself, CATS,
TIGRS and similar securities
MBIA Insurance Corporation 113 King Street Armonk, NY 10504 +1 914 273 4545 www.mbia.com
mbia
WISDOM IN ACTIONsm
4. Resolution Funding Corp. (REFCORP) Only the interest component of REFCORP strips
which have been stripped by request to the Federal Reserve Bank of New York in book entry
form are acceptable.
5. Pre-refunded municipal bonds rated "Aaa" by Moody's and "AAA" by S&P. If however, the
issue is only rated by S&P (i.e., there is no Moody's rating), then the pre-refunded bonds must
have been pre-refunded with cash, direct U.S. or U.S. guaranteed obligations, or AAA rated
pre-refunded municipals to satisfy this condition.
6. Obligations issued by the following agencies which are backed by the full faith and credit of
the U.S.
a. U.S. Export-Import Bank (Eximbank)
Direct obligations or fully guaranteed certificates of beneficial ownership
b. Farmers Home Administration (FmHA)
Certificates of beneficial ownership
c. Federal Financing Bank
d. General Services Administration
Participation certificates
e. U.S. Maritime Administration
Guaranteed Title XI financing
f. U.S. Department of Housing and Urban Development (HUD)
Project Notes
Local Authority Bonds
New Communities Debentures - U.S. government guaranteed debentures
U.S. Public Housing Notes and Bonds - U.S. government guaranteed public housing
notes and bonds
The Insurer shall be provided with an opinion of counsel acceptable to the Insurer that the Obligations
have been legally defeased and that the escrow agreement establishing such defeasance operates to legally
defease the Obligations within the meaning of the Indenture and the Supplemental Indenture relating to
the Obligations. In addition, the Insurer will be entitled to receive (i) 15 business days notice of any
advance refunding of the Obligations and (ii) an accountant's report with respect to the sufficiency of the
amounts deposited in escrow to defease the Obligations.
F. App:
In transactions where there is an agent/enhancer (other than the Insurer), the trustee, tender
agent (if any), and paying agent (if any) must be commercial banks with trust powers.
The remarketing agent must have trust powers if they are responsible for holding moneys or
receiving bonds. As an alternative, the documents may provide that if the remarketing agent
is removed, resigns or is unable to perform its duties, the trustee must assume the
responsibilities of remarketing agent until a substitute acceptable to the Insurer is appointed.
mbia
WISDOM IN ACTIONsm
COMMITMENT TO ISSUE A
DEBT SERVICE RESERVE SURETY BOND
Application No.: 2007-001967-002
Sale Date: August 2007 (t)
Program Type: Negotiated DP
RE: $3,700,000 (est) Debt Service Reserve Fund for the $24,460,000 (est) City of Delray
Beach, Florida, Utilities Tax Revenue Bonds, Series 2007
(the "Obligations")
This commitment to issue a debt service reserve surety bond (the "Commitment")
constitutes an agreement between CITY OF DELRAY BEACH (the "Applicant"), and MBIA
Insurance Corporation (the "Insurer"), a stock insurance company incorporated under the laws of
the State of New York.
Based on an approved application dated March 22, 2007, the Insurer agrees, upon
satisfaction of the conditions herein, to issue on the earlier of (i) 120 days of said approval date
or (ii) on the date of delivery of and payment for the Obligations, a debt service reserve surety
bond (the "Surety Bond"), for the Obligations, guaranteeing the payment to the issuer of up to
$3,700,000 (est) on the Obligations. The issuance of the Surety Bond shall be subject to the
following terms and conditions:
1. Payment by the Applicant, or by the Trustee on behalf of the Applicant, on the date
of delivery of and payment for the Obligations, of a nonrefundable premium in the amount of
1.75% of total surety bond amount, premium rounded to the nearest thousand. The premium set
out in this paragraph shall be the total premium required to be paid on the Policy issued pursuant
to this Commitment.
2. The Obligations shall have received the unqualified opinion of bond counsel with
respect to the tax-exempt status of interest on the Obligations.
3. There shall have been no material adverse change in the Obligations or the
Resolution, Bond Ordinance, Trust Indenture or other official document authorizing the issuance
of the Obligations or in the final official statement or other similar document, including the
financial statements included therein.
4. There shall have been no material adverse change in any information submitted to
the Insurer as a part of the Application or subsequently submitted to be a part of the Application
to the Insurer.
5. No event shall have occurred which would allow any underwriter or any other
purchaser of the Obligations not to be required to purchase the Obligations at closing.
MBIA Insurance Corporation 113 King Street Armonk, NY 10504 +1 914 273 4545 www.mbia.com
Lmbia
WISDOM IN ACTIONsm
6. Prior to the delivery of and payment for the Obligations, none of the information or
documents submitted as a part of the Application to the Insurer shall be determined to contain
any untrue or misleading statement of a material fact or fail to state a material fact required to be
stated therein or necessary in order to make the statements contained therein not misleading.
7. No material adverse change affecting any security for the Obligations shall have
occurred prior to the delivery of and payment for the Obligations.
8. This Commitment maybe signed in counterpart by the parties hereto.
9. Compliance with the Insurer's Term Sheet for Debt Service Reserve Fund Program
(see Attachment A).
Dated this 23rd day of March, 2007.
MB surance oration
'°°~' 'ssls ant S ` retar -~
CITY OF DELRAY BEACH
a.~~
N.~w
mbia
WISDOM IN ACTIONsm
(Attachment A)
TERM SHEET FOR DEBT SERVICE RESERVE FUND PROGRAM
Introduction
The Insurer can, under certain circumstances, issue a debt service reserve fund surety bond
(the "Surety Bond"), to be used as a replacement for a cash funded reserve, in any amount up to
the full amount of the debt service reserve fund requirement.
The Insurer requires that the issuer and/or the underlying obligor of the bonds enter into a
Financial Guaranty Agreement with the Insurer providing for, among other things, the
reimbursement to the Insurer of amounts drawn under the Surety Bond. A sample draft of such
an agreement is attached.
The Insurer will undertake its standard credit analysis of the issuer and/or obligor which
may result in requests for modifications of the structure or certain provisions of the bond
documents. These changes would be in addition to the specific changes required in all
financings where a Surety Bond will be issued (see Required Terms below).
The Surety Bond may be structured to provide debt service reserve fund replacement for the
current issue of bonds and any other debt issued on a parity therewith. However, in all cases, the
Surety Bond will expire on the final maturity date of the current issue.
The program criteria are subject to change by the Insurer.
General Terms
Provision should be made in the bond documents for the creation of a debt service reserve
fund and there should be a requirement to maintain that fund at a certain level. It should also be
provided that this requirement may be satisfied by cash or a qualified surety bond or a
combination of these two (Note: A "qualified surety bond" means a surety bond issued bean
insurance company rated in the highest rating_categor~y Standard & Poor's and Moody's and
if rated by A.M. Best & Company, must also be rated in the highest rating cate ory b
Best & Company).
In those instances where the issuance of parity debt will cause the debt service reserve fund
requirement to increase, the Insurer requires that at the time of issuance of such parity debt,
either cash or a qualified surety bond be provided so that the increased requirement will be
satisfied.
In any event where the debt service reserve fund contains both an the Insurer Surety Bond
and cash, the Insurer requires that the cash be drawn down completely before any demand is
made on the Surety Bond. In any event where the debt service reserve fund contains a surety
bond from another entity and an INSURER Surety Bond, the documents should provide for a
pro-rata draw on each of the surety bonds.
MBIA Insurance Corporation 113 King Street Armonk, NY 10504 +1 914 273 4545 www.mbia.com
mbia
WISDOM IN ACTIONsm
With regard to replenishment, any available monies, as defined in the Indenture or
Resolution, should be used first to reimburse the Insurer, thereby reinstating the Surety Bond,
and second to replenish the cash in the debt service reserve fund.
The rate covenant should be expanded so that, in addition to all other coverage requirements,
there are sufficient monies available to pay all amounts owed to the Insurer under the terms of
the Financial Guaranty Agreement.
If the documents provide for the issuance of additional bonds that do not share a common
reserve fund with the current issue, the Insurer can issue a surety bond that is, by its terms,
available only as a reserve for the current issue. In such cases, the Insurer would require a
covenant that any revenues available for debt service must be distributed between the current
issue and any additional bonds on a pro rata basis without regard to the existence of a funded
debt service reserve or a surety bond.
The bond documents should require the Trustee to deliver a Demand For Payment (see
attached form) at least three days prior to the date on which funds are required.
Required Terms
With respect to any security interest in collateral granted to the bondholders, the Insurer
should be granted that same interest subject only to that of the bondholders. This would apply to
existing security, if any, as well as any to be granted in the future.
The Insurer should receive an opinion from counsel to the issuer/obligor that the Financial
Guaranty Agreement is a legal, valid and binding obligation of the issuer/obligor and is
enforceable against the issuer/obligor in accordance with its terms.
In general terms, the "flow of funds" would be structured as follows:
All gross revenues should be paid in the following order with the priority indicated:
(1) expenses of operation and maintenance;
(2) debt service on the bonds;
(3) reimbursement of amounts advanced by the Insurer under the Surety Bond;
(4) reimbursement of cash amounts, if any, drawn from the reserve fund;
(5) replenishment of Renewal and Replacement Fund;
(6) payment to the Insurer of interest on amounts advanced under the Surety
Bond;
(7) all other lawful uses, including the debt service payment on any subordinate
bonds.
Provision must be made for the Insurer to be paid all amounts owed to it under the terms of
the Financial Guaranty Agreement or any other documents before the bond documents may be
terminated.
mbia
WISDOM IN ACTIONsm
It will be the responsibility of the trustee/paying agent to maintain adequate records, verified
with the Insurer, as to the amount available to be drawn at any given time under the Surety Bond
and as to the amounts paid and owing to the Insurer under the terms of the Financial Guaranty
Agreement.
There may be no optional redemption of bonds or distribution of funds to the issuer and/or
the underlying obligor unless all amounts owed to the Insurer under the terms of the Financial
Guaranty Agreement or any other documents have been paid in full.
8/12/93
Exhibit E
mbia
WISDOM IN ACTIONsm
COMMITMENT TO ISSUE A
FINANCIAL GUARANTY INSURANCE POLICY
Application No.: 2007-001967-001
Sale Date: August 2007 (t)
Program Type: Competitive DP
Re: $25,460,000 (est) City of Delray Beach, Florida, Utilities Tax Revenue Bonds, Series
2007
(the "Obligations")
This commitment to issue a financial guaranty insurance policy (the "Commitment")
dated March 23, 2007, constitutes an agreement between CITY OF DELRAY BEACH (the
"Applicant") and MBIA Insurance Corporation (the "Insurer"), a stock insurance company
incorporated under the laws of the State of New York.
Based on an approved application dated March 22, 2007, the Insurer agrees, upon
satisfaction of the conditions herein, to issue on the earlier of (i) 120 days of said approval date
or (ii) on the date of delivery of and payment for the Obligations, a financial guaranty insurance
policy (the "Policy") for the Obligations, insuring the payment of principal of and interest on the
Obligations when due. The issuance of the Policy shall be subject to the following terms and
conditions:
1. Payment by the Applicant, or by the Trustee on behalf of the Applicant, on the date
of delivery of and payment for the Obligations, of a nonrefundable premium in the amount of
.25% of total debt service, premium rounded to the nearest thousand. The premium set out in
this paragraph shall be the total premium required to be paid on the Policy issued pursuant to
this Commitment.
2. The Obligations shall have received the unqualified opinion of bond counsel with
respect to the tax-exempt status of interest on the Obligations.
3. There shall have been no material adverse change in the Obligations or the
Resolution, Bond Ordinance, Trust Indenture or other official document authorizing the issuance
of the Obligations or in the final official statement or other similar document, including the
financial statements included therein.
4. There shall have been no material adverse change in any information submitted to
the Insurer as a part of the application or subsequently submitted to be a part of the application
to the Insurer.
5. No event shall have occurred which would allow any underwriter or any other
purchaser of the Obligations not to be required to purchase the Obligations at closing.
6. A Statement of Insurance satisfactory to the Insurer shall be printed on the
Obligations.
MBIA Insurance Corporation 113 King Street Armonk, NY 10504 +1 914 273 4545 www.mbia.com
mbia
WISDOM IN ACTIONsm
7. Prior to the delivery of and payment for the Obligations, none of the information or
documents submitted as a part of the application to the Insurer shall be determined to contain
any untrue or misleading statement of a material fact or fail to state a material fact required to
be stated therein or necessary in order to make the statements contained therein not misleading.
8. No material adverse change affecting any security for the Obligations shall have
occurred prior to the delivery of and payment for the Obligations.
9. The Insurer's "Payments Under the Policy/Other Required Provisions" (see
attached) shall be included in the authorizing document.
10. The Applicant agrees riot to use the Insurer's name in any public document
including, without limitation, a press release or presentation, announcement or forum without the
Insurer's prior consent; provided however, such prohibition on the use of the Insurer's name shall
not relate to the use of the Insurer's standard approved form of disclosure in public documents
issued in connection with the current Obligations to be issued in accordance with the terms of the
Commitment; and provided further such prohibition shall not apply to the use of the Insurer's
name in order to comply with public notice, public meeting or public reporting requirements.
11. This Commitment may be signed in counterpart by the parties hereto.
12. Compliance with the Insurer's General Document Provisions (see attached).
Dated this 27th day of July, 2007.
MBIA Insurance Corporation
' ~f~ g
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. ;{~~~5{Start cr
CITY OF DELRAY BEACH
By:
Title:
mbia
WISDOM IN ACTIONsm
GENERAL DOCUMENT PROVISIONS
A. Notice to the Insurer The basic legal documents must provide that any notices required to be given
by any party should also be given to the Insurer, Attn: Insured Portfolio Management.
B. Amendments. In the basic legal document, there are usually two methods of amendment. The first,
which typically does not require the consent of the bondholders, is for amendments which will cure
ambiguities, correct formal defects or add to the security of the financing. The second, in which
bondholder consent is a prerequisite, covers the more substantive types of amendments. For all
financings, the Insurer must be given notice of any amendments that are of the first type and the
Insurer's consent must be required for all amendments of the second type. All documents must
contain a provision which requires copies of any amendments to such documents which are
consented to by the Insurer to be sent to Standard & Poor's.
C. Supplemental Legal Document. If the basic legal document provides for a supplemental legal
document to be issued for reasons other than (1) a refunding to obtain savings; or (2) the issuance
of additional bonds pursuant to an additional bonds test, there must be a requirement that the
Insurer's consent also be obtained prior to the issuance of any additional bonds and/or execution of
such supplemental legal document.
D. Events of Default and Remedies. All documents normally contain provisions which define the
events of default and which prescribe the remedies that may be exercised upon the occurrence of an
event of default. At a minimum, events of default will be defined as follows:
1. the issuer/obligor fails to pay principal when due;
2. the issuer/obligor fails to pay interest when due;
3. the issuer/obligor fails to observe any other covenant or condition of the document and such
failure continues for 30 days and
4. the issuer/obligor declares bankruptcy.
The Insurer, acting alone, shall have the right to direct all remedies in the event of a default. The Insurer
shall be recognized as the registered owner of each bond which it insures for the purposes of exercising
all rights and privileges available to bondholders. For bonds which it insures, the Insurer shall have the
right to institute any suit, action, or proceeding at law or in equity under the same terms as a bondholder
in accordance with applicable provisions of the governing documents. Other than the usual redemption
provisions, any acceleration of principal payments must be subject to the Insurer's prior written consent.
E. Defeasance requires the deposit of:
Cash
U.S. Treasury Certificates, Notes and Bonds (including State and Local Government
Series -- " SLGs")
Direct obligations of the Treasury which have been stripped by the Treasury itself, CATS,
TIGRS and similar securities
MBIA Insurance Corporation 113 King Street Armonk, NY 10504 +1 914 273 4545 www.mbia.com
mbia
WISDOM IN ACTIONsm
4. Resolution Funding Corp. (REFCORP) Only the interest component of REFCORP strips
which have been stripped by request to the Federal Reserve Bank of New York in book entry
form are acceptable.
5. Pre-refunded municipal bonds rated "Aaa" by Moody's and "AAA" by S&P. If however, the
issue is only rated by S&P (i.e., there is no Moody's rating), then the pre-refunded bonds must
have been pre-refunded with cash, direct U.S. or U.S. guaranteed obligations, or AAA rated
pre-refunded municipals to satisfy this condition.
6. Obligations issued by the following agencies which are backed by the full faith and credit of
the U.S.
a. U.S. Export-Import Bank (Eximbank)
Direct obligations or fully guaranteed certificates of beneficial ownership
b. Farmers Home Administration (FmHA)
Certificates of beneficial ownership
c. Federal Financing Bank
d. General Services Administration
Participation certificates
e. U.S. Maritime Administration
Guaranteed Title XI financing
f. U S Department of Housine and Urban Development (HUD)
Project Notes
Local Authority Bonds
New Communities Debentures - U.S. government guaranteed debentures
U.S. Public Housing Notes and Bonds - U.S. government guaranteed public housing
notes and bonds
The Insurer shall be provided with an opinion of counsel acceptable to the Insurer that the Obligations
have been legally defeased and that the escrow agreement establishing such defeasance operates to legally
defease the Obligations within the meaning of the Indenture and the Supplemental Indenture relating to
the Obligations. In addition, the Insurer will be entitled to receive (i) 15 business days notice of any
advance refunding of the Obligations and (ii) an accountant's report with respect to the sufficiency of the
amounts deposited in escrow to defease the Obligations.
F. Agents:
I . In transactions where there is an agent/enhancer (other than the Insurer), the trustee, tender
agent (if any), and paying agent (if any) must be commercial banks with trust powers.
2. The remarketing agent must have trust powers if they are responsible for holding moneys or
receiving bonds. As an alternative, the documents may provide that if the remarketing agent
is removed, resigns or is unable to perform its duties, the trustee must assume the
responsibilities of remarketing agent until a substitute acceptable to the Insurer is appointed.
mbia
WISDOM IN ACTION`"'
COMMITMENT TO ISSUE A
DEBT SERVICE RESERVE SURETY BOND
Application No.: 2007-001967-002
Sale Date: August 2007 (t)
Program Type: Negotiated DP
RE: $3,700,000 (est) Debt Service Reserve Fund for the $24,460,000 (est) City of Delray
Beach, Florida, Utilities Tax Revenue Bonds, Series 2007
(the "Obligations")
This commitment to issue a debt service reserve surety bond (the "Commitment")
constitutes an agreement between CITY OF DELRAY BEACH (the "Applicant"), and MBIA
Insurance Corporation (the "Insurer"), a stock insurance company incorporated under the laws of
the State of New York.
Based on an approved application dated March 22, 2007, the Insurer agrees, upon
satisfaction of the conditions herein, to issue on the earlier of (i) 120 days of said approval date
or (ii) on the date of delivery of and payment for the Obligations, a debt service reserve surety
bond (the "Surety Bond"), for the Obligations, guaranteeing the payment to the issuer of up to
$3,700,000 (est) on the Obligations. The issuance of the Surety Bond shall be subject to the
following terms and conditions:
1. Payment by the Applicant, or by the Trustee on behalf of the Applicant, on the date
of delivery of and payment for the Obligations, of a nonrefundable premium in the amount of
1.75% of total surety bond amount, premium rounded to the nearest thousand. The premium set
out in this paragraph shall be the total premium required to be paid on the Policy issued pursuant
to this Commitment.
2. The Obligations shall have received the unqualified opinion of bond counsel with
respect to the tax-exempt status of interest on the Obligations.
3. There shall have been no material adverse change in the Obligations or the
Resolution, Bond Ordinance, Trust Indenture or other official document authorizing the issuance
of the Obligations or in the final official statement or other similar document, including the
financial statements included therein.
4. There shall have been no material adverse change in any information submitted to
the Insurer as a part of the Application or subsequently submitted to be a part of the Application
to the Insurer.
5. No event shall have occurred which would allow any underwriter or any other
purchaser of the Obligations not to be required to purchase the Obligations at closing.
MBIA Insurance Corporation 113 King Street Armonk, NY 10504 +1 914 273 4545 www.mb+a.com
mbia
WISDOM IN ACTION`"
6. Prior to the delivery of and payment for the Obligations, none of the information or
documents submitted as a part of the Application to the Insurer shall be determined to contain
any untrue or misleading statement of a material fact or fail to state a material fact required to be
stated therein or necessary in order to make the statements contained therein not misleading.
7. No material adverse change affecting any security for the Obligations shall have
occurred prior to the delivery of and payment for the Obligations.
8. This Commitment may be signed in counterpart by the parties hereto.
9. Compliance with the Insurer's Term Sheet for Debt Service Reserve Fund Program
(see Attachment A).
Dated this 23rd day of March, 2007.
MBA surance oration
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CITY OF DELRAY BEACH
By:
Title:
mbia
WISDOM IN ACTIONsm
(Attachment A)
TERM SHEET FOR DEBT SERVICE RESERVE FUND PROGRAM
Introduction
The Insurer can, under certain circumstances, issue a debt service reserve fund surety bond
(the "Surety Bond"), to be used as a replacement for a cash funded reserve, in any amount up to
the full amount of the debt service reserve fund requirement.
The Insurer requires that the issuer and/or the underlying obligor of the bonds enter into a
Financial Guaranty Agreement with the Insurer providing for, among other things, the
reimbursement to the Insurer of amounts drawn under the Surety Bond. A sample draft of such
an agreement is attached.
The Insurer will undertake its standard credit analysis of the issuer and/or obligor which
may result in requests for modifications of the structure or certain provisions of the bond
documents. These changes would be in addition to the specific changes required in all
financings where a Surety Bond will be issued (see Required Terms below).
The Surety Bond may be structured to provide debt service reserve fund replacement for the
current issue of bonds and any other debt issued on a parity therewith. However, in all cases, the
Surety Bond will expire on the final maturity date of the current issue.
The program criteria are subject to change by the Insurer.
General Terms
Provision should be made in the bond documents for the creation of a debt service reserve
fund and there should be a requirement to maintain that fund at a certain level. It should also be
provided that this requirement may be satisfied by cash or a qualified surety bond or a
combination of these two (Note: A "qualified surety bond" means a surety bond issued by an
insurance company rated in the highest rating category Standard & Poor's and Moody's and,
if rated by A M Best & Company must also be rated in the highest rating category by A.M.
Best & Company).
In those instances where the issuance of parity debt will cause the debt service reserve fund
requirement to increase, the Insurer requires that at the time of issuance of such parity debt,
either cash or a qualified surety bond be provided so that the increased requirement will be
satisfied.
In any event where the debt service reserve fund contains both an the Insurer Surety Bond
and cash, the Insurer requires that the cash be drawn down completely before any demand is
made on the Surety Bond. In any event where the debt service reserve fund contains a surety
bond from another entity and an INSURER Surety Bond, the documents should provide for a
pro-rata draw on each of the surety bonds.
MBIA Insurance Corporation 113 King Street Armonk, NY 10504 +1 914 273 4545 www.mbia.com
mbia
WISDOM IN ACTIONsm
With regard to replenishment, any available monies, as defined in the Indenture or
Resolution, should be used first to reimburse the Insurer, thereby reinstating the Surety Bond,
and second to replenish the cash in the debt service reserve fund.
The rate covenant should be expanded so that, in addition to all other coverage requirements,
there are sufficient monies available to pay all amounts owed to the Insurer under the terms of
the Financial Guaranty Agreement.
If the documents provide for the issuance of additional bonds that do not share a common
reserve fund with the current issue, the Insurer can issue a surety bond that is, by its terms,
available only as a reserve for the current issue. In such cases, the Insurer would require a
covenant that any revenues available for debt service must be distributed between the current
issue and any additional bonds on a pro rata basis without regard to the existence of a funded
debt service reserve or a surety bond.
The bond documents should require the Trustee to deliver a Demand For Payment {see
attached form) at least three days prior to the date on which funds are required.
Required Terms
With respect to any security interest in collateral granted to the bondholders, the Insurer
should be granted that same interest subject only to that of the bondholders. This would apply to
existing security, if any, as well as any to be granted in the future.
The Insurer should receive an opinion from counsel to the issuer/obligor that the Financial
Guaranty Agreement is a legal, valid and binding obligation of the issuer/obligor and is
enforceable against the issuer/obligor in accordance with its terms.
In general terms, the "flow of funds" would be structured as follows:
All gross revenues should be paid in the following order with the priority indicated:
(1) expenses of operation and maintenance;
(2) debt service on the bonds;
(3) reimbursement of amounts advanced by the Insurer under the Surety Bond;
(4) reimbursement of cash amounts, if any, drawn from the reserve fund;
(5) replenishment of Renewal and Replacement Fund;
(6) payment to the Insurer of interest on amounts advanced under the Surety
Bond;
(7) all other lawful uses, including the debt service payment on any subordinate
bonds.
Provision must be made for the Insurer to be paid all amounts owed to it under the terms of
the Financial Guaranty Agreement or any other documents before the bond documents may be
terminated.
mbia
WISDOM IN ACTIONsm
It will be the responsibility of the trustee/paying agent to maintain adequate records, verified
with the Insurer, as to the amount available to be drawn at any given time under the Surety Bond
and as to the amounts paid and owing to the Insurer under the terms of the Financial Guaranty
Agreement.
There may be no optional redemption of bonds or distribution of funds to the issuer and/or
the underlying obligor unless all amounts owed to the Insurer under the terms of the Financial
Guaranty Agreement or any other documents have been paid in full.
8/12/93
Exhibit F
FINANCIAL GUARANTY AGREEMENT (ISSUER)
FINANCIAL GUARANTY AGREEMENT made as of [CLOSING DATE], 2007, by
and between the City of Delray Beach, Florida, a municipal corporation of the State of Florida
(the "Issuer") and MBIA Insurance Corporation (the "Insurer"), organized under the laws of the
state of New York.
WITNESSETH:
WHEREAS, the Issuer has or will issue its Utilities Tax Revenue Bonds, Series 2007
(herein, the "Obligations"); and
WHEREAS, pursuant to the terms of Resolution No. R- 98-9 adopted by the Issuer on
December 3, 1991, as amended and supplemented by Resolution No. R-90-02 adopted by the
Issuer on December 2, 2002, as further amended and supplemented by Resolution No. R-21-07
adopted by the Issuer on August 21, 2007 (collectively, the "Document") the Issuer agrees to
make certain payments on the Obligations; and
WHEREAS, the Insurer will issue its Surety Bond, substantially in the form set forth in
Annex A to this Agreement, guaranteeing certain payments by the Issuer subject to the terms and
limitations of the Surety Bond; and
WHEREAS, to induce the Insurer to issue the Surety Bond, the Issuer has agreed to pay
the premium for the Surety Bond and to reimburse the Insurer for all payments made by the
Insurer under the Surety Bond, all as more fully set forth in this Agreement; and
WHEREAS, the Issuer understands that the Insurer expressly requires the delivery of this
Agreement as part of the consideration for the execution by the Insurer of the Surety Bond; and
NOW, THEREFORE, in consideration of the premises and of the agreements herein
contained and of the execution of the Surety Bond, the Issuer and the Insurer agree as follows:
ARTICLE I
DEFINITIONS; SURETY BOND
Section 1.01. Definitions. The terms which are capitalized herein shall have the
meanings specified in Annex B hereto.
Section 1.02. Suret~Bond.
(a) The Insurer will issue the Surety Bond in accordance with and subject to
the terms and conditions of the Commitment.
(b) The maximum liability of the Insurer under the Surety Bond and the
coverage and term thereof shall be subject to and limited by the terms and conditions of the
Surety Bond.
Section 1.03. Premium. In consideration of the Insurer agreeing to issue the Surety
Bond hereunder, the Issuer hereby agrees to pay or cause to be paid the Premium set forth in
Annex B hereto. The Premium on the Surety Bond is not refundable for any reason.
Section 1.04. Certain Other Expenses. The Issuer will pay all reasonable fees and
disbursements of the Insurer's special counsel related to any modification of this Agreement or
the Surety Bond.
ARTICLE II
REIMBURSEMENT AND INDEMNIFICATION
OBLIGATIONS OF ISSUER AND SECURITY THEREFOR
Section 2.01. Reimbursement for Payments Under the Surety Bond and Expenses;
Indemnification.
(a) The Issuer will reimburse the Insurer, within the Reimbursement Period,
without demand or notice by the Insurer to the Issuer or any other person, to the extent of each
Surety Bond Payment with interest on each Surety Bond Payment from and including the date
made to the date of the reimbursement at the lesser of the Reimbursement Rate or the maximum
rate of interest permitted by then applicable law.
(b) The Issuer also agrees to reimburse the Insurer immediately and
unconditionally upon demand, to the extent permitted by state law, for all reasonable expenses
incurred by the Insurer in connection with the enforcement by the Insurer of the Issuer's
obligations under this Agreement, the Document, and any other document executed in
connection with the issuance of the Obligations, together with interest on all such expenses from
and including the date incurred to the date of payment at the rate set forth in subsection (a) of
this Section 2.01.
(c) The Issuer agrees to indemnify the Insurer, to the extent permitted by state
law, against any and all liability, claims, loss, costs, damages, fees of attorneys and other
expenses which the Insurer may sustain or incur by reason of or in consequence of (i) the failure
of the Issuer to perform or comply with the covenants or conditions of this Agreement or (ii)
reliance by the Insurer upon representations made by the Issuer or (iii) a default by the Issuer
under the terms of the Document or any other documents executed in connection with the
issuance of the Obligations.
(d) The Issuer agrees that all amounts owing to the Insurer pursuant to Section
1.03 hereof and this Section 2.01 must be paid in full prior to any optional redemption or
refunding of the Obligations.
(e) All payments made to the Insurer under this Agreement shall be paid in
lawful currency of the United States in immediately available funds at the Insurer's office at 113
King Street, Armonk, New York 10504, Attention: Accounting and Insured Portfolio
Management Departments, or at such other place as shall be designated by the Insurer.
Section 2.02. Allocation of Payments. The Insurer and the Issuer hereby agree that each
payment received by the Insurer from or on behalf of the Issuer as a reimbursement to the Insurer
as required by Section 2.01 hereof shall be applied by the Insurer first, toward payment of any
2
unpaid premium; second, toward repayment of the aggregate Surety Bond Payments made by the
Insurer and not yet repaid, payment of which will reinstate all or a portion of the Surety Bond
Coverage to the extent of such repayment (but not to exceed the Surety Bond Limit); and third,
upon full reinstatement of the Surety Bond Coverage to the Surety Bond Limit, toward other
amounts, including, without limitation, any interest payable with respect to any Surety Bond
Payments then due to the Insurer.
Section 2.03. Securi , for Payments; Instruments of Further Assurance. To the extent,
but only to the extent, that the Document pledges to the Owners, or grants a security interest or
lien in or on the Pledged Revenues (as defined in the Document) in order to secure the
Obligations or provide a source of payment for the Obligations, the Issuer hereby grants to the
Insurer a security interest in or lien on, as the case may be, and pledges to the Insurer all such
Pledged Revenues as security for payment of all amounts due hereunder and under the Document
or any other document executed in connection with the issuance of the Obligations, which
security interest, lien and/or pledge created or granted under this Section 2.03 shall be
subordinate only to the interests of the Owners in such Pledged Revenues, except as otherwise
provided. The Issuer agrees that it will, from time to time, execute, acknowledge and deliver, or
cause to be executed, acknowledged and delivered, any and all financing statements, if
applicable, and all other further instruments as may be required by law or as shall reasonably be
requested by the Insurer for the perfection of the security interest, if any, granted under this
Section 2.03 and for the preservation and protection of all rights of the Insurer under this Section
2.03.
Section 2.04. Unconditional Obli ag tion. The obligations hereunder are absolute and
unconditional and will be paid or performed strictly in accordance with this Agreement, subject
to the limitations of the Document, irrespective of:
(a) any lack of validity or enforceability of, or any amendment or other
modification of, or waiver with respect to the Obligations, the Document or any other document
executed in connection with the issuance of the Obligations; or
(b) any exchange, release or nonperfection of any security interest in property
securing the Obligations or this Agreement or any obligations hereunder; or
(c) any circumstances that might otherwise constitute a defense available to,
or discharge of, the Issuer with respect to the Obligations, the Document or any other document
executed in connection with the issuance of the Obligations; or
(d) whether or not such obligations are contingent or matured, disputed or
undisputed, liquidated or unliquidated.
Section 2.05. Insurer's Rights. The Issuer shall repay the Insurer to the extent of
payments made and expenses incurred by the Insurer in connection with the Obligations and this
Agreement. The obligation of the Issuer to repay such amounts shall be subordinate only to the
rights of the Owners to receive regularly scheduled principal and interest on the Obligations.
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Section 2.06. On-Going Information Obligations of Issuer.
(a) Annual Reports. The Issuer will provide to the Insurer annual financial
statements audited by an independent certified public accountant by March 31 of each year for
the prior fiscal year ended September 30; and
(b) Compliance Certificate. On an annual basis the Issuer will provide to the
Insurer a certificate confirming compliance with all covenants and obligations hereunder and
under the Revenue Agreement, the Document or any other document executed in connection
with the issuance of the Obligations.
ARTICLE III
AMENDMENTS TO DOCUMENT
So long as this Agreement is in effect, the Issuer agrees that it will not agree to amend the
Document or any other document executed in connection with the issuance of the Obligations,
without the prior written consent of the Insurer.
ARTICLE IV
EVENTS OF DEFAULT; REMEDIES
Section 4.01. Events of Default. The following events shall constitute Events of Default
hereunder:
(a) The Issuer shall fail to pay to the Insurer when due any amount payable
under Sections 1.03; or
(b) The Issuer shall fail to pay to the Insurer any amount payable under
Sections 1.04 and 2.01 hereof and such failure shall have continued for a period in excess of the
Reimbursement Period; or
(c) Any material representation or warranty made by the Issuer under the
Document or hereunder or any statement in the application for the Surety Bond or any report,
certificate, financial statement, document or other instrument provided in connection with the
Commitment, the Surety Bond, the Obligations, or herewith shall have been materially false at
the time when made; or
(d) Except as otherwise provided in this Section 4.01, the Issuer shall fail to
perform any of its other obligations under the Document, or any other document executed in
connection with the issuance of the Obligations, or hereunder, provided that such failure
continues for more than 30 days after receipt by the Issuer of written notice of such failure to
perform; or
(e) The Issuer shall (i) voluntarily commence any proceeding or file any
petition seeking relief under the United States Bankruptcy Code or any other Federal, state or
foreign bankruptcy, insolvency or similar law, (ii) consent to the institution of, or fail to
controvert in a timely and appropriate manner, any such proceeding or the filing of any such
petition, (iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator or similar official for such party or for a substantial part of its property, (iv) file an
4
answer admitting the material allegations of a petition filed against it in any such proceeding, (v)
make a general assignment for the benefit of creditors, (vi) become unable, admit in writing its
inability or fail generally to pay its debts as they become due or (vii) take action for the purpose
of effecting any of the foregoing; or
(f) An involuntary proceeding shall be commenced or an involuntary petition
shall be filed in a court of competent jurisdiction seeking (i) relief in respect of the Issuer, or of a
substantial part of its property, under the United States Bankruptcy Code or any other Federal,
state or foreign bankruptcy, insolvency or similar law or (ii) the appointment of a receiver,
trustee, custodian, sequestrator or similar official for the Issuer or for a substantial part of its
property; and such proceeding or petition shall continue undismissed for 60 days or an order or
decree approving or ordering any of the foregoing shall continue unstayed and in effect for 30
days.
Section 4.02. Remedies. If an Event of Default shall occur and be continuing, then the
Insurer may take whatever action at law or in equity may appear necessary or desirable to collect
the amounts then due and thereafter to become due under this Agreement or to enforce
performance of any obligation of the Issuer to the Insurer under the Document or any related
instrument, and any obligation, agreement or covenant of the Issuer under this Agreement;
provided, however, that the Insurer may not take any action to direct or require acceleration or
other early redemption of the Obligations or adversely affect the rights of the Owners. In
addition, if an Event of Default shall occur due to the failure to pay to the Insurer the amounts
due under Section 1.03 hereof, the Insurer shall have the right to cancel the Surety Bond in
accordance with its terms. All rights and remedies of the Insurer under this Section 4.02 are
cumulative and the exercise of any one remedy does not preclude the exercise of one or more of
the other available remedies.
ARTICLE V
SETTLEMENT
The Insurer shall have the exclusive right to decide and determine whether any claim,
liability, suit or judgment made or brought against the Insurer, the Issuer or any other party on
the Surety Bond shall or shall not be paid, compromised, resisted, defended, tried or appealed,
and the Insurer's decision thereon, if made in good faith, shall be final and binding upon the
Insurer, the Issuer and any other party on the Surety Bond. An itemized statement of payments
made by the Insurer, certified by an officer of the Insurer, or the voucher or vouchers for such
payments, shall be prima facie evidence of the liability of the Issuer, and if the Issuer fails to
immediately reimburse the Insurer upon the receipt of such statement of payments, interest shall
be computed on such amount from the date of any payment made by the Insurer at the rate set
forth in subsection (a) of Section 2.01 hereof.
ARTICLE VI
MISCELLANEOUS
Section 6.01. Interest Computations. All computations of interest due hereunder shall
be made on the basis of the actual number of days elapsed over a year of 360 days.
Section 6.02. Exercise of Rights. No failure or delay on the part of the Insurer to
exercise any right, power or privilege under this Agreement and no course of dealing between
5
the Insurer and the Issuer or any other party shall operate as a waiver of any such right, power or
privilege, nor shall any single or partial exercise of any such right, power or privilege preclude
any other or further exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein expressly provided are cumulative and not exclusive of any rights or
remedies which the Insurer would otherwise have pursuant to law or equity. No notice to or
demand on any party in any case shall entitle such party to any other or further notice or demand
in similar or other circumstances, or constitute a waiver of the right of the other party to any
other or further action in any circumstances without notice or demand.
Section 6.03. Amendment and Waiver. Any provision of this Agreement may be
amended, waived, supplemented, discharged or terminated only with the prior written consent of
the Issuer and the Insurer. The Issuer hereby agrees that upon the written request of the Paying
Agent, the Insurer may make or consent to issue any substitute for the Surety Bond to cure any
ambiguity or formal defect or omission in the Surety Bond which does not materially change the
terms of the Surety Bond nor adversely affect the rights of the Owners, and this Agreement shall
apply to such substituted surety bond. The Insurer agrees to deliver to the Issuer and to the
company or companies, if any, rating the Obligations, a copy of such substituted surety bond.
Section 6.04. Successors and Assigns; Descriptive Headings.
(a) This Agreement shall bind, and the benefits thereof shall inure to, the
Issuer and the Insurer and their respective successors and assigns; provided, that the Issuer may
not transfer or assign any or all of its rights and obligations hereunder without the prior written
consent of the Insurer.
(b) The descriptive headings of the various provisions of this Agreement are
inserted for convenience of reference only and shall not be deemed to affect the meaning or
construction of any of the provisions hereof.
Section 6.05. Other Sureties. If the Insurer shall procure any other surety to reinsure the
Surety Bond, this Agreement shall inure to the benefit of such other surety, its successors and
assigns, so as to give to it a direct right of action against the Issuer to enforce this Agreement,
and "the Insurer," wherever used herein, shall be deemed to include such reinsuring surety, as its
respective interests may appear.
Section 6.06. Signature on Bond. The Issuer's liability shall not be affected by its
failure to sign the Surety Bond nor by any claim that other indemnity or security was to have
been obtained nor by the release of any indemnity, nor the return or exchange of any collateral
that may have been obtained.
Section 6.07. Waiver. The Issuer waives any defense that this Agreement was executed
subsequent to the date of the Surety Bond, admitting and covenanting that such Surety Bond was
executed pursuant to the Issuer's request and in reliance on the Issuer's promise to execute this
Agreement.
Section 6.08. Notices, Requests, Demands. Except as otherwise expressly provided
herein, all written notices, requests, demands or other communications to or upon the respective
parties hereto shall be deemed to have been given or made when actually received, or in the case
of telex or telecopier notice sent over a telex or a telecopier machine owned or operated by a
6
party hereto, when sent, addressed as specified below or at such other address as any of the
parties may hereafter specify in writing to the others:
If to the Issuer: City of Delray Beach, Florida
100 N.W. 1St Street
Delray Beach, Florida 33444
Attention: City Attorney
If to the Paying Agent: Commerce Bank, N.A.
7545 Centurion Parkway, Suite 402
Jacksonville, Florida 32256
Attention: Corporate Trust Officer
If to the Insurer: MBIA Insurance Corporation
113 King Street
Armonk, New York 10504
Attention: Insured Portfolio
Management Group
Section 6.09. Survival of Representations and Warranties. All representations,
warranties and obligations contained herein shall survive the execution and delivery of this
Agreement and the Surety Bond.
Section 6.10. Governing Law. This Agreement and the rights and obligations of the
parties under this Agreement shall be governed by and construed and interpreted in accordance
with the laws of the State.
Section 6.11. Counterparts. This Agreement may be executed in any number of copies
and by the different parties hereto on the same or separate counterparts, each of which shall be
deemed to be an original instrument. Complete counterparts of this Agreement shall be lodged
with the Issuer and the Insurer.
Section 6.12. Severability. In the event any provision of this Agreement shall be held
invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate
or render unenforceable any other provision hereof.
Section 6.13. Survival of Obligations. Notwithstanding anything to the contrary
contained in this Agreement, the obligation of the Issuer to pay all amounts due hereunder and
the rights of the Insurer to pursue all remedies shall survive the expiration, termination or
substitution of the Surety Bond and this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this
Agreement to be duly executed and delivered as of the date first above written.
CITY OF DELRAY BEACH, FLORIDA
By:
Name:
Title:
7
MBIA Insurance Corporation
By:
Name:
Title: President
Attest:
Assistant Secretary
ANNEX A
DEBT SERVICE RESERVE
SURETY BOND
MBIA Insurance Corporation
Armonk, New York 10504
Surety Bond No. XXXXXX
MBIA Insurance Corporation (the "Insurer"), in consideration of the payment of the
premium and subject to the terms of this Surety Bond, hereby unconditionally and irrevocably
guarantees the full and complete payments that are to be applied to payment of principal of and
interest on the Obligations (as hereinafter defined) and that are required to be made by or on
behalf of City of Delray Beach, Florida (the "Issuer") under Resolution No. R-98-9, Resolution
No. R-90-02 and Resolution No. R-21-07, adopted by the Issuer on December 3, 1991,
December 2, 2002 and August 21, 2007, respectively (the "Document") to Commerce Bank,
N.A. (the "Paying Agent"), as such payments are due but shall not be so paid, in connection with
the issuance by the Issuer of City of Delray Beach, Florida Utilities Tax Revenue Bonds, Series
2007 (the "Obligations"), provided, that the amount available hereunder for payment pursuant to
any one Demand for Payment (as hereinafter defined) shall not exceed [Dollar Amount of
Coverage] or the [Debt Service Reserve Fund Requirement] (as defined in the Document) for the
Obligations, whichever is less (the "Surety Bond Limit"); provided, further, that the amount
available at any particular time to be paid to the Paying Agent under the terms hereof (the
"Surety Bond Coverage") shall be reduced and may be reinstated from time to time as set forth
herein.
1. As used herein, the term "Owner" shall mean the registered owner of any
Obligation as indicated in the books maintained by the applicable paying agent, the Issuer or any
designee of the Issuer for such purpose. The term "Owner" shall not include the Issuer or any
person or entity whose obligation or obligations by agreement constitute the underlying security
or source of payment for the Obligations.
2. Upon the later of (i) three (3) days after receipt by the Insurer of a demand for
payment in the form attached hereto as Attachment 1 (the "Demand for Payment"), duly
executed by the Paying Agent; or (ii) the payment date of the Obligations as specified in the
Demand for Payment presented by the Paying Agent to the Insurer, the Insurer will make a
deposit of funds in an account with U.S. Bank Trust National Association, in New York, New
York, or its successor, sufficient for the payment to the Paying Agent, of amounts that are then
due to the Paying Agent (as specified in the Demand for Payment) subject to the Surety Bond
Coverage.
3. Demand for Payment hereunder may be made by prepaid telecopy, telex, TWX or
telegram of the executed Demand for Payment c/o the Insurer. If a Demand for Payment made
hereunder does not, in any instance, conform to the terms and conditions of this Surety Bond, the
Insurer shall give notice to the Paying Agent, as promptly as reasonably practicable, that such
Demand for Payment was not effected in accordance with the terms and conditions of this Surety
Bond and briefly state the reason(s) therefor. Upon being notified that such Demand for
Payment was not effected in accordance with this Surety Bond, the Paying Agent may attempt to
correct any such nonconforming Demand for Payment if, and to the extent that, the Paying Agent
is entitled and able to do so.
4. The amount payable by the Insurer under this Surety Bond pursuant to a particular
Demand for Payment shall be limited to the Surety Bond Coverage. The Surety Bond Coverage
shall be reduced automatically to the extent of each payment made by the Insurer hereunder and
will be reinstated to the extent of each reimbursement of the Insurer pursuant to the provisions of
Article II of the Financial Guaranty Agreement dated the date hereof between the Insurer and the
Issuer (the "Financial Guaranty Agreement"); provided, that in no event shall such reinstatement
exceed the Surety Bond Limit. The Insurer will notify the Paying Agent, in writing within five
(5) days of such reimbursement, that the Surety Bond Coverage has been reinstated to the extent
of such reimbursement pursuant to the Financial Guaranty Agreement and such reinstatement
shall be effective as of the date the Insurer gives such notice. The notice to the Paying Agent
will be substantially in the form attached hereto as Attachment 2.
5. Any service of process on the Insurer or notice to the Insurer may be made to the
Insurer at its offices located at 113 King Street, Armonk, New York 10504 and such service of
process shall be valid and binding.
6. The term of this Surety Bond shall expire on the earlier of (i) [MATURITY
DATE] (the maturity date of the Obligations being currently issued), or (ii} the date on which the
Issuer has made all payments required to be made on the Obligations pursuant to the Document.
7. The premium payable on this Surety Bond is not refundable for any reason,
including the payment prior to maturity of the Obligations.
8. Any suit hereunder in connection with any payment may be brought only by the
Paying Agent within 3 years after (i) a Demand for Payment, with respect to such payment, is
made pursuant to the terms of this Surety Bond and the Insurer has failed to make such payment,
or (ii) payment would otherwise have been due hereunder but for the failure on the part of the
Paying Agent to deliver to the Insurer a Demand for Payment pursuant to the terms of this Surety
Bond, whichever is earlier.
10. There shall be no acceleration payment due under this Policy unless such
acceleration is at the sole option of the Insurer.
IN WITNESS WHEREOF, the Insurer has caused this Surety Bond to be executed in
facsimile on its behalf by its duly authorized officers, this day of June 2007.
MBIA INSURANCE CORPORATION
By:
President
By:
Assistant Secretary
2
Attachment 1
Surety Bond No. XXXXXX
DEMAND FOR PAYMENT
20
MBIA Insurance Corporation
113 King Street
Armonk, New York 10504
Attention: President
Reference is made to the Surety Bond No. XXXXXX (the "Surety Bond") issued by the
MBIA Insurance Corporation (the "Insurer"). The terms which are capitalized herein and not
otherwise defined have the meanings specified in the Surety Bond unless the context otherwise
requires.
The Paying Agent hereby certifies that:
(a) In accordance with the provisions of the Document (attached hereto as Exhibit A),
payment is due to the Owners of the Obligations on (the "Due Date") in an amount
equal to $ (the "Amount Due").
(b) The [Debt Service Reserve Fund Requirement] for the Obligations is
(c) The amounts legally available to the Paying Agent on the Due Date will be
$ less than the Amount Due (the "Deficiency").
(d) The Paying Agent has not heretofore made demand under the Surety Bond for the
Amount Due or any portion thereof.
The Paying Agent hereby requests that payment of the Deficiency (subject to the Surety
Bond Coverage) be made by the Insurer under the Surety Bond and directs that payment under
the Surety Bond be made to the following account by bank wire transfer of federal or other
immediately available funds in accordance with the terms of the Surety Bond:
[Paying Agent's Account]
COMMERCE BANK, N.A.
By:
Its:
Attachment 2
Surety Bond No. XXXXXX
NOTICE OF REINSTATEMENT
200_
Commerce Bank, N.A.
7545 Centurion Parkway, Suite 402
Jacksonville, Florida 32256
Attention: Corporate Trust Services
Reference is made to the Surety Bond No. XXXXXX (the "Surety Bond") issued by the
MBIA Insurance Corporation (the "Insurer"). The terms which are capitalized herein and not
otherwise defined have the meanings specified in the Surety Bond unless the context otherwise
requires.
The Insurer hereby delivers notice that it is in receipt of payment from the Obligor
pursuant to Article II of the Financial Guaranty Agreement and as of the date hereof the Surety
Bond Coverage is $
MBIA Insurance Corporation
By:
President
Attest:
Assistant Secretary
ANNEX B
DEFINITIONS
For all purposes of this Agreement and the Surety Bond, except as otherwise expressly
provided herein or unless the context otherwise requires, all capitalized terms shall have the
meaning as set out below, which shall be equally applicable to both the singular and plural forms
of such terms.
"Agreement" means this Financial Guaranty Agreement.
"Closing Date" means [CLOSING DATE], 2007.
"Commitment" means the commitment to issue Municipal Bond Guaranty Insurance in
the form attached hereto as Annex C.
"Debt Service Payments" means those payments required to be made by or on behalf of
the Issuer which will be applied to payment of principal of and interest on the Obligations.
"Demand for Payment" means the certificate submitted to the Insurer for payment under
the Surety Bond substantially in the form attached to the Surety Bond as Attachment 1.
"Document" means Resolution No. R- 98-9 adopted by the Issuer on December 3, 1991,
as amended and supplemented by Resolution No. R-90-02 adopted by the Issuer on December 2,
2002, as further amended and supplemented by Resolution No. R-21-07 adopted by the Issuer on
August 21, 2007.
"Event of Default" shall mean those events of default set forth in Section 4.01 of the
Agreement.
"Insurer" has the same meaning as set forth in the first paragraph of this Agreement.
"Issuer" means City of Delray Beach, Florida, a municipal corporation of the State of
Florida.
"Obligations" means City of Delray Beach, Florida Utility Tax Revenue Bonds,
Series 2007.
"Owners" means the registered owner of any Obligation as indicated in the books
maintained by the Paying Agent, the Issuer or any designee of the Issuer for such purpose.
"Paying Agent" means Commerce Bank, N.A.
"Premium" means [PREMIUM] payable to the Insurer on or prior to the Closing Date.
"Reimbursement Period" means, with respect to a particular Surety Bond Payment, the
period commencing on the date of such Surety Bond Payment and ending on the earlier of the
date of cancellation of the Surety Bond due to nonpayment of Premium when due or on the
expiration of x following such Surety Bond Payment.
"Reimbursement Rate" means Citibank's prime rate plus three (3) percent per annum, as
of the date of such Surety Bond Payment, said "prime rate" being the rate of interest announced
from time to time by Citibank, N.A., New York, New York, as its prime rate. The rate of interest
shall be calculated on the basis of the actual number of days elapsed over a 360-day year.
"State" means Florida.
"Surety Bond" means that surety bond attached hereto as Annex A and issued by the
Insurer guaranteeing, subject to the terms and limitations thereof, Debt Service Payments
required to be made by the Issuer under the Document.
"Surety Bond Coverage" means the amount available at any particular time to be paid
under the terms of the Surety Bond, which amount shall never exceed the Surety Bond Limit.
"Surety Bond Limit" means [SURETY BOND LIMIT].
"Surety Bond Payment" means an amount equal to the Debt Service Payment required to
be made by the Issuer pursuant to the Document less (i) that portion of the Debt Service Payment
paid by or on behalf of the Issuer, and (ii) other funds legally available for payment to the
Owners, all as certified in a Demand for Payment.
2
ANNEX C
COMMITMENT
[To be provided.]
WPB/381675733v3/016787.011900