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Resolution No. 06-18RESOLUTION N0.06-18 A RESOLUTION PROVIDING FOR THE ISSUANCE BY THE CITY OF ATLANTIC BEACH, FLORIDA OF ITS VARIABLE RATE DEMAND HEALTH CARE FACILITIES REVENUE BONDS (FLEET LANDING PROJECT), SERIES 2006, IN AN AGGREGATE PRINCIPAL AMOiJNT NOT TO EXCEED $20,000,000, AND FOR A LOAN BY THE CITY TO NAVAL CONTINUING CARE RETIREMENT FOUNDATION, INC., A FLORIDA NOT-FOR- PROFIT CORPORATION, IN A PRINCIPAL AMOUNT EQUAL TO THE AGGREGATE PRINCIPAL AMOUNT OF SAID SERIES 2006 BONDS, FOR THE PURPOSES OF (A) FINANCING ALL OR ANY PART OF THE COST OF THE ACQUISITION, CONSTRUCTION AND INSTALLATION OF CERTAIN CAPITAL IMPROVEMENTS TO THE CONTINUING CARE RETIREMENT FACILITY KNOWN AS "FLEET LANDING" AS DESCRIBED IN THIS RESOLUTION AND (B) PAYING A PORTION OF THE COSTS OF ISSUING THE SERIES 2006 BONDS; PROVIDING FOR CREDIT ENHANCEMENT; PROVIDING FOR THE RIGHTS OF THE HOLDERS OF THE SERIES 2006 BONDS AND FOR THE PAYMENT THEREOF; AUTHORIZING THE EXECUTION AND DELIVERY OF A TRUST INDENTURE AND LOAN AGREEMENT; AUTHORIZING A NEGOTIATED SALE OF THE SERIES 2006 BONDS, AND APPROVING THE CONDITIONS AND CRITERIA FOR SUCH SALE; AUTHORIZING THE EXECUTION AND DELNERY OF A BOND PURCHASE AGREEMENT WITH RESPECT TO THE SERIES 2006 BONDS; AUTHORIZING AN OFFICIAL STATEMENT WITH RESPECT TO THE SERIES 2006 BONDS; AUTHORIZING THE EXECUTION AND DELIVERY OF THE SERIES 2006 BONDS AND OTHER RELATED INSTRUMENTS AND CERTIFICATES; MAKING CERTAIN OTHER COVENANTS AND AGREEMENTS IN CONNECTION WITH THE ISSUANCE OF THE SERIES 2006 BONDS; AND PROVIDING FOR AN EFFECTNE DATE. RESOLUTION NO. 06-18 BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF ATLANTIC BEACH, FLORIDA: SECTION 1. AUTHORITY FOR THIS RESOLUTION. This Resolution is adopted pursuant to the Constitution of the State of Florida, Chapter 159, Part II, Florida Statutes, as amended and supplemented, and other applicable provisions of law. SECTION 2. DEFINITIONS. Unless the context otherwise requires, the terms defined in this section shall have the meanings specified in this section. Words importing the singulaz shall include the plural, words importing the plural shall include the singulaz, and words importing persons shall include corporations and other entities or associations. "Act" means the Constitution of the State of Florida, Chapter 159, Part II, Florida Statutes, as amended from time to time, and other applicable provisions of law. "Additional Bonds" means the Additional Bonds provided for in the Indenture. "Bond Purchase Agreement" means the Bond Purchase Agreement among the Issuer, the Borrower and the Purchaser, substantially in the form attached hereto as Exhibit D, as amended or supplemented from time to time. "Bonds" means the Series 2006 Bonds and any Additional Bonds. "Borrower" means Naval Continuing Care Retirement Foundation, Inc., a Florida not-for-profit corporation as described in Section SO1(c)(3) of the Code, and its lawful successors and assigns, to the extent permitted by the Loan Agreement. "City" means the City of Atlantic Beach, Florida, an incorporated municipality of the State. "City Commission" means the City Commission of the City. "Code" means the Internal Revenue Code of 1986, as amended. "Credit Facility" means, an irrevocable direct-pay letter of credit, bond insurance policy and/or guaranty (including any substitute letter of credit, bond insurance policy or guaranty delivered in accordance with the financing documents) securing the payment of such Bonds issued by a Credit Provider. "Credit Provider" means a commercial bank, bond insurer and/or other entity where the Credit Facility provided by such entity will cause the Series 2406 Bonds secured by such Credit Facility to be rated at least "A" (without regard to gradations or modifiers) by Moody's or S&P, and shall mean initially Wachovia Bank, National Association, as issuer of an irrevocable direct-pay letter of credit. "Facilities" means the continuing care retirement facilities known as "Fleet Landing" which are located at One Fleet Landing Boulevard in Atlantic Beach, Florida and all land, buildings, structures, improvements, equipment, fixtures, machinery, furniture, furnishings RESOLUTION NO. 06-18 and other real and personal property that are provided by a project and any other capital addition, improvement, extraordinary repair or replacement, and all land, buildings, structures, improvements, equipment, fixtures, machinery, furniture, furnishings and other real and personal property now or hereafter attached to, or located in, or used in connection with, any such land, buildings, structures or improvements and all additions thereto, substitutions therefor and replacements thereof, whether now owned or hereafter acquired by the Borrower. "Indenture" means the Trust Indenture between the Issuer and the Trustee, substantially in the form attached hereto as Exhibit A, as amended or supplemented from time to time. "Inducement Resolution" means the Resolution pertaining to the Series 2006 Bonds, adopted by the Issuer on November 13, 2006. "Issuer" means the City. "Loan Agreement" means the Loan Agreement between the Issuer and the Borrower, substantially in the form attached hereto as Exhibit B, as amended or supplemented from time to time. "Mayor" means the Mayor or, in the Mayor's absence, such other officer of the Issuer as maybe duly authorized by the Issuer to act on his behalf. "Mortgage" means, collectively, the Mortgage and Security Agreement dated as of November 15, 1999, from the Borrower, as mortgagor, to the Issuer, as mortgagee; the Assignment of Mortgage dated as of November 15, 1999 from the Issuer to the 1999 Trustee; and the Mortgage and Security Agreement from the Borrower, as mortgagor, to the 1999 Trustee and Credit Provider, as mortgagees, to be delivered in connection with the issuance of the Series 2006 Bonds, each as amended or supplemented from time to time. "Mortgaged Property" has the meaning assigned to such term in the Mortgage. "1999 Trustee" means U.S. Bank, National Association, as successor trustee to First Union National Bank. "Notes" means the Series 2006 Note and any Additional Notes. "Official Statement" means the Official Statement relating to the Series 2006 Bonds, substantially in the form attached hereto as Exhibit E, as amended or supplemented from time to time. "Project" means the acquisition, construction and installation of certain capital improvements to the continuing care retirement facility known as "Fleet Landing", including without limitation, 35 independent living units consisting of 5 homes and 15 duplexes (each containing 2 units), a community center containing auditorium, fitness center, lap pool, technology center, dining and kitchen facilities, and related facilities, renovations to the existing amenity center, and related facilities, fixtures, furnishings and equipment (collectively, the RESOLUTION NO. 06-18 "Project") to be owned and operated by the Borrower, and located at One Fleet Landing Boulevard, in the City of Atlantic Beach, Florida. "Purchaser" means Wachovia Bank, National Association, the purchaser of the Series 2006 Bonds. "Series 1999 Bonds" means the Issuer's outstanding Health Care Facilities Revenue Refunding Bonds (Fleet Landing Project). "Series 2006 Bonds" means the Issuer's Variable Rate Demand Health Care Facilities Revenue Bonds (Fleet Landing Project), Series 2006, authorized pursuant to Section 6 hereof. "Series 2006 Note" means the non-negotiable promissory note of even date with the Series 2006 Bonds, substantially in the form attached to the Loan Agreement as Exhibit "B," to be executed and delivered by the Borrower to the Trustee in connection with the issuance of the Series 2006 Bonds. "State" means the State of Florida. "Trustee" means U.S. Bank National Association, Jacksonville, Florida, or a national banking association or trust company at the time serving as corporate trustee under the provisions of the Indenture. SECTION 3. FINDINGS. It is hereby ascertained, determined and declared as follows: A. The Issuer is an incorporated municipality of the State and is a "local agency" duly authorized and empowered by the Act to finance the acquisition, construction, reconstruction, improvement, rehabilitation, renovation, expansion and enlargement, or additions to, furnishing and equipping of any capital project, including any "project" (as defined or described in the Act), including land, rights in land, buildings ar~d other structures, machinery, equipment, appurtenances and facilities incidental thereto, and other improvements necessary or convenient therefor, and to obtain funds to finance or refinance the cost thereof by the issuance of its revenue bonds, as the case may be, for the purposes, among others, of enhancing and expanding the health care industry, improving the prosperity and welfare of the State and its inhabitants, improving living conditions and health care in the State, increasing purchasing power and opportunities for gainful employment, and otherwise providing for and contributing to the health, safety and welfare of the people of the State. B. The Borrower has requested that the Issuer issue the Series 2006 Bonds for the purpose of financing all or a part of the costs of a capital project consisting of the acquisition, construction and installation of certain capital improvements to the continuing care retirement facility known as "Fleet Landing", including without limitation, 35 independent living units consisting of 5 homes and 15 duplexes (each containing 2 units), a community center containing auditorium, fitness center, lap pool, technology center, dining and kitchen facilities, and related facilities, renovations to the existing amenity center, and related facilities, fixtures, furnishings and equipment. RESOLUTION NO. 06-18 C. In the Inducement Resolution, the Issuer preliminarily authorized the issuance of its Health Care Facilities Revenue Bonds (Fleet Landing Project), in an aggregate principal amount of not to exceed $20,000,000 for the purpose of financing all or any part of the cost of the acquisition, construction and installation of the Project. Based upon updated estimates of the anticipated sources and uses of funds, the Borrower has requested the Issuer to authorize the issuance of the Series 2006 Bonds in an aggregate principal amount not to exceed $20,000,000. D. To reduce the transaction and financing costs relating to the issuance of separate bond issues in separate cities, the Borrower has requested the Issuer to finance the Project through the issuance of the Bonds, with the proceeds of the Bonds to be loaned by the Issuer to the Borrower to finance the costs of the portions of the Project located in the City and in the City of Jacksonville, Florida. The Borrower has represented to the Issuer that financing the Project pursuant to a single financing plan will result in substantial cost savings for the Borrower in connection with the Project. E. The Borrower has received from the Credit Provider a commitment to issue the Credit Facility with respect to the Series 2006 Bonds. The Series 2006 Bonds will not be issued unless and until the Credit Provider has issued the Credit Facility and the Series 2006 Bonds have been rated "A" or better by Standard & Poor's Rating Services (without regard to gradations or modifiers). F. The Bonds will be secured by (i) an obligation of the Borrower in the Loan Agreement to make payments sufficient to pay, among other things, the principal of and premium, if any, and interest on such Bonds when and as the same become due, and (ii) the Credit Facility. G. In compliance with Section 147(f) of the Code and the Treasury Regulations thereunder, notice of a public hearing pertaining to the issuance of the Series 2006 Bonds, the plan of financing and the location and nature of the Project has been duly given in the same manner as required by the Issuer for the adoption of resolutions generally, including publication of notice not less than fourteen (14) days prior to such public hearing in a newspaper of general circulation in the City. Such public hearing was held by the Issuer on December 11, 2006, and interested individuals were provided a reasonable opportunity to express their views, both orally and in writing, on the proposed issuance of the Series 2006 Bonds, the plan of financing described herein and the location and nature of the Project. H. The Series 2006 Bonds will not be issued unless the Issuer has received a satisfactory opinion of bond counsel to the effect (among other things) that the interest on the Series 2006 Bonds will be excluded from gross income for federal income tax purposes under existing laws of the United States of America at the time of the delivery of the Series 2006 Bonds. I. The Project and the financing of all or a part of the cost of the Project by the Issuer will be in furtherance of the purposes of the Act in that it will encourage the location of the Project in Duval County (the "County") and the State, it will enhance and expand the health care industries, promote and foster the economic growth and development of the Issuer RESOLUTION NO. 06-18 5 and the State, advance the public purposes providing modern and efficient continuing care facilities in the City and the County, improve living conditions and health care and will serve other predominantly public purposes as set forth in the Act. The Project is appropriate to the needs and circumstances of and shall make a significant contribution to the economic growth and development of the City, the County and the State, shall preserve and provide gainful employment and shall serve a public purpose by advancing the economic prosperity and the general welfare of the City, the County, the State and its people as stated in Section 159.26, Florida Statutes, as amended. J. Based on representations made by the Borrower, the City and other local agencies have been and will continue to be able to cope satisfactorily with the impact of the Facilities and have been and will be able to provide, or cause to be provided when needed, the public facilities, including utilities and public services, that have been or will be necessary for the construction, operation, repair and maintenance of the Facilities and on account of any increases in population or other circumstances resulting therefrom. K. Adequate Ir~ovision has been made in the documents attached hereto for a loan by the Issuer to the Borrower to finance a portion of the cost of the Project, for the operation, repair and maintenance of the Facilities at the expense of the Borrower and for the repayment by the Borrower of the loan in installments sufficient to pay the principal of, premium, if any, and the interest on the Series 2006 Bonds and all costs and expenses relating thereto in the amounts and at the times required, and for the payment by the Borrower of all costs incurred by the Issuer in connection with the financing of a portion of the cost of the Project and the administration of the Facilities. L. Subject to the condition that the Borrower provide the Credit Facility to secure the payment of the Bonds, and based upon the financial information heretofore furnished to the Issuer by the Borrower, the Borrower is financially responsible and fully capable and willing to serve the purposes of the Act and fulfill its obligations under the proposed financing agreements for the Project and under any other agreements to be made in connection with the issuance of the Bonds and the use of the Bond proceeds for financing all or a part of the cost of the Project, including the obligation to pay loan payments or other payments in an amount sufficient in the aggregate to pay all of the interest, principal and redemption premiums, if any, on the Bonds, in the amounts and at the times required, the obligation to operate, repair and maintain the Project at the Borrower's own expense, and such other responsibilities as may be imposed under such agreements, due consideration having been given to the financial condition of the Borrower, its ratio of current assets to current liabilities, net worth, earnings trends and coverage of all fixed charges, the nature of the industry or business and of the activity involved, the inherent stability thereof and other factors determinative of the capabilities of the Borrower financially and otherwise, to fulfill its obligations consistently with the purposes of the Act, and to the condition that the Bonds be fully secured by the Credit Facility. M. Based on representations made by the Borrower, the costs of the Project were "costs" of a "project" within the meaning of the Act. All of the proceeds of the Series 2006 Bonds, and to pay a portion of the costs of issuance of the Series 2006 Bonds, will be applied to the financing of a portion of the costs of the Project as provided herein. RESOLUTION NO. 06-18 6 N. Based on information supplied by the Borrower, the best interests of the inhabitants of the City will be served, and the public purposes of the Act will be advanced, by the financing of the cost of the Project in the manner described in the Loan Agreement and the Indenture. O. The Borrower's obligation to repay the loan made pursuant to the Loan Agreement will be evidenced by the Series 2006 Note. P. The principal of, premium, if any, and interest on the Series 2006 Bonds, and all sinking fund and other payments required to be made by the Issuer under the provisions of the Indenture and the Loan Agreement, shall be payable solely from (i) the income, revenues and proceeds derived by the Issuer under the Loan Agreement, and (ii) other moneys pledged therefor under the Indenture, including proceeds of the Series 2006 Bonds and other moneys held in trust under the Indenture. The Series 2006 Bonds shall not be deemed to constitute a debt, liability or obligation of the Issuer, of Duval County or of the State or any political subdivision thereof, or a pledge of the faith and credit or the taxing power of the Issuer, of Duval County or of the State or any political subdivision thereof, but shall be payable solely from the revenues and proceeds pledged thereto under the Indenture. The issuance of the Series 2006 Bonds shall not directly or indirectly, or contingently, obligate the Issuer, Duval County or the State or any political subdivision thereof, to levy or pledge any form of taxation whatever therefor or to make any appropriation for the payment thereof. No holder or owner of any of the Series 2006 Bonds shall ever have any right to compel the exercise of the ad valorem taxing power or the levy or collection of any ad valorem taxes, directly or indirectly, for the payment of any of the principal of, premium, if any, or interest on the Series 2006 Bonds. Q. The payments to be made by the Borrower under the Loan Agreement will be sufficient to pay all principal of, premium, if any, and interest on the Series 2006 Bonds, as the same shall become due, and to make all other payments required by the Loan Agreement and the Indenture. R. A negotiated sale of the Bonds is required and necessary and is in the best interest of the Issuer for the followi-ng reasons: the Bonds will be special and limited obligations of the Issuer payable out of moneys derived by the Issuer from the Borrower or as otherwise provided herein and will be secured by funds and collateral of the Borrower; the Borrower will be required to pay all costs of the Issuer in connection with the financing; the cost of issuance of the Bonds, which must be borne directly or indirectly by the Borrower would most likely be greater if the Bonds are sold at public sale by competitive bids than if the Bonds are sold at negotiated sale, and there is no basis, considering prevailing market conditions, for any expectation that the terms and conditions of a sale of the Bonds at public sale by competitive bids would be any more favorable than at negotiated sale; because prevailing market conditions are uncertain, it is desirable to sell the Bonds at a predetermined price; and revenue bonds having the characteristics of the Bonds are typically sold at negotiated sale under prevailing market conditions. S. The Purchaser has orally agreed with the Borrower to use its best efforts to submit to the Issuer and the Borrower an offer to purchase the Series 2006 Bonds in substantially the form of the Bond Purchase Agreement upon terms acceptable to the Issuer and the Borrower RESOLUTION NO. 06-I8 7 as hereinafter authorized, and it is necessary and appropriate to authorize a negotiated sale of the Series 2006 Bonds to the Purchaser and to authorize the execution and delivery of the Bond Purchase Agreement upon the terms hereinafter provided. T. It is appropriate that the .Issuer approve the Official Statement, and that the Issuer authorize the distribution of the Official Statement prior to the issuance and delivery of the Series 2006 Bonds. For this purpose, it is appropriate that the Official Statement be approved and the distribution thereof in the manner hereinafter provided be authorized. U. All conditions precedent to the financing of the Project have been satisfied, or will be satisfied prior to the delivery of the Series 2006 Bonds, and the issuance of the Series 2006 Bonds will otherwise comply with all of the provisions of the Act. SECTION 4. FINANCING OF PROJECT AUTHORIZED. The financing by the Issuer of the Project in the manner provided herein is hereby authorized. SECTION 5. l~'~EMORANDUM OF AGREEMENT. All actions taken by the Issuer in connection with its November 13, 2006 meeting, pertaining to the adoption of the Inducement Resolution and the execution of the Memorandum of Agreement referred to therein (the "Memorandum of Agreement") are hereby ratified and confirmed in all respects. SECTION 6. AUTHORIZATION OF THE SERIES 2006 BONDS. For the purpose of providing funds to (i) pay or reimburse the costs of the Project, and (ii) pay certain costs of issuance of the Bonds, and subject and pursuant to the provisions hereof, the issuance of the Bonds in an aggregate principal amount of not to exceed $20,000,000 is hereby authorized; provided, however, that no series of Bonds shall be issued unless and until: (a) the Credit Facility shall have been delivered to the Trustee; and (b) the City Attorney has rendered his legal opinion relating to the issuance of the of Bonds. The Bonds shall be in the aggregate principal amounts, dated such dates, shall bear interest at such rates, shall be payable or shall mature on such dates and in such amounts, shall be issued in such denominations, shall be subject to optional and mandatory redemption and tender at such time or times, and upon such terms and conditions, shall be payable at the place or places and in the manner, shall be executed, authenticated and delivered, shall otherwise be in such forms, and subject to such terms and conditions, all as provided in the Trust Indenture and Bond Purchase Agreement. Such Bonds shall be designated "Variable Rate Demand Health Care Facilities Revenue Bonds (Fleet Landing Project), Series 2006." The Bonds and the premium, if any, and the interest thereon shall not be deemed to constitute a general debt, liability or obligation of the Issuer, or the State, or of any political subdivision thereof, or a pledge of the faith and credit of the Issuer, or the State or of any political subdivision thereof, but shall be payable solely from the Trust Estate (as defined in the Trust Indenture) provided therefor under the Trust Indenture, and the Issuer is not obligated to pay the Bonds or the interest thereon except from such Trust Estate pledged therefor and neither the faith and credit of the Issuer nor the faith and credit or taxing power of the Issuer, the State or any political subdivision thereof is pledged to the payment of the principal of, premium, if any, or interest on the Bonds. RESOLUTION NO. 06-I8 The Indenture permits the issuance from time to time of Additional Bonds (as defined in the Indenture), in addition to the issuance of the Initial Bonds (as defined in the Indenture), to make advances on the loan to the Corporation to finance additional costs of the Project. All Additional Bonds shall be subject to the same interest rate, redemption, tender and authorized denomination provisions and shall be in substantially the same form as the Initial Bonds issued under the Indenture. The aggregate principal amount of all Bonds that may be issued under the Indenture is limited to $20,000,000. SECTION 7. AUTHORIZATION OF EXECUTION AND DELIVERY OF THE INDENTURE. The Indenture, substantially in the form attached hereto as Exhibit A with such insubstantial changes, corrections, insertions and deletions as may be approved by the Mayor, such approval to be evidenced conclusively by their execution thereof, is hereby approved and authorized; the Issuer hereby authorizes and directs the Mayor to date and execute and the City Clerk to attest, under the official seal of the Issuer, the Indenture, and to deliver the Indenture to the Trustee; and all of the provisions of the Indenture, when executed and delivered by the Issuer, as authorized r~erein, and by the Trustee, shall be deemed to be a part of this Resolution as fully and to the same extent as if incorporated verbatim herein. SECTION 8. AUTHORIZATION OF EXECUTION AND DELIVERY OF THE LOAN AGREEMENT. The Loan Agreement, substantially in the form attached hereto as Exhibit B with such insubstantial changes, corrections, insertions and deletions as may be approved by the Mayor, such approval to be evidenced conclusively by their execution thereof, is hereby approved and authorized; the Issuer hereby authorizes and directs the Mayor to date and execute and the City Clerk to attest, under the official seal of the Issuer, the Loan Agreement, and to deliver the Loan Agreement to the Borrower; and all of the provisions of the Loan Agreement, when executed and delivered by the Issuer, as authorized herein, and by the Borrower, shall be deemed to be a part of this Resolution as fully and to the same extent as if incorporated verbatim herein. SECTION 9. AUTHORIZATION OF EXECUTION AND DELIVERY OF ASSIGNMENT OF SERIES 2006 NOTE. The assignment of the Series 2006 Note substantially in the form set forth in Exhibit B to the Loan Agreement, with such insubstantial changes, corrections, insertions and deletions as may be approved by the Mayor, such approval to be evidenced conclusively by their execution thereof, are hereby approved and authorized; the Issuer hereby authorizes and directs the Mayor to date and execute and the City Clerk to attest, under the official seal of the Issuer, the assignment of the Series 2006 Note contained therein, upon proper execution of the Series 2006 Note by the Borrower and delivery to the Issuer, and to deliver the Series 2006 Note to the Trustee, in the manner provided in the Loan Agreement; and all of the provisions of the Series 2006 Note and the assignment thereof, when executed and delivered by the Borrower and by the Issuer as authorized herein, shall be deemed to be a part of this Resolution as fully and to the same extent as if incorporated verbatim herein. RESOLUTION NO. 06-18 9 SECTION 10. NEGOTIATED SALE OF SERIES 2006 BONDS; AUTHORIZATION OF EXECUTION AND DELIVERY OF THE BOND PURCHASE AGREEMENT. Subject to the satisfaction of the conditions set forth in this Section, a negotiated sale of the Series 2006 Bonds is hereby authorized. The Mayor is hereby authorized and directed to award the sale of the Series 2006 Bonds to the Purchaser pursuant to the provisions of the Bond Purchase Agreement, subject to all the following conditions: A. Receipt by the Mayor of the Bond Purchase Agreement providing for, among other things, (i) the issuance of such Bonds in an aggregate principal amount which, together with the cumulative aggregate principal amount of any Bonds previously issued by the Issuer, shall not to exceed $20,000,000, (ii) an underwriter's discount not in excess of 2% of the par amount of such Bonds, (iii) a variable interest rate to be determined in accordance with the provisions of the Trust Indenture, with an initial rate not to exceed 6.0% per annum, and (iv) the final maturity date of such Bonds to be no later than thirty-one (31) years from the dated date of such Bonds. B. Receipt by tlr~-Mayor from the Purchaser of a disclosure statement and truth-in-bonding information complying with Section 218.385, Florida Statutes. Upon satisfaction of the foregoing conditions, the Bond Purchase Agreement, with such other insubstantial changes, corrections, insertions and deletions as may be approved by the Mayor, such approval to be evidenced conclusively by the Mayor's execution thereof, is approved and authorized; the Issuer hereby authorizes and directs the Mayor to date and execute the Bond Purchase Agreement and to deliver the Bond Purchase Agreement to the Purchaser; and all of the provisions of the Bond Purchase Agreement, when executed and delivered by the Issuer as authorized herein and by the Borrower and the Purchaser, shall be deemed to be a part of this Resolution as fully and to the same extent as if incorporated verbatim herein. SECTION 11. APPROVAL AND AUTHORIZATION OF OFFICIAL STATEMENT. The Official Statement in substantially the form attached hereto as Exhibit E, with such insubstantial omissions, insertions and variations as may be necessary and/or desirable and approved by the Mayor prior to the release thereof, is hereby authorized to be delivered by the Issuer to the Purchaser for distribution prior to the issuance and delivery of the Series 2006 Bonds. The Mayor is hereby authorized to deem the Official Statement final as of its date on behalf of the Issuer for purposes of Rule 15c2-12 of the Securities and Exchange Commission (except for such omissions permitted by such Rule), and to execute a certificate to that effect to be delivered to the Purchaser. The Mayor is hereby authorized to evidence the Issuer's approval of the Official Statement by the Mayor's endorsement thereof upon one or more copies, and approval of all such omissions, insertions and variations may be presumed from such endorsement upon any copy of the Official Statement. Bond Counsel is hereby directed to furnish to the Division of Bond Finance of the Department of General Services of the State of Florida a copy of the Official Statement, a notice of the impending sale of the Series 2006 Bonds and the other information required by Section 218.38, Florida Statutes, as amended, within the appropriate time periods specified by such section. SECTION 12. CREDIT ENHANCEMENT. The Series 2006 Bonds shall not be issued until the Credit Provider has issued the Credit Facility with respect to the Series 2006 RESOLUTION NO. 06-18 10 Bonds and the Series 2006 Bonds have been rated "A" or better (without regard to gradations or modifiers) by Standard & Poor's Ratings Services. The Credit Facility, substantially in the form attached hereto as Exhibit C, with such insubstantial changes, corrections, insertions and deletions as may be approved by the Mayor, such approval to be evidenced conclusively by the execution of the Indenture by the Mayor and City Clerk, is hereby approved. SECTION 13. AUTHORIZATION OF EXECUTION OF OTHER CERTIFICATES AND INSTRUMENTS. The Mayor and the City Clerk are hereby authorized and directed, either alone or jointly, under the official seal of the Issuer, to execute and deliver certificates of the Issuer certifying such facts as counsel for the Issuer, counsel to the Purchaser or Bond Counsel shall require in connection with the issuance, sale and delivery of the Series 2006 Bonds, and to execute and deliver such other instruments, including but not limited to, tax certificates and agreements, deeds, assignments, bills of sale and financing statements, as shall be necessary or desirable to perform the Issuer's obligations under the Loan Agreement, the Indenture, the Bond Purchase Agreement, and the assignment of the Series 2006 Note, and to consummate the transactions hereby authorized. SECTION 14. NO PERSONAL LIABILITY. No representation, statement, covenant, warranty, stipulation, obligation or agreement herein contained, or contained in the Series 2006 Bonds, the Loan Agreement, the Indenture, the Series 2006 Note, the Bond Purchase Agreement, or the assignment thereof or in any certificate or other instrument to be executed on behalf of the Issuer in connection with the issuance of the Series 2006 Bonds, shall be deemed to be a representation, statement, covenant, warranty, stipulation, obligation or agreement of any member, officer, employee or agent of the Issuer in his or her individual capacity, and none of the foregoing persons nor any officer of the Issuer executing the Series 2006 Bonds, the Loan Agreement, the Indenture, the assignment of the Series 2006 Note, the Bond Purchase Agreement, or any certificate or other instrument to be executed in connection with the issuance of the Series 2006 Bonds shall be liable personally thereon or be subject to any personal liability or accountability by reason of the execution or delivery thereof. SECTION 15. APPOINTMENT nF TRUSTEE. U.S. Bank National Association, a national banking association, with a desig::ated corporate trust office located in Jacksonville, Florida, is hereby appointed as the Bond Trustee under the Trust Indenture relating to the Bonds and as registrar and paying agent with respect to the Bonds. SECTION 16. VALIDATION. The Series 2006 Bonds shall not be required to be validated pursuant to Chapter 75, Florida Statutes, as amended; provided, however, that if required by counsel to the Issuer, counsel to the Borrower or Bond Counsel, the Series 2006 Bonds may be validated and in such event Issuer's counsel is hereby authorized, at the expense of the Borrower, to prepare validation pleadings on behalf of the Issuer and to take any and all action as Issuer's counsel may deem necessary or desirable for the validation of such Series 2006 Bonds. SECTION 17. NO THIRD PARTY BENEFICIARIES. Except as provided herein or in the Series 2006 Bonds, the Loan Agreement, the Indenture, the Series 2006 Note, the Bond Purchase Agreement, and any assignment thereof, nothing in this Resolution or in such documents, expressed or implied, is intended or shall be construed to confer upon any person, RESOLUTION NO. 06-18 11 firm, corporation or other organization, other than the Issuer, the Borrower, the Trustee and the owners from time to time of the Series 2006 Bonds any right, remedy or claim, legal or equitable, under and by reason of this Resolution or any provision hereof or of such documents; this instrument, such documents and all provisions hereof and thereof being intended to be and being for the sole and exclusive benefit of the Issuer, the Borrower, the Trustee and the owners from time to time of the Series 2006 Bonds. SECTION 18. PREREQUISITES PERFORMED. All acts, conditions and things relating to the passage of this Resolution, to the issuance, sale and delivery of the Series 2006 Bonds, to the execution and delivery of the Loan Agreement, the Indenture, the Bond Purchase Agreement, and the assignment and delivery of the Series 2006 Note, required by the Constitution or other laws of the State, to happen, exist and be performed precedent to the passage hereof, and precedent to the issuance, sale and delivery of the Series 2006 Bonds, to the execution and delivery of the Loan Agreement, the Indenture, the Bond Purchase Agreement, and the assignment and delivery of the Series 2006 Note, have either happened, exist and have been performed as so required or will have happened, will exist and will have been performed prior to such execution and delivery. ' ' SECTION 19. COMPLIANCE WITH CHAPTER 218, PART III, FLORIDA STATUTES. The Issuer hereby approves and authorizes the completion, execution and filing with the Division of Bond Finance, Department of General Services of the State of Florida, at the expense of the Borrower, of Bond Information Form BF 2003, and any other acts as may be necessary to comply with Chapter 218, Part III, Florida Statutes, as amended. SECTION 20. GENERAL AUTHORITY. The commissioners, officials, attorneys, engineers or other agents or employees of the Issuer are hereby authorized to do all acts and things required of them by this Resolution, the Series 2006 Bonds, the Loan Agreement, the Indenture, the Bond Purchase Agreement, and the assignment of the Series 2006 Note, and to do all acts and things which are desirable and consistent with the requirements hereof or of the Series 2006 Bonds, the Loan Agreement, the Indenture, and the assignment of the Series 2006 Note, for the full, punctual and complete performance of all the terms, covenants and agreements contained hereir. or in the Series 2006 Bonds, the Loan Agreement, the Indenture, and the assignment of the Series 2006 Note. SECTION 21. THIS RESOLUTION CONSTITUTES A CONTRACT. The Issuer covenants and agrees that this Resolution shall constitute a contract between the Issuer and the owners from time to time of the Series 2006 Bonds, and that all covenants and agreements set forth herein and in the Series 2006 Bonds, the Loan Agreement, the Indenture, the Bond Purchase Agreement, and the assignment of the Series 2006 Note, to be performed by the Issuer shall be for the equal and ratable benefit and security of the owners from time to time of the Series 2006 Bonds, the Series 1999 Bonds and any Additional Bonds, without privilege, priority or distinction as to lien or otherwise of any of the Bonds over any other of the Bonds. SECTION 22. SEVERABILITY OF INVALID PROVISIONS. If any one or more of the covenants, agreements or provisions herein contained shall be held contrary to any express provisions of law or contrary to the Credit Facility of express law, though not expressly prohibited, or against public Credit Facility, or shall for any reason whatsoever be held invalid, RESOLUTION NO. 06-18 12 then such covenants, agreements or provisions shall be null and void and shall be deemed separable from the remaining covenants, agreements or provisions, and shall in no way affect the validity of any of the other provisions hereof or of the Series 2006 Bonds issued under the Indenture. SECTION 23. REPEALING CLAUSE. All parts of the Inducement Resolution and other agreements contemplated thereby not in conflict with the provisions herein contained are hereby reaffirmed. All resolutions or parts thereof in conflict herewith, to the extent of such conflict, are hereby superseded and repealed. RESOLUTION NO. 06-18 13 SECTION 24. EFFECTIVE DATE. This Resolution shall take effect immediately upon its adoption. PASSED AND ADOPTED this 11th day of December, 2006. (OFFICIAL SEAL) ATTEST: ~~~~ ~~~ City Clerk CITY OF ATLANTIC BEACH, FLORIDA By. Mayor APPROVED AS TO FORM AND CORRECTNESS: RESOLUTION NO. 06-18 14 EXHIBIT LIST Exhibit A -Trust Indenture Exhibit B -Loan Agreement Exhibit C -Specimen Credit Facility Exhibit D -Bond Purchase Agreement Exhibit E -Official Statement RESOLUTION NO. 06-18 15 EXHIBIT A TRU5T INDENTURE EXHIBIT B LOAN AGREEMENT EXHIBIT C SPECIMEN CREDIT FACILITY EXHIBIT D BOND PURCHASE AGREEMENT EXHIBIT E OFFICIAL STATEMENT