96-21909 RESO
RESOLUTION NO. 96-21909
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE' CITY OF MJ:AMI BEACH, FLORIDA,
AUTHORIZING THE CITY OF MIAMI BEACH, FLORIDA,
TO ENTER INTO AN ADDITIONAL SWAP TRANSACTION
PURSUANT TO THAT CERTAIN ISDA MASTER AGREEMENT
DATED AS OF MARCH 1, 1995, ENTERED INTO
BETWEEN THE CITY AND MORGAN STANLEY CAPITAL
SERVICES INC. ; APPROVING THE FORM AND
AUTHORIZING THB EXECUTION OF A CONFIRMATION
WITH RESPECT THERETO; AUTHORIZING THE PAYMENT
OF A COMMITMENT FEE TO AMBAC INDEMNITY
CORPORATION IN CONNECTION WITH ITS COMMITMENT
TO ISSUE A MUNICIPAL BOND INSURANCE POLICY AND
CERTAIN StJRBTY BONDS; AUTHORIZING RELATED
ACTIONS; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, on March 1, 1995,. the City of ~ami Beach, Florida
(the "City"), issued its $57,710,000 City of Miami Beach, Florida,
Taxable Special Obligation Bonds (Pension Funding Project), Series
~994 (the "Bonds"), under the provisions of Resolution No. 94-21~ 70
adopted by the Mayor and City Commission of the City on May 18,
1994, as supplemented and amended (collectively, the "Resolution") ;
and
WHEREAS, on March 1, 1995, in connection with the issuance of
the Bonds and as provided in the Resolution, the City and Morgan
Stanley Capital Services Inc. (the "Swap Provider") entered into
that certain ISDA Master Agreement and SChedule to the Master
Agreement (COllectively, the "Swap Agreement") and pursuant to the
Swap Agreement, on such date, said parties entered into a
TranSaction (as defined in the Swap Agreement) evidenced by that
certain Confirmation to the ISDA Master Agreement dated as of March
1, 1995; and.
WHEREAS, the City and the Swap Provider wish to enter into an
additional Transaction (the "1996 Swap Transaction") under the
provisions of the Swap Agreement, as such provisions may be amended
or modified by the terms of the Confirmation (as defined be~ow);
and
WHEREAS, under the 1996 Swap Transaction, the City will sell
to the Swap Provider an option co enter into a swap transaction
with the City on September 1, 2005 (such swap transaction referred
to as the "Related Swap Transaction"), and will receive from the
Swap Provider on the date of the sale of such option a premium, all
as more particularly described in the draft form of that certain
Confirmation of the 1996 Swap Transaction attached hereto as
Exhibit "A" and made a part hereof (the "Confirmation"); and
DO~:[04548.DOCS.MIA'80220]RESOLUTION.
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WHEREAS, if the Swap Provider exercises its option under the
~996 S~ap Transaction, then the City will be required to enter into
the Related Swap Transaction on September ~, 2005; and
WHEREAS, if the Swap Provider exercises its option under the
1996 Swap Transaction, it may be financially beneficial for the
City to issue refunding bonds in order to redeem the Bonds in
accordance with their optional redemption provisions (the
"Refunding Bonds"), such issuance of the Refunding Bonds to occur
on or about September 1, 2005; and
WHEREAS, in accordance with the requirements of the Swap
Provider with respect to the 1996 Swap Transaction, AMBAC Indemnity
Corporation ("AMBAC Indemnity") has committed to issue a municipal
bond insurance policy and a debt service reserve surety bond
insuring the payment of principal of and interest on the Refunding
Bonds and a swap surety bond guaranteeing certain of the City's
payment obligations under the 1996 Swap Transaction, all as
contained in the AMBAC Indemnity commitments attached hereto as
Exhibit liB" and made a part hereof (collectively, the "AMBAC
Commitment"); and
WHEREAS, the Mayor and the City Commission have decided, based
upon the recommendations of the City's Finance Director and
Rauscher Pierce Refsnes, Inc., the City's Financial Advisor, to
authorize the City to enter into the 1996 Swap Transaction
(including the Related Swap Transaction) and to pay the commitment
ree due with respect to the AMBAC Commitment; and
WHEREAS, the premium that the City anticipates receiving by
entering - ineo the 1996 Swap Transaction is discussed in the
Commission Memorandum which is attached hereto as Exhibit "C" and
incorporated herein.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA:
SECTION ~. The City is hereby authorized to enter into the
~99ei Swap Transaction under the provisions of the Swap Agreement as
such provisions may be amended or modified by the ter.ms of the
Conf1rmation. The Confirmation in the draft form attached hereto
as Exhibit "An is hereby approved and the Mayor is hereby
authorized and directed to execute the Confirmation in
substantially such form, subj ect to such changes, insertions,
omissions and such filling-in of blanks therein as may be
recommended by the Finance Director and the Financial Advisor, and
approved by the City Attorney. The execution and delivery by the
Mayor of the Confirmation shall be conclusive evidence of the
approval by the City of the ~996 Swap Transaction (inclUding the
Related Swap Transaction) and of any changes, insertions, omissions
and filling-in of blanks in the Confirmation.
SECTION 2. The City hereby authorizes and directs the
payment of the commitment fee to AMBAC Indemnity in connection with
the AMBAC Commitment as set forth in Exhibit liB" hereto.
009: [04548.DOCS.HIA180Z20lRESOLUTION.
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SECTION 3. The Mayor, the City Manager, the Finance
Director, the City Attorney and such other officers~ employees and
staff of the City as may be designated by the Mayor and the City
Manager or either of them are each designated as agents of the City
in connection with the 1996 Swap Transaction and the AMBAC
Commitment and are authorized and empowered, co~lect:ively or
individually, to take all action and steps and to execute all
instruments, documents and contracts on behalf of the City, that
are necessary or desirable in connection with the ~996 Swap
Transaction and the AMBAC Commitment and whiCh are not inconsistent
with the terms and provisions of this Resolution.
SECTION 4. This Resolution shall take effect immediately
upon its adoption.
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City Clerk
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PASSED AND ADOPTED this
(SEAL)
Att.est.:
fOF?M APPROVED
LEGA~ J9fPJ,
By1#~
Date 3 --.)-Y'J(
DD9:[04548.DOCS.MIA180ZZ0lRESOlUTION.
3
INctJJObCY AHD SIGN'A'l'DRE CBRTIi"ICATB
I, Robert Parcher, the undersigned City Clerk of the City of
~ami Beach, Florida (the nCityn), DO HEREBY CERTIFY as follows:
J.. I am the qualified, duly appointed City Clerk of the City
and as such am familiar with the books, resolutions, budget and
records of the City.
2. The persons named below are, on the date hereof. the duly
qualified off~cers of the City and the signatures appearing at the
right of their respective names are the genu~ne signatures of said
officers:
Title
liAm.e.
Mayor
Seymour Gelber
Finance Director
Robert J. Nachl~nger
City Attorney
MUrray H. Dubbin
3. ~l proceedings of the City Commission and of the City
relating to the authorization, execution and delivery of that
certain ISDA Master Agreement and SChedule to the Master Agreement,
each dated as of March J., 1995, between the City and Morgan Stanley
Capital Services Inc. (nMScsn) and that certain Confirmation dated
March 26, J.996 (the nConfirmation") between the City and MSCS,
including the adopcion of Resolutions No. 94-21170 adopted on May
18, 1994, No. 94-21390 adopted on NOVember 2, 1994, No. 95-21487
adopted on February 1, J.995 and No. 96-2J.909 adopted on March 6,
1996, are as of this date, in full force and effect as taken or
adopted without any modification or change whatever, other than any
modifications. or changes effected through the above resolutions.
4. Seymour Gelber, Mayor, has caused the Confirmation to be
executed by his signature and said Seymour Gelber was on the date
his signature was affixed on said Confirmation and is now the duly
electea and qualified Mayor of the City.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
hereto the corporate seal of the City this 26th day of March, J.996.
CITY OF MIAMI BEACH, FLORIDA
(SEAL)
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1\ (.' (Cl.l i3 U tee c el,,-_
ROBER.T PARCHER
City Clerk
. _M._., .__ _.. .____
fORM APPROVEO
~~y1f~
Date ~"'.2-1-16
Ixl9:{OO4I_I>ocs.MJAll102.2O)~T_INC'UMBBNCY
DATE:
TO:
FebmaryMarcQ _, 1996
FROM:
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City of Miami Beach !
1700 Convention Center Drive!
Miami Beach, Florida 33139 i
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Attn: , Finance Director
Tel: (305) 673-7466
Fax: (305) 673-7795 ;
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Morgan Stanley Capital servic~ Inc.
SUBJECT: SWAP TRANSACTION
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The purpose of this letter agreement is to set forth the tenDS and conditions of the
Transaction entered into on the Trade natd. referred to below (the .. Swap Transaction")
between City of Miami Beach, Florida (the .City") and Morgan Stanley Capital Services Inc.
("MSCS") (guaranteed by Morgan Stanley G~up Inc.). This letter agreement constitntes a
"Confirmation" as referred to in the Swap A~ment specified below.
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1. This Confirmation is subject to and incorporates the 1991 ISDA Definitions published
by the International Swaps and Derivatives I Association, Inc. (the "Definitions"). This
Confirmation supplements, forms a part of 8nd is subject to the ISDA Master Agreement
between the City and MSCS dated as of M~h 1, 1995 that (i) incorporates the Definitions
(whether directly or by means of a ConflnDation) and (ll) sets forth general terms and
conditions applicable to interest rate swap ~actions between us (the "Swap Agreement").
All provisions contained in. or incorporated I by reference to, such Swap Agreement shall
govern this Confirmation except as expressly modified below.
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2. The particular Swap Transaction to w~ch this Confirmation relates is an Option, the
terms of which are as follows: i
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I [March _, 1996].
I City.
Dear
Trade Date:
Seller:
Buyer:
MSCS.
[Usn 2,000,000].
Premium:
Premium Payment Date:
Two Business Days after the Trade Date.
IfIIRMANNIC:\IIOCS0I'IiN\/IlYU81~.0I
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(b)
Swap Insurance Policy. j
i. .
Failure of AMBAC to issue the Swap:Insm:ance Policy on the EtIective Date in form
and substance acceptable to MSC~ shall not constitute an Event of Default with respect
to the City unless such failure is caused by. any act or omission of. or failure to meet
any condition by, the City (whether with respect to the Commitment for Municipal
Bond Insurance attached hereto ~ Exhibit A. the Swap Insurance Commitment, or
otherwise). i .
In the event AMBAC does ~ot so issue the Swap Insurance Policy for any reason other
than those set forth in the precerllng paragraph, the City shall use its best efforts to
obtain a replacement swap iIlsuranPe policy in form and substance acceptable to MSCS
from an insurer or other party ~table to MSCS (and (i) any such replacement swap
insurance policy shall be a Credit S1ip~rt Document under the Swap Agreement (other
than for purposes of Section 5(a)(ID.)(2)) and: (ll) all references to the "Swap Insurance
Policy" in this Confirmation shaI be. n~ed to be references to such replacement
sw~p insurance policy~. If the Ci~ is ~le to so obtain a replacement swap insurance
polley by the Effective Date, the. City shall pay to MSCS usn on
September 1, 2005 (such amoWJiS to be netted against the amOUDl: payable by MSCS in
connection with its exercise of the pPuon), and the City shall not be required to deliver
the legal opinion specified in Para~ph. 4(c)(iii) of this Confinnation.
For purposes of this Transaction, .~~ Surety. Provider shall not be considered a Credit
Support Provider of the City. I : Notwithstanding any other provision of this
Confirmation, the Swap Insurance ~o~tment and Swap Insurance Policy shall not be
Credit Support Documents for PurP.oses: of Section 5(a)(iii)(2).
(c) Additional Representations.
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Part 4(t)(v) of the Schedule to the Swap Agreement shall not apply to the City with
respect to this Transaction. .
(d)
Rights of Surety Provider. ;
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MSCS and the City agree that the ~UfCo/ Provider is a third party beneficiary under the
Swap Agreement entitled to enforce. its rights as specified herein and as subrogee of
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MSCS to the extent of any paymentS made - by the Surety Provider UDder the Swap
Insurance Policy.
No modif1Cation or waiver in respect of the Swap Agreement will be effective unless
consented to in writing by the Suretf PrOvider.
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Right to Terminate Following Eve, of Def~t. "
Prior to the oCCU1Tence of an Adverse S~. Event, MSCS may not>> Without the pnor
written consent of the Surety Pro~iderJ and: shall, upon the written direction of the
Surety Provider, designate an Ear1t ffehni.nap.on Date pursuant to Section 6(a) of the
Swap Agreement in respect of any Event of Default. The foregoing sentence shall not
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(e)
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(t)
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constitute a waiver of any such Event of Default or MSCS's rights under the Swap
Agr~f!nt but rather an a~ b~: MS to forbear in the exercise of its rights
prior to the occurrence of an Adver~e . Event. .
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The City may. at its sole discretion, desi~ an Early Termination Date pursuant to
Section 6(a) of the Swap Agreement -in -rel.J,cct of any Event of Default; provided)
however, that if as a result of such ~i~on the City would be required to make a
payment to MSCS pursuant to S~on! 6(e) lof the Swap Agreement, the City shall be
required to obtain the prior written cons~' of the Surety Provider to designate such
Early Termination Date unless the! total aIb.ount of Gcncral Fund NOD Ad-Valorem
Funds (as defined in City Resolutioq N~. 9421390 adopted November 2, 1994) for the
prior fiscal year were at least two (2.()(}) ~..;; maximum annu1l1 debt service on all
debt obligations (Including a1l1oJilg-tter1n ~ obligations appearing on the City's
most recent audited finSln~ swemems andt payment required to be made to MSCS
pursuant to such designation) s~ by . r payable from all or a portion of the
General Fund Non Ad-Valorem FJoos (co cctively. the "Debt'); provided, further,
that to the extent any portion of: stich! Deb~l: is primarily secured by or payable from
sources other than General Fumr~n:Ad- .aIorem Funds (-Other Sources") and for
the prior fiscal year such Other sourbes eel at least 1.50 times the mllri~um
annual debt service on such portioh dt ~. Debt, computed in accordance with the
requirements of the documents uDdFr }vhicli. such portion of the Debt was issued or
incwred. then such portion of !be Debt ilhaU r be ~ as Debt hen:uoder.
The City &II) &pea die wfttteR ~9Il ~ the SlImty ~~Ii4ef, desigBate &B Early
~ IlB.te plUSUaBt tB SeetieB ~(il) JH the SW&p .\peemeBt is Hspeet sf allY
EleBl af Defallk. . I: f
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Right to Tenninate Following T~~on E. CDt.
Prior to the occurrence of an Adve* ~t}j. Event, MSCS may not, without the prior
written consent of the Surety Provideli. ~_ shall, upon the written direction of the
Surety Provider, designate an Earlyl T~on Date pursuant to Section 6(b} of the
Swap Agreement in respect of anN lI'eijminatwn Event. The foregoing sen1P-nt'.e shall
DOt constitute a waiver of any sUch 1eIIDUlation Event or MSCS's rights under the
Swap Agreemem but rather an a~ :by MSCS to forbear in the exercise of its
rights prior to the occurrence of an. .MvFse $urcty Event.
The.~ may, at its SOlediscreti.b14~ an Early T~i!'>n Date ~ to
Section 6(b) of the Swap Agrccmedt 11) respect of any Termmation Evcm; proVIded.
however, that if as a result of such &s~gnation (othct' than a designation in respect of
(i) the additional Termination Event ~cri d in Party- 1(k) of the Schedule to the I
Swap Agreement and (n) the Man<<tatbryj Earl Termination descnl>ed in Paragraph 3 of
this Confirmation) the City would ~ 1 I .: to make a payment to MSCS pursuant to
Section 6(e) of the Swap AgreenieIh, .the .aty sball be required to obtain the prior
written consent of the SUrety Provi~ tb . te such Early Termination Date unless
the total amount of General Fttnd ~on: -ValOICID. Funds (as def"med in City
Resolution No. 94-21390 adopted Nbvember 2, 1994) for the prior fiscal year were at
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(g)
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least twO (2.00) times the maxilmjm i an~ ~bt service on all debt obligations
(including all long-term fiDanC~ o'b~pti~ns appearing on the City's most recent
audited finanCial statements and the ~a~cnt required to be made to MSCS pursuant to
such designation) secured by or p~abl~ froIn all or a portion of the General Fund Non
Ad-Valorem Funds (collectively, ~I "lJ)ebtj); provided, further, that to the extent any
portion of such Debt is PrimariJl~Y . by or payable from sources other than
General Fund Non Ad-Valorem' ("Other Sources") and for the prior fiscal year
such Other Sources equaled at 1 I 1 0 times the maximum a1IDll~l debt service on
such portion of the Debt, ~utcd in iaccordanCe with the requirements of the
do~ents under which such P?rr9n: pf ~ Debt was issued or incurred, then such
portIon of the Debt shall not be m:mrhidcd! as Debt hereunder.
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TIle Clt)' ~lla1lJ 1I11eB the '>>fitteR ~8B: ef the S\1rety PI: , J
~.;;....... ts ~'fi(ltj ef lke Swap ~ ~:::- ef~
TeHBiBatiaB ~vent. . I
Isolation of Transaction in DesiW'''fi!ng an ~lY Termination Date.
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Notwit:hstaDdine; Section 6 of ~ I s,Va.p I Agreement, any designation of an Early
Termination Date in respect of thiS Tralnsaetion by MSCS or the City at the direction of
the Surety Provider or with the qo~+ of the ~ty Provider pursuant to Paragraph
5(e) or S(f) of this Confirmationj shaU apply, only to this Transaction and not to any
other Transaction under the Swap, A~, unless MSCS or the City shall designate
an Early Termination Date in ~eht of sUch other Transaction. Nothing co~ined in
this Paragraph 5(g) shall atIect tt~ts of MSCS or the City under the SWap
Agreement to designate an Early ~ I ,.. I. OD Date in respect of any Transaction other
than this Transaction, which deSi~onl shall not apply to this Tnnsaction unless
expressly provided in such dcsiPaqon ~ unless the Surety Provider shall have
designated, or consented to tbb ~igml,tion by MSCS or the City of. an Early
Termination Date in respect of this ': . ction in accordance with Paragraph See) or
S(t) of this Confirmation. I
Collateral Provisions. : I
If the rating issued by S&P ~ ~'S with respect to the long-te~ unsecured,
unsubordinat.ed debt obligations cpf MSCS~ Credit Support Provider is either (i) revised
downward to or below -BBB-tj br~: Baal" by s&P or Moody's respectively or (ii)
withdrawn, then MSCS sball iPf.Ojvi: ~Uateral (x) in the form of negotiable debt
obligations of any mamrity is~ by United States Treasury Department and (y) in
an amount, determined on a weeklY basis~ equal to 102% of the amount determined as
though ~1) an Early Term;n:tJD"'l' bad been cIesigDaled in respect of this
Transaction as a result of a 'Ii . on Event, (2) MSCS Was the Affected Party, (3)
the date of calculation was thr IEhl* T~on Date, md (4) the ~quir~ for
four Reference Market-makcrsiWa$:ni.et bf havmg MSCS make a quota non as if MSCS
was the sole Reference Mar~tl~ ~th respect thereto. Such collateral shall be
administered in accordance wi _ I mn.tually acceptable to the parties and the Surety
Provider. :
(h)
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EXHIBIT "A"
DATE: March _, 1996
TO: City of Miami Beach
1700 Convention Center Drive
Miami Beach. Florida 33139
Attn: . Finance Director
Tel: (305) 673-7466
Fax: (305) 673-7795
FROM: Morgan StaDley Capital Services Inc.
SUBJECT: SWAP TRANSACTION
Dear
The purpose of this letter agreement is to set forth the termS and conditions of the
Transaction entered into on the Trade Date referred to below (the "Swap Tnmsaction")
between City of Miami Beach, Florida (the t6City") and Morgan Stanley Capital Services Inc.
("MSCS") <.guaranteed by Morgan Stanley Group IDe.). This letter agreement constituteS a
"Confimmtion" as referred to in the Swap Agreement specified below.
1. This Confirmation is subject to and incorporates the 1991 ISDA Definitions published
by the International Swaps and Derivatives Association. Inc. (the "Definitions"). This
Conf11'I1Ultion supplements. forms a part of and is subject to the ISDA Master Agreement
between the City and MSCS dated as of March I, 1995 that (i) incorporates the Definitions
(whether directly or by means of a Confirmation) and (ii) sets forth general termS and
conditioDs applicable to intereSt rate swap tranSactions between us (the "Swap AgreemP-nt").
All provisions contained in. or incorporated by reference tOt such Swap Agreement shall
govem this confirmation except as expressly modified below.
2. The particular Swap Transaction to which this Confumation relates is an Option, the
tenDS ofwbich are as follows:
Trade Date:
[March _, 1996].
Premium:
City.
MSCS.
[USD 2,000,000].
Seller:
Buyer:
Premium Payment Date:
Two Business Days after the Trade Date.
~C:\DOCSOPl!N\NYUBI'~'OI
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Procedure for Exercise -
If MSCS delivers a Notice of Exercise during
the Exercise Period, MSCS will make a
payment to the City of [USD 1.628,140] on
Scpte1Dber 1, 2005.
European Option.
[August 1, 2005], between 9 a.m. and 5 p.m.
New York City time.
3. The particular terms of the Related Swap Transaction to which the Option relates are as
follows:
Exercise Terms:
Option Style:
Exercise Period:
Effective Date: September 1. 2005
Termination Date: September I, 2021
Notional Amount: September 1, 2005 usn 42,255,000
September I, 2006 40,875,000
September 1, 2007 39.380,000
September 1, 2008 37,755,000
September 1. 2009 35,990,000
September 1. 2010 34,075,000
September I, 2011 31,995,000
September 1, 2012 29,740,000
September 1, 2013 27,100,000
September 1, 2014 24,230,000
September 1, 2015 21,130,000
September 1, 2016 17,780,000
September 1, 2017 14.130,000
September 1. 2018 10,180,000
September 1,2019 5,930,000
September I, 2020 1,380,000
Fixed AmountS -
Fixed Rate
Payor: City.
Fixed Rate
Payment Dates: September 1, December 1, March 1, and June
I, commencing with Septen1ber I, 2005.
Fixed Rate: [8.27%].
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Fixed Rate Day
Count Fraction:
Floating Amounts -
Floating Rate
Payor:
Floating Rate
Payment Dates:
Floating Rate Option:
DesigD~tt"-d Maturity:
Spread:
Floating Rate
Day Count
Fraction:
Floating Rate
Reset Dates:
Compounding:
Mandatory Early Tennination:
30/360.
MSCS.
September 1. December 1, March 1, and June
1. commencing with September 1, 200S.
USD-LIBOR-LIBO.
3 months.
None.
Actual/360.
September 1, December 1, March 1. and June
1, commencing with September 1. 200S.
Inapplicable.
Notwithstanding the Termination Date. this
Swap Transaction shall termin~te on
September 1. 2005 (which shall be tbe Early
Termination Date); provided, however. that
such termination shall not occur if on or prior
to such date the City (i) informs MSCS in
writing that the City does not want such
termination to take place. (ii) delivers a
resolution of the City Commission ratifying
the Related SWap Transaction, and (ill)
delivers to MSCS the documents set forth in
Paragraph 4(c) of this Confirmation -(unless.
with respect to the Swap Insurance Policy (as
defined herein) and the legal opinion in
respect thereof, delivery thereof has been
excused in accordance with the provisions of
Paragraph 5(b) of this Confirmation, and any
payments due from the City under Paragraph
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S(b) of this Continuation have been made).
Payments due in respect of such termination
shall be calculated as though an Additional
Termination Event bad occurred with the City
as the sole Affected Party and,
notwithstanding the definition of .. Affected
Transaction" in the Swap Agreement, as
though this Swap Transaction Was the sole
Affected Transaction.
Calculation Agent:
MSCS.
Business Days:
New York.
Governing Law:
New York.
Documentation:
The Swap Agreement.
The Guarantee of Morgan Stanley Group Inc.
provided by MSCS. AMBAC I~de"'nity
Corporation ('" AMBAC") CommitTQent for
Surety Bond for Swap Agreement. provided
by the City (the "Swap Insurance
Commitment'"), and, on the Effective Date,
Surety Bond of AMBAC relating to the Swap
Agreement, provided by the City (the "Swap
Insurance Policy").
Credit SUpport Documents:
Payment Instructions
for the City:
[please provide].
Morgan Guaranty Trost Company of New
York Account of Morgan Stanley Capital
Services Inc. Account Number: 043-73-340.
Payment Instructions
for MSCS:
4. Documents to be delivered.
(a) Upon execution of this Confirmation, MSCS shall deliver to the City the following
documents:
(i) A signature book or secretary's certificate and incumbency certificate for MSCS
reasonably satisfactory in form and substance to the City.
(b) Upon execution of this Confirmation. the City shall deliver to MSCS the fOllowing
documents:
(i) A signature book or secretary's certificate and incumbency certificate for the
City reasonably satisfactory in form and substance to MSCS.
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(ii) Certified copies of the current investment policies and guidelines of the City.
(ill) Rcsolution(s) (in form and substance acceptable to MSCS) authorizing the City
to enter into this Swap Transaction and execute this Confirmation.
(iv) Legal opinion of counsel in form and substance acceptable to MSCS.
(v) Swap Insurance Commitment in form and substance acceptable to MSCS.
(vi) Legal opinion with respect to Swap Insurance Commitment in form and
substance acceptable to MSCS.
(c) On the Effective Date (unless this Swap Transaction shall have terminated on or prior
to SUch date). in addition to the documents required under the Swap Agreement, the City shall
deliver to MSCS the following documents:
(i) Legal opinion of counsel in fonn and substance acceptable to MSCS.
(ii) Swap Insurance Policy in fOIm and substance acceptable to MSCS.
(ill) Legal opinion with respect to Swap Insurance Policy in form and substance
acceptable to MSCS.
(d) All documents delivered upon execution of this Confirmation (excluding legal opinions)
shall be covered by the Section 3(d) representation of the Swap Agreement.
s. Additional Provisions
(a) Definitions.
.. Adverse Surety Event" means that any of the following events has OCCUII'ed:
(i) the Surety Provider fails to comply with or pcrfoIm any agreement or
obligation to be complied with or performed by it in accordance with the
Swap Insurance Policy if such failure is continUing after any applicable
grace period bas elapsed; or
(ii) the expiration or termination of the Swap Insurance Policy or the ceasing
of the Swap Insurance Policy to be in full force and effect (in either case
other than in accordance with its terms) prior to the satisfaction of all
obligations of the City under the Swap Agreement without the written
consent ofMSCS; or
(ill) the Surety Provider repudiates. or challenges the validity of, the Swap
Insurance Policy; or
-5-
(iv) the Surety Provider:-
(1) is dissolved (other than pursuant to a consolidation, amalgamati.o~,
or merger);
(2) becomes insolvent or is unable to pay its debts or fails or admits in
writing its inability generally to pay its debts as they become due;
(3) makes a general assigJ1ment, arrangement or COmposition with or
for the benefit of its creditors;
(4) institutes or has instituted against it a pIlJClY'Aing s~king a
judgment of insolvency or bankruptcy or any other relief under any
bankruptcy or insolvency law or other similar law affecting
creditors' rights, or a petition is presented for the windjng-up or
liquidation of it, and. in the case of any such proceeding or petition
instituted or presented against it., such pl'OCJ"<<Jing or petition (A)
results in a judgment of insolvency or bankruptcy or the entry of an
order for relicf or the maldne of an order for the winding-up or
liquidation of it or (8) is not dismissed, discharged, stayed or
restrained, in each case within 30 days of the institution or
presentation thereof; ,
(5) bas a resolution passed by its board of directors for its winding-up,
official management or liquidation (other than pursuant to a
consolidation, amalgamation or merger);
(6) seeks or becomes subject to the appointm~1\t of an administrator,
provisional liquidator, conservator, receiver, trustee, custodian or
other similar official for it or for all or substantially all of its
assets ;
(7) has a secured party take possession of all or substanti911y all its
assets or a distress, execution, a~ehmeut. sequestration or other
legal process levied, cnfon:ed or sued, on or against aU or
substantially all its assets and such secured party m:';11flIius
possession. or such process is not dismissed, discharged, stayed or
restrained, in each case within 30 days thereafter;
(8) causes or is subject to any event with :respect to it which, under the
applicable laws of any jurisdiction. has an analogous effect to any
of the events specified in clauses (1) to (7) (inclusive); or
(9) takes, through its board of directors or any officer of the Surety
Provider authorized to take such action, any action in furtherance
of, or indicating its consent to, approval of, acquiescence in, any
of the foregoing acts; or
~-
(v) the Surety Provider consolidates or amalgamates with, or merges with or
into, or transfers all or subsranti~Hy all its assets to, another entity and,
at the time of such consolidation. amalgamation, merger, or transfer, the
resulting, surviving or transferee entity fails to assume all the obligations
of the Surety Provider under the Swap Insurance Policy by operation of
law or pursuant to an agreement reasonably satisfactory to MSCS; or
(vi) the Surety Provider consolidates or amalgamates with, or merges with or
into, or tIansfers all or substantially all its assets to, another entity and
such action does not constitute an event described in clause (v) of this
definition but the creditworthiness of the resulting. surviving or
transferee entity is materially weaker than that of the Surety Provider
immediately prior to such action (and, for purposes of this clause (vi).
"materially weaker" shall mean that the resulting entity's rating issued
by S&P or Moody's with respect to its claims-paying ability is either (i)
below "BBB+" or "Baal" by S&P or Moody's respectively or (ll)
withdrawn); or
(vii) the rating issued by S&P or Moody's with respect to the claims-paying
ability of the Surety Provider is either (i) revised downward to or below
"BBB+" or "Baal" by S&P or Moody's respectively or (ii) withdrawn.
"Authorizing Law" means, in addition to the definition specified in the Swap
Agreement, the City's Resolution No. , duly adopted by the City Commission
of the City on , 1996.
"Bonds" means, in addition to any other bonds, notes, certificates or other
indebtedness or securities so identified in accordance with the Swap Agreement, the
City's Taxable Special Obligation Bonds, Series 2005.
"Covered Agreement" means in addition to any other agreement so designated in
accordance with the Swap Agreement, Resolutions No. 94-21170, adopted May 18,
1994, No. 94-21390. adopted November 2, 1994, and No. 95-21487, adopted February
1, 1995; provided. however, that upon issuance of the Bonds, "Covered Agreement"
shalI mean [the resolutlons(s) of the City Commission authorizing the issuance of the
Bonds]. The Covered Agreement shall be a Credit Support Document with respect to
the City.
"SUrety Provider" means AMBAC, or, if AMBAC does not issue the Swap Insurance
Policy. any third party providing a replacement swap insurance policy in accordance
with the provisions of Paragraph 5(b) of this Confirmation.
The Related Swap Transaction shall be a "Bond-Related Transaction'" under the Swap
Agreement.
-7-
(b) Swap Insurance Policy.
Failure of AMBAC to issue the Swap Insurance Policy on the Bffective Date in foz:m
and substance acceptable to MSCS shall not constitute an Evem of Default with respect
to the City unless such failure is caused by any act or omission of, or failure to meet
any condition by, the City (whether with respect to the Commitment for Municipal
Bond Insurance attached hereto as Exhibit A, the Swap Insurance Commitment, or
otherwise) .
In the event AMBAC does not so issue the Swap Insurance Policy for any reason other
than those set forth in the preceding paragraph, the City shall use its best efforts to
obtain a replacement swap insurance policy in form and substance acceptable to MSCS
from an insurer or other party acceptable to MSCS (and (i) any such replacement swap
insurance policy shall be a Credit Support Document under the Swap Agreement (other
than for pmposes of Section 5(a)(ili)(2)) and (ll) all references to the "Swap Insurance
Policy" in this Confumation shall be deemed to be refereuces to such replacement
swap insurance policy). If the City is unable to so obtain a replSl~ swap insurance
policy by the Effective Date, the City sball pay to MSCS usn on
September I, 2005 (such amounts to be netted against the amount payable by MSCS in
connection with its exercise of the Option), and the City shall not be required to deliver
the legal opinion specified in Paragraph 4(c)(iij) of this Confumation.
For purposes of this TraD$action, the Surety Provider shall not be considered a Credit
Support Provider of the City. Notwithstanding any other provision of this
Confirmation, the SWap Insurance Commitment and Swap Insurance Policy shall not be
Credit Support Documents for purposes of Section 5(a)(iii)(2).
(e) Additional Representations.
Part 4(t)(v) of the Schedule to the Swap Agreement shall not apply to the City with
respect to this Transaction.
(d) Rights of Surety Provider.
MSCS and the City agree that the Surety Provider is a third parry beneficiary under the
Swap Agreement entitled to enforce its rights as specified herein and as subrogee of
MSCS to the extent of any payments made by the Surety Provider under the Swap
Insurance Policy.
No modification or waiver in respect of the Swap Agreement will be effective unless
consented to in writing by the Surety Provider.
(e) Right to Terminate Following Event of Default.
Prior to the occurrence of an Adverse SUrety Event, MSCS may not, without the prior
written consent of the Surety Providet', and shaD, upon the written direction of the
Surety Provider, designate an Early Termination Date pursuant to Section 6(a) of the
Swap Agreement in respect of any Event of Default. The foregoing sentence shall not
-8-
constitute a waiver of any such E'VeI1t of Default or MSCS's rights under the Swap
Agreement but rather an agreement by MSCS to forbear in the exercise of its rights
prior to the occurrence of an Adverse SUrety Event.
The City may. at its sole discretion, designate an Early Termination Date pursuant to
Section 6(a) of the Swap Agreement in respect of any Event of Default; provided,
however. that if as a result of such designation the City would be required to make a
payment to MSCS pursuant to Section 6(e) of the Swap Agreement. the City shall be
required to obtain the prior written consent of the Surety Provider to designate such
Early Termination Date unless the total amount of General Fund Non Ad-Valorem
Funds (as defined in City Resolution No. 94-21390 adopted November 2. 1994) for the
prior fiscal year were at least two (2.00) times the maximum anllual debt service on all
debt obligations (mcludiog all long-term financial obligations appearing on the CityJs
most recent audited financial stat.cmems and the payment required to be made to MSCS
pursuant to mch designation) Secured by or payable from all or a portion of the
General Fund Non Ad-Valorem Funds (COllectively, the "Debt"); provided. further.
that to the extent any portion of such Debt is primarily secured by or payable from
sources other tban General Fund Non Ad-Valorem Funds ("Other Sources") and for
the prior fiscal year such Other Sources equaled at least 1.50 times the m~~um
annual debt service on such portion of tbe Debt, computed in accordance with the
requirements of the documems UDder which such portion of the Debt was issued or
incurred, then such portion of the Debt shall not be included as Debt hereunder.
(f) Right to Terminate Following Termination Event.
Prior to the occurrence of an Adverse Surety Event, MSCS may not. without the prior
written consent of the Surety Provider, and shall, upon the written direction of the
Surety Provider. designate an Early Termination Date pursuant to Section 6(b) of the
Swap Agreement in respect of any Termination Event. The foregoing sent.encc shall
not constitute a waiver of any such Termination Event or MSCS's rights UDder the
Swap Agreement but rather an agrcctnent by MSCS to forbear in the exercise of its
rights prior to the occurrence of an Adverse Surety Event.
The City may, at its sole discretion, designate an Early Termination Date pursuant to
Section 6(b) of the SWap Agreemem in respect of any Termination Event; provided,
however, that if as a result of such designation (other than a designation in respect of
(i) the additional Termination Event descnOed in Part 1(k) of the Schedule to the Swap
Agreement and (ll) the Mandatory Early Termination described in Paragraph 3 of this
Confirmation) the City would be required to make a payment to MSCS pursuant to
Section 6(e) of the Swap Agreement, the City shall be required to obtain the prior
written consent of the Surety Provider to designate such Early Tertnin~tion Date unless
the total amount of General Fund Non Ad-Valorem Funds (as defined in City
Resolution No. 94-21390 adopted November 2, 1994) for the prior fiscal year were at
least two (2.00) times the maximum anmlal debt service on all debt obligations
(including aU long-term financial Obligations appearing on the City's most recent
audited financial statements and the payment required to be made to MSCS pursuant to
such designation) secured by or payable from all or a portion of the General Fund Non
-9-
Ad-Valorem Funds (collectively, the "Debt"); provided, further, that to the extent any
portion of such Debt is primarily secured by or payable from sources other than
General Fund Non Ad~Va1orem Funds ("Other Sources") and for the prior f!Scal year
such Other Sources equaled at least 1.50 times the maximum annu::Il debt service on
such portion of the Debt, computed in accordance with the requirements of the
documents under which such portion of the Debt was issued or incurred, then such
portion of the Debt shall not be included as Debt hereunder.
(g) Isolation of Transaction in Designating an Early TermiIVUion Date.
Notwithstanding Section 6 of the Swap Agrcemem, any designation of an Early
Termination Date in respect of this Transaction by MSCS or the City at the ctm:ction of
the Surety Provider or with the consent of the Surety Provider pursuant to Paragraph
5(e) or 5(f) of this CoDfiImation shall apply only to this Transaction and not to any
other Transaction under the Swap Agreement. unless MSCS or the City shall designate
an Early Termination Date in respect of such other Transaction. Nothing contained in
this Paragraph S(g) shall affect the rights of MSCS or the City UDder the Swap
Agreement to designate an Early TemUuation Date in respect of any Transaction other
than this Transaction, which designation shall not apply to this Tnmsaction unless
expressly provided in such designation and unless the Surety Provider shall have
designated, or consented to the designation by MSCS or the City of. an Early
Termination Date in respect of this Transaction in accordance with Paragraph 5(e) or
S(f) of this Confirmation.
(h) Collateral Provisions.
If the rating issued by S&.P or Moody's with respect to the long-term, unsecured.
unsubordiDated debt obligations of MSCS's Credit Support Provider is either (i) revised
downward to or below "BBB + II or "Baal It by S&P or Moody's respectively or (ii)
withdrawn. then MSCS shall provide collateral (x) in the form. of negotiable debt
obligations of any maturity issued by the United States Treasury Department and (y) in
an amount. determined on a weekly basis, equal to 102 % of the amount determined as
though (1) an Early Termination Date had been desigDSltfd in respect of this
Transaction as a result of a Termination Event, (2) MSCS was the AtIected Party. (3)
the date of calculation was the Early Termination Date, and (4) the requirement for
four Reference Market-makers was met by having MSCS make a quotation as if MSCS
was the sole Reference Market-maker with respect thereto. Such collateral shall be
administered in accordance with terms mutnally acceptable to the parties and the Surety
Provider.
(i) No Netting.
(i) Subparagraph (ii) of Section 2(c) will apply to this Transaction.
(ii) Notwithstanding Section 6(e) of the Swap Agreement, the amount
payable under Section 6(e) of the Swap Agreement upon the termination
of this Transaction shall be determined without regard to any other
Transactions under the Swap Agreement. it being the intention of the
-10-
Parties that their paymem obligations under this Transaction be treated
separate and apart from all other Transactions under the Swap
Agreement unless specified in such other Transaction and agreed to. in
writing by the Surety Provider.
(j) No Set-off or Counterclaim.
In no event shall either MSCS or the City be entitled to (i) set-off its payment
obligations in respect of this Transaction against the payment obligations of the other
party (whether by counterclaim or otherwise) other than UDder this Transaction or (ii)
net the payment obligations of the other party other than under this Transaction against
the paymem obligations of such party under this Transaction.
-11-
6. Please confirm that the foregoing correctly sets forth the tenDs of our agreement with
respect to the Swap Transaction by signing in the space provided below and returning the
executed Confirmation to us.
It has been a pleasure working with you on this transaction, and we look forward to
working with you again in the future.
Very truly yours,
Morgan StaDley Capital Services Inc.
By:
Name:
Title:
Agreed & Accepted by:
City of Miami Beach, FIorida
By:
Name:
Title:
-12-
AIIBAC@
EXHIBIT "B" .
.\~mAC Indemniry Corpor;lrion
( lnl.' ~t:ltl.: "itrt:'l.'f J>bZ;1
'\l.'\\ York. '\t:'\\ York 1O()()-I
( 212) h()X-1 )5-1() F;IX: (212) ::'09-1.) 1 t)()
February 9, 1996
Luis Reiter, Esq.
Squire, Sanders & Dempsey
Miami Center, 29th Floor
201 S. Biscayne Boulevard
Miami, FL 33131
RE: Swap Agreement relating to the City of Miami Beach, Florida, Taxable Special Obligation
Bonds, Series 2005, dated September 1, 2005.
Dear Mr. Reiter:
Endosed herewith please find for distribution an original and one certified photocopy of the
Commitment for Surety Bond for Swap Agreement, Commitment Number SWSB13171 (the
"Commitmenf'), relating to the above-captioned Swap. The Commitment has been requested in
connection with the execution and delivery of the Swap and the issuance and delivery of the Bonds
(as defined in the Commitment), and if not exercised, should be disregarded.
It is suggested that the original copy of the Commitment be delivered to or held on behalf of the
Issuer. If further certified photocopies of the Commibnent are required, please notify the Client
Infonnation Services Department of AMBAC Indemnity Corporation rAMBAC Indemnity'').
In addition, attached hereto is a fonn of surety bond to be issued by AMBAC Indemnity (the
"Suretyj.
Should you have any questions regarding these materials, please contact the undersigned.
Additional comments may be given by the AMBAC Indemnity personnel working on this transaction.
All drafts of financing documents, induding but not limited to the Swap, in fonn and content
acceptable to AMBAC, the Official Statement and any legal opinion relating to the execution of the
Swap and issuance of the Bonds, to the extent not already provided, should be submitted for
AMBAC Indemnity review as available but in no event later than five (5) business days prior to
dosing. Please note that bond counsel's approving opinion must be acceptable to AMBAC
'Indemnity and shall be either addressed to AMBAC Indemnity or delivered with a reliance letter
addressed to AMBAC Indemnity.
Please provide a copy of the closing index as soon as practicable. Please note the requirement set
forth in the Commitment for a letter indicating that the financing documents, the Official Statement
(or any similar disclosure doaJment) and the various legal opinionS executed and delivered at
dosing are substantially in the fonns theretofore provided to AMBAC Indemnity for review, with
amendments, modifications or deletions as may have been approved by AMBAC Indemnity. A
dosing transaipt containing, among other things, all such financing documents, the Official
statement (or any similar disclosure document) and legal opinions should be provided as soon after
dosing as practicable.
Sincerely,
AMBAC INDEMNITY CORPORATION
/1)1 ~
Robert M. Sakariassen
Client Information Services
Endosures
cc: Robert J. Nachlinger
Coleman Cordell
Shelly Stein, AMBAC
AMBAC INDEMNITY CORPORATION - COMMITMENT FOR SURETY BOND
FOR SWAP AGREEMENT
Issuer:
City of Miami Beach, Florida
Commitment Number:
SWSB13171
Obligations: Obligations of the Issuer under the Interest
Rate Swap Agreement referred to below
Date of Commitment
Febn.aary 9, 1996
Expiration Date:
Septernber1,2005
AMBAC Indemnity Corporation ("AMBAC" or "AMBAC Indemnityj, A Wisconsin Stock Insurance
Company, hereby commits (the "Commitmenf') to issue a Surety Bond (the "Surety") relating to the
Interest Rate SWap Agreement and the related schedule to be dated September 1, 2005 ("Swap
Agreementj which will to be executed in connection with the City of Miami Beach, Florida Taxable
Special Obligation Bonds, Series 2005, dated September 1, 2005 (The "Bonds' by and between
the Obligor and Morgan Stanley Capital Services, Inc., such surety to be substantially in the form
attached hereto, subject to the terms and conditions contained herein or added hereto (see
conditions set forth herein).
To extend this Commitment after the expiration date set forth above, an oral (subsequently
confirmed in writing) or 'Mitten request for renewal must be submitted to AMBAC at least one
business day prior to such expiration date. AMBAC reserves the right to refuse to grant a renewal
or may renew this Commitment subject to additional terms and conditions.
The Surety shall be issued if the following conditions are satisfied:
1. AMBAC shall receive an opinion of counsel or a certificate of an officer of the Issuer or
ultimate obligor stating that the information supplied to AMBAC in order to obtain the
Surety and the doaJments to be exea.rted and delivered in connection with the issuance
and sale of the Bonds and the execution and delivery of the Swap Agreement do not
contain any untrue or misleading statement of a material fact and do not fail to state a
material fact required to be stated therein or necessary in order to make the information
contained therein not misleading.
2. AU conditions contained in AMBAC's Commitment for Bond Insurance dated February
9,1996, relating to the Bonds (Commitment Number 13168) (the "Commitmenf1, which is
hereby incorporated by reference in its entirety, shall have been fulfilled in their entirety or
waived by AMBAC, in AMBAC's sole disaetion.
3. The Bonds shall have been issued and delivered and AMBAC shall have issued its
Municipal Bond Insurance Policy pursuant to the Commitment
4. The Swap Agreement and a related guarantee from Morgan Stanley Group, Inc. shall be
in full force and effect and the principal amount of the Bonds relating to -the Swap
Agreement shall equal the notional amount of the Swap Agreement
5. No later than five (5) business days prior to the Closing Date, AMBAC shall be provided
with the final Swap Agreement payment schedule.
6. AMBAC shall be an addressee of any legal opinions delivered in connection with the
issuance of the Swap Agreement, the Guarantee of Morgan Stanley Group, Inc. and any
other documents entered into in connection with the execution and delivery of the Swap
Agreement or of reliance letters in connection with such opinions.
7. The Obligor shall provide AMBAC with an opinion, in form acceptable to AMBAC,
respecting the Obligor's authorization to enter into the Swap and respecting the validity
and enforceability of the Swap.
8. Provisions for coIlateralization and "downgrade triggers- respecting Morgan Stanley
Capital Services ("MSCSj shall be acceptable to AMBAC prior to the execution of the
Swaption. .
9. The Swaption and any related Swap Schedule for the Bonds shall provide:
(a) that following the issuance of the Bonds, the Swap shall not be terminated without
the consent of or at the direction of AMBAC. Termination Events respecting AMBAC,
the Obligor and MSCS. following the issuance of the Bonds, shall be acceptable to
AMBAC and shall be agreed upon prior to the execution of the Swaption.
(b) the Swap may not be amended without the written consent of AMBAC.
(c) AMBAC shall be a third party beneficiary under the Swap and shall be entitJed to
enforce its rights thereunder and shall be subrogated to the rights of MSCS to the
extent it makes a payment under the Surety Bond.
(d) that the rights of the parties with respect to the events of termination, netting of the
payment obligations and similar rights which may be applicable to other transactions
under the Swap shall not be applicable to the insured transaCtion contemplated by
this Commitment The insured transaction shall be a separate transaction pursuant to
the Swap.
10. The Swaption shall be in a fann acceptable to AMBAC prior to its execution.
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/' ~/.. :c-
A . Officer
--"
AMBAC INDEMNITY CORPORATION - COMMITMENT FOR SURETY BOND
FOR SWAP AGREEMENT
Issuer:
City of Miami Beach, Rorida
Commitment Number:
SWSB13171
Obligations: Obligations of the Issuer under the Interest
Rate Swap Agreement referred to below
Date of Commitment
Febn.aary 9, 1996
Expiration Date:
September 1, 2005
AMBAC Indemnity Corporation ("AMBAC" or "AMBAC Indemnityj, A WISCOnsin Stock Insurance
Company, hereby commits (the "Commitment") to issue a Surety Bond {the "Suretyj relating to the
Interest Rate SwaP Agreement and the related schedule to be dated September 1. 2005 ("Swap
Agreementj which will to be exearted in connection with the City of Miami Beach. Florida Taxable
Special Obligation Bonds. Series 2005, dated September 1. 2005 (The "Bondsj by and between
the Obligor and Morgan Stanley Capital Services. Inc., such surety to be substantially in the fonn
attached hereto, subject to the terms and conditionS contained herein or added hereto (see
conditions set forth herein).
To extend this Commitment after the expiration date set forth above, an oral (subsequently
confirmed in writing) or written request for renewal must be submitted to AMBAC at least one
business day prior to such expiration date. AMBAC reserves the right to refuse to grant a renewal
or may renew this Commitment subject to additional terms and conditions.
The Surety shall be issued if the following conditions are satisfied:
1. AMBAC shall receive an opinion of counselor a certificate of an officer of the Issuer or
ultimate obligor stating that the information supplied to AMBAC in order to obtain the
Surety and the documents to be exearted and delivered in connection with the issuance
and sale of the Bonds and the execution and delivery of the SwaP Agreement do not
contain any untrue or misleading statement of a material fact and do not fail to state a
material fact required to be stated therein or necessary in order to make the infonnation
contained therein not misleading.
2. All conditions contained in AMBAC's Commitment for Bond Insurance dated February
9.1996. relating to the Bonds (Commitment Number 13168) (the "Commitmenti, which is
hereby incorporated by reference in its entirety, shall have been fulfilled in their entirety or
waived by AMBAC. in AMBAC's sole disaetion.
3. The Bonds shaD have been issued and delivered and AMBAC shall have issued its
Municipal Bond Insurance Policy pursuant to the Commitment
4. The Swap Agreement and a related guarantee from Morgan Stanley Group, Inc. shall be
in full force and effect and the prindpal amount of the Bonds relating to the Swap
Agreement shall equal the notional amount of the SWap Agreement
5. No later than five (5) business days prior to the Closing Date. AMBAC shall be provided
with the final SWap Agreement payment schedule.
6. AMBAC shall be an addressee of any legal opinions delivered in connection with the
issuance of the SWap Agreement, the Guarantee of Morgan Stanley Group, Inc. and any
other documents entered into in connection with the execution and delivery of the Swap
Agreement or of reliance letters in connection with such opinions~
7. The Obligor shall provide AMBAC with an opinion, in fonn acceptable to AMBAC,
respecting the Obligor's authorization to enter into the SWap and respecting the validity
and enforceability of the Swap.
8. Provisions for collateralization and -downgrade triggers- respecting Morgan Stanley
Capital Services ("MSCSj shall be acceptable to AMBAC prior to the execution of the
Swaption.
9. The Swaption and any related Swap Schedule for the Bonds shall provide:
(a) that following the issuance of the Bonds. the Swap shall not be tenninated without
the consent of or at the direction of AMBAC. Tennination Events respecting AM8AC,
the Obligor and MSCS. following the issuance of the Bonds, shall be acceptable to
AM8AC and shall be agreed upon prior to the exea.rtion of the Swaption.
(b) the Swap may not be amended without the written consent of AM8AC.
(c) AMBAC shall be a third party beneficiary under the Swap and shall be entitled to
enforce its rights thereunder and shall be subrogated to the rights of MSCS to the
extent it makes a payment under the Surety Bond.
(d) that the rights of the parties with respect to the events of tennination, netting of the
payment obligations and similar rights which may be applicable to other transactions
under the Swap shall not be applicable to the insured transaction contemplated by
this Commitment The insured transaction shall be a separate transaction pursuant to
the Swap.
10. The Swaption shall be in a form acceptable to AMBAC prior to its execution.
-~~
~4;~ ."-
A~~
AMBAC Indemnity Corpor:1tion
r:lo cr Corporation SyStems
44 East Mifflin Street
Madison. Wisconsin 53703
Administrative Office:
One Stale Street Plaza
New York. New Yone 10004
Telephone: (212) 668-0340
SURETY BOND
FOR SWAP AGREEMENT
Policy No. SW _BE
Effective Date:
AMBAC Indemnity Corporation (n AMBAC"), in consideration of the payment of the premium and subject
to the tenns of this Surety Bond, hereby Wlconditionally and irrevocably guarantees the full and complete
payments of amounts which are "Due for Payment" (as defined below) by or on behalf of [Name of
Obligor] (the "Obligor") under Rate. Swap Transaction No. [ ], governed by the [Interest Rate Swap
Agreement] (the "Agreement"), dated as of ----J 199_ by and between the Obligor and , or its
successors or pennitted assigns (the "Counterparty") to the Counterparty as such payment are Due for
Payment (as defined below) but shall not be so paid in accordance with the tenns of the Agreement and for
which a Demand for Payment in the form attaehed hereto as Attachment I (the "Demand for Payment") has
been presented to AMBAC in accordance with the tenns of this Surety Bond; provided that unless the
Option (as defined below) is exercised by AMBAC, the amount available hereunder for payment pursuant
to anyone Demand for Payment shall not exceed the amount that is Due for Payment (the "Surety Bond
Coverage"); provided further that the Surety Bond Coverage shall never exceed the amount that is Due for
Payment, unless such Demand for Payment is made with respect to an amount that is due from the Obligor
as a result of the designation of an Early Tennination Date (as defined in the Agreement) at the direction of
AMBAC. As used herein. the term "Due for Payment" refers to the amounts that are required to be paid by
the Obligor on each regularly scheduled Payment Date stated in the Agreement, as the same may be reduced
from time to time in accordance with the terms of the Agreement, and does not refer to any amO\D1t that
may be otherwise payable by the Obligor pursuant to the Agreement, including, but not limited to. fees.
expenses or penalty rates. If a Demand for Payment is made under this Surety Bond, AMBAC will
continue to make regularly scheduled payments under the Agreement unless AMBAC elects. at its sole
option, to direct the Counterparty to designate an Early Termination Date on a specified future date (which
election can be made at the time the initial Demand for Payment has been made or at any time thereafter).
If AMBAC so directs the Counterparty to designate an Early Termination Date (the "Option"), AMBAC
will pay to the Counterparty the amount.. if any, due from the Obligor as a result of the designation of such
Early Tennination Date, following the receipt of a Demand for Payment with respect to any such amount
owed.
1. Upon the later of: (i) one (1) day after receipt by the General Counsel of AMBAC of a Demand for
Payment, duly executed by the Counterparty; or (ii) the date prescribed for payment of such amO\D1t under
the tenns of the Agreement as specified in the Demand for Payment presented by the Counterpart)' to the
General Counsel of AMBAC. AMBAC will make a deposit of funds in an account with the Counterparty in
New York, New York. sufficient for the payment to the Counterpart)', of amounts which are then due to the
F_ No._1S.oo1011l931
Counterparty (as specified in the Demand for Payment) but in no case in excess of the Surety Bond
Coverage unless such Demand for Payment is for an amount due from the Obligor as a result of. the
designation of an Early Termination Date at the direction of AMBAC. Such payment shall be made by
AMBAC only upon receipt by AMBAC of an instrument of assignment, in form and substance satisfactory
to AMBAC, duly executed by the Counterparty, transferring to AMBAC all rights under the Agreement to
receive amounts due from the Obligor under the Agreement and in respect of which a Demand for Payment
was made. Mv1BAC shall be subrogated to all of the Counterparty's rights to payment under the Agreement
to the extent of any Surety Bond payments made.
2. Demand for Payment hereunder may be made by telecopy or prepaid telex or telegram of the
executed Demand for Payment c/o the General Counsel of AMBAC. If a Demand for Payment made
hereunder does not, in any instance, conform to the terms and conditions of this Surety Bond, AMBAC
shall give notice to the CounterpartY, as promptly as reasonably practicabl~ that such Demand for Payment
was not effected in accordance with the terms and conditions of this Surety Bond and briefly stating the
reason(s) therefor. Upon being notified that such Demand for Payment was not effected in accordance with
this Surety Bond, the Counterparty may attempt to correct any such nonconforming Demand for Payment if,
and to the extent that, the Counterparty is entitled and able to do so.
3. The amount payable by AMBAC under this Surety Bond on any Payment Date or the date
prescribed for payment of such amount under the terms Qf the Agreement pursuant to a particular Demand
for Payment shall be limited to the Surety Bond Coverage unless such DeJJumd for Payment is with respect
to an amount due from the Obligor as a result of the designation of an Early Tennination Date at the
direction of AMBAC. The Surety Bond Coverage shall be reduced automatically to the extent of each
payment made by AMBAC hereunder in respect of an amount that is Due for Payment. Upon payment in
full by AMBAC to the Counterparty of the amount, if any, due from the Obligor in respect of the exercise
by AMBAC of its Option, AMBAC shall have no further obligation under this Surety Bond.
4. Any service of process on AMBAC may be made to AMBAC or the office of the General Counsel
of AMBAC and such service of process shall be valid and binding as to AMBAC. During the term of its
appoinonent, General Counsel will act as agent for the acceptance of service of process and its offices are
located at One State Street Plaza, New York, New York 10004.
s. This Surety Bond is noncancellable for any reason. The term of this Surety Bond shall expire on
the earliest date on which both (i) the Agreement shall terminate in accordance with the terms thereof, and
(ii) all amounts, if any, due and owing by the Obligor under the Agreement shall have been paid in full. The
premium on this Surety Bond is not refundable for any reason, including early termination of the
Agreement by either AMBAC, the Obligor or the Counterparty. There shall be no acceleration payment
due under the Surety Bond unless such acceleration is at the sole option of AMBAC.
6. This Surety Bond shall be governed by and interpreted under the laws of the State of Wisconsin,
and any suit hereunder seeking specific performance in connection with any amount due hereunder may be
brought only by the Counterpart)' and only within one year after the earlier of (i) the date on which the
applicable Demand for Payment is made pursuant to the terms of this Surety Bond where AMBAC has
failed to make such payment or (ii) the applicable Payment Date.
Form No _ 3-00 I 0 c:rm
2
IN WITNESS WHEREOF, AMBAC has caused this Surety Bond to be signed by its duly authorized
officers in facsimile to become effective as their original signatureS and binding upon AMBAC by virtue of
the countersignature of its duly authorized representative.
Secretary
President
Authorized Representative
F_ No.: :BoOOIO (1193)
3
Attachment 1
Surety Bond No.
DEMAND FOR PAYMENT
, 19
AMBAC Indemnity Corporation
One State Street Plaza
NewYo~NewYork 10004
Attention: General Counsel
Reference is made to the Surety Bond No. _ (the "Surety Bond") issued by AMBAC
Indemnity Corporation (" AMBAC"). The terms which are capitalized herein and not othetWise defmed
have the meanings specified in the Surety Bond unless the context otherwise requires.
The Counterpart)' hereby certifies that:
(a) Payment by the Obligor to the COlDlterparty is due on ~ 19--, in an amount equal to
$ (the" Amount Due").
(b) $ has been paid (or provision for such payment has been made) to the Counterpart)' by
the Obligor under the Agreement, which amount is S less than the Amount Due (the
"Deficiency").
(c) The Counterpart)' has not heretofore made demand under the Surety Bond for the Amount Due
or any portion thereof and the Deficiency is not in excess of the Surety Bond Coverage.
The Counterpart)' hereby requests that payment of the Deficiency be made by AMBAC 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:
[Counterparty's Account]
[or, in the case of an exercise by AMBAC of the Option to designate an Early Termination Date:
(a) Payment to the Counterparty of the Settlement Amount and the Unpaid Amounts (as each such
term is defined in the Agreement) is due on , 19--, in respect of an Early Termination Date so
designated at the direction of AMBAC pursuant to its exercise oftbe Option under the Surety Bond.
(b) The Counterpart)' has not heretofore made demand under the Surety Bond for the Settlement
Amount or the Unpaid Amounts.
The Counterparty hereby requests that payment of the Settlement Amount and the Unpaid Amounts
be made by Arv1BAC 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:
[Counterparty's Account]]
[COUNTERP ARTY]
By:
Its:
Form No : m-oolO (1I'l1)
4
IMBAC@
:\.\IBAC IndL"mnit\. Corporation
( )nL' "t~IlL. ~tn.:L"r Pbz~1
'W\\ Y()r!,;. :"\L"\\" Y()rk \()OO-i
(212) ()()I->-ll5-iO Fax: (212) -)1)l)-l)1l)O
Fel:mwy 9, 1996
Luis Reiter, Esq.
Squire Sanders & Dempsey
Miami Ceotc:r, 29th F100r
201 S. Biscayne Boulevard
Miami. FL 33131
RE: City of Miami Beach, Florida. Taxable Special Obligation Bonds, Series 2005, dated September 1,2005.
Dear Mr. Reiter:
Enclosed please find the original and one certified copy of the Conunitment for Municipal Bond Inswance,
Commitment No, 13168 (the "Commitment"), relating to the above<aptioned obligations (the "Bonds"). The
original of this Commitment should be delivered to or held on behalf of the issuer of the Bonds. and if not exercised.
should be disregarded.
Please DOte the foUowiDg:
1. If this issue of Bonds sells with AMBAC ioswance, please notify JaniDe Feudi at (212) 208-3301, who will
assign a closing a:lOrdinator who will be responsible for the fi.nancing throughout the closing. Enclosed in
AMBACs STANDARD PACKAGE is the bood legend which should appear on the Bonds. The policy
number to be printed as part of the bond legend can be obtained from the closing a:lOrdinator.
2. In order to ensure a timely closing, please notify your closing a:lOrdinalor as soon as possible if you will require
rating letteIS from Fitch Investors Service, L.P., Moody's Investors Service or Standard & Poor's Ratings
Group. If any requests are made of you by any rating agency for documentation regarding this issue or any
related or parity debt issue, please respond promptly since this will facilitate the timely receipt of the rating
letters.
NOTE: ENCLOSED FIND INFORMATION REGARDING MOODY'S RATINGS AND FEES FOR
INSURED ISSUES AND STANDARD & POOR'S RATINGS AND FEES FOR INSURED ISSUES
AND ASSIGNMENT OF INSURER'S CLAlMS-PAYlNG RATINGS TO INSURED ISSUES. (Frtdl
IDveston Senicc, LP., Moody'slDveston Senice aDd Standard & Poor's RadDgs Group assess separate
rating fees which are payable directly to them. All questioas reprdiDg the payment m such fees must be
addresled to the applicable rating ageocy.)
3. Ifrequesu:d. an opinion of AMBACs coonseI regarding the fairness and accuracy of the language included in
the Official Statement descnbing AMBAC and the Policy will be delivered at closing. The delivery of such
opinion is dependent upon the prior review of such official statement by our legal department
4. Enclosed for your use in preparing the Official Statement are (i) a sample Municipal Bond Insurance Policy (the
"Policyj and any applicable endorsements thereto. and (ii) AMBACs STANDARD PACKAGE, which
includes suggested Official Statement disclosure language and the official AMBAC logo.
PIeue scad all dnfts m the Off"lCial Stak'lIV"ftt to AMBAC's CIosiag Departmeat, attention m your closing
coonIiDator. Ra:eipt, by the dosiDg coordinator, m SIX COPIES m the FINAL OFFICIAL STATEMENT will
eIUIUI"e timely preparatioa m AMBAC's Policy for !IIbmissioa to the ratiDg ageDcies.
S. Please n:fi:r to page 2 cKthis Commitment for cxmditions wbich must be ClItidiM prior to AMBACs release of
its Policy. Drafts cK all finsandng doc;wpents and legal opinions sbouId be sr::ot to the closing coordinator
assigoc:d to the finllndng
6. Lastly, 'lWO final UNBOUND traDSCripts must be sr::ot to your closing coordinator u IOOD as possible after
cIoIiDg.
If you have 3D)' questions, please do not hesitate to oontact Janine Feudi or IDe.
Sincerely,
/}jl&
Client Information SeIvices
Enclosures
cc: Robert 1. Nacblinger
FI.D3DCC Director
City of Miami Beach
City Hall
1700 Convention Center Drive
Miami Beach, FL 33139
Coleman Cordell
Morgan Stanley &. Co.
Sun Bank Center
200 South Omnge Avenue
Suite 1440
Orlando, FL 3280 1
Sbelley Stein, AMBAC
Commitment for Municipal Bond Insurance
Issuer:
CITY OF MIAMI BEACH. FLORIDA
Bonds:
Taxable Special Obligation Bonds, Series 2005, dated
September I, 2005, maturing September I, 2006 through
September I, 2021.
AMBAC ladeamity Corporation .
do CT Corporation Systems
44 East Miftlia Street
MadilOD, WlscoDlin 53703
AdmiDistradve ornce:
ODe State Street Plaza
New York, New York 10004
Commitment Number:
13168
Date of Commibnent:
February 9,1996
September 1,2005
Expiratioa Date:
COIDIIlitment Fee: $150,000.00
IDsurance premium: 8.34-/_ of the total
priDcipal ad interest due on the Bonds
(Fitch IDveston Service, LP., Moody's
lavaton Service and Standard 81 Poor's
RatiDgs Group usess separate rating fees
which are payable directly to them. All
questions regarding the payment of such fees
must be addressed to the applicable rating
agency.)
AMBAC Indemnity Corporation (AMBAq A Wisconsin Stock Insurance
Company
hereby commits to issue a Municipal Bond Insurance Policy (the "Policy") relating to the above-dcscribed debt obligations
(the "Bonds"), substantially in the form imprinted in this Commibnent, subject to the terms and conditions contained
herein or added hereto (see conditions set forth on page 2 and following).
To keep this Commibnent in effect after the expiration date set forth above, a request for renewal must be submitted to
AMBAC prior to such expiration date. AMBAC reserves the right to refuse wholly or in part to grant a renewal.
The Mllllidpal Boad In.unace poney .han be issued if the following conditions are satisfied:
I. The documents to be executed and delivered in connection with the issuance and sale of the Bonds shall not contain
any 1Dltrue or misleading stl't--.ent of a material fact and shall not fail to state a material fact necessary in order to
make the information contained therein not misleading.
2. No event sbal1 occur which would permit any purchaser of the Bonds, otherwise required. not to be required to
purcbaae the Bonds OIl the date scheduled for the issuance and delivery thereof.
3. There sbal1 be no material change in or affecting the Bonds (including, without limitation. the security for the
Bonds) or the financing documents or the official statement (or any similar disclosure document) to be executed and
delivered in connc:ctiOll with the issuance and sale of the Bonds from the descriptions thereofberetofore provided to
AMBAC.
4. The Bonds sbal1 contain no reference to AMBAC, the Policy or the municipal bond insunmcc evidenced thereby
except as may be approved by AMBAC.
5. AMBAC sball be provided with:
(a) Executed copies oC all financing documents, the official CIQItl'!lN!llt (or any similar disclosure document) and
the mous legal opinions delivered in connection with the iSSUIIIICC aDd sale oCthe Bonds, including. without
limitatioo. the UDqU8lified approving opinion ofbond couoael rcDdered by a law film acceptable to AMBAC.
The form of Bond CouDsel's approving opinion sball alm indicate, if applicable. that the Bonds are exempt
from fedc:ra1 inl:ome taxation. that the issuer must comply with certain coveaants uodcr and pursuant to the
new tax law and that the issuer bas the legal power to comply with such coveomts. Such opinion of bond
counsel shall be addressed to AMBAC or, in lieu thereof. a letter sba1l be provided to AMBAC to the effect
that AMBAC may rely on such opinion as if it were addressed to AMBAC.
(b) A letter from bond counsel or counsel to the purchaser or otherwise from another person acceptable to
AMBAC to the effect that the financing documents., the official ,...t~d (or any similar disclosure
document) and the moos legal opinions executed and delivered in c:cxmection with the issuance and sale of
the Bonds are substantially in the forms theretofore submitted to AMBAC for review. with only such
amendments, modifications or deletions as approved by AMBAC.
(c) A certified or cashiers check for or evidence of wire transfer oC an amount equal to the insurance premium at
the time of the issuance and delivery of the Bonds. If the amouDt of premium exceeds $100,000.00, payment
must be made by fedc:ra1 funds wire transfer.
6. Unless expressly waived in whole or in part by AMBAC, the financing documents and the Official Statement shall
contain (a) the terms and provisions provided in the AMBAC JpdMnnity STANDARD PACKAGE transmitted
herewith and (b) any additional oral or written provisions or comments submitted by AMBAC.
7. AMBAC shall receive a copy of any insurance policy, surety bond. guaranty or ;uMnmification or any other policy,
contract or agreement which provides for payment of all or any portion of the debt. the costs of reconstruction, the
loss of business income or in any way secures. ensures or enhances the iDc:ome stream anticipated to pay the bonds.
8. Any provisions or requirements oC the Purchase Contract or Bond Purchase Agreement referencing AMBAC must
be sent to the attention of Janine Feudi not less than five (5) business days prior to closing. If such provisions or
requirements are not received within that time, compliance may not be possible.
9. Review and approval by AMBAC at least 5 days prior to closing of the Escrow Agreement for the defeasance of the
applicable Bonds (the "Prior Bonds").
10. At least 5 days prior to closing. AMBAC must receive certification by an accounting film acceptable to AMBAC
that the securities invested are sufficient to pay the Prior Bonds. Upon receipt oCthis commitment AMBAC should
be notified which firm will be providing the certification.
11. Receipt of an opinion of counsel acceptable to AMBAC that the Prior Bonds have been legally defeased.
12. Receipt of an opinion of counsel acceptable to AMBAC with regard to the validity and enforceability of the ESCTOW
Agreement
13. If a forward supply contract is used:
(a) Securities delivered to the escrow agreement must be non<allable U.S. Govemment obligations which do
not mature later than the date on which needed to pay debt service on the refunded bonds.
(b) The CPA verification must be in fonn and substance satisfactory to AMBAC and must opine that the
escrow is sufficient to defease the refunded bonds whether or not the forward supply contract provider
delivers securities to the escrow.
(c) The forward supply contract must specify that (i) the purchase price of the securities delivered to the
escrow must not exceed the amO\mt of cash received from maturing securities in the escrow. as specified
in the verification. and (ii) the maturity value of the securities delivered to the escrow must not be less
than the purchase price paid for such securities.
(d) The forward supply contract provider shall have no recourse to the escrow upon any failure of the issuer or
escrow agent to perform its obligations under the forward supply contract. Other than the payment of the
purchase price for the securities to be delivered pursuant to the forward supply contract, no payments of
any other kind may be made from the escrow in respect of the forward supply contract.
(e) The forward supply contract provider must be rated at least A by a nationally recognized rating agency.
(1) The forward supply contract shall be in form and substance satisfactory to AMBAC.
14. In the event the Series 2005 Bonds are issued on a vuiable rate basis the financing docwnents. the liquidity
provider and the liquidity agreement must be acceptable to AMBAC.
15. 'Ibis commitment is applicable to a principal amount of Series 2005 Bonds resulting in annual debt service through
September I. 2021 equal to or less than annual debt service on the Series 1994 Bonds.
Commitment for Municipal Bond Insurance
Issuer:
crrY OF MIAMI BEACH. FLORIDA
Bonds:
Taxable Special Obligation Bonds. Series 2005, dated
September 1,2005, maturing September I, 2006 through
September 1,2021.
AMBAC ladeamity Corporation.
do cr Corporation Systems
44 East MlftliD Street
Madison. WlscoasiD 53703
AdlDiDlstradve omee:
OM State Street Plaza
New York. New York 10004
Commitment Number:
13168
Date of Commitment
February 9, 1996
Expiration Date:
September 1,2005
Commitmeat Fee: 5150,000.00
lDSuraDee premium: 0.34-/- of the total
priDdpal aDd iDterest due on the Bonds
(PItch IDveston Sen1ce, LP., Moody's
Iawston Sen1ee ad Standard & Poor's
RadDe- Group assess separate radDe fees
wllich are payable directly to them. All
qaesdoDs reprdiq the payment of such fees
..at be addressed to the .ppOcable rating
..cy.)
AMBAC Indemnity Corporation (AMBAq A Wisconsin Stock Insurance
Company
hereby commits to issue a Municip8l Bond" Insurance Policy (the "Policy-) re1atiDg to the abovMescribed debt obligations
(the "Bonds-), substantially in the form imprinted in this Commitment. subject to the termS and conditions contained
herein or added hereto (see cooditiaas set forth on page 2 and following).
To keep this Commitment in area after the expiration date set forth above, a request for renewal must be submitted to
AMBAC prior to such expiration date. AMBAC reserves the right to refuse wholly or in part to grant a renewal.
The MunJdpal Bond lDSuraDee Policy sball be issued if tbe followiDl coDdido.. are satisfied:
1. The documents to be executed and delivered in connection with the issuance ad sale of the Bonds shall not contain
any untrUe or misleading statement of a material fact and sba1l not fail to state a material fact necessary in order to
make the information contaiDed therein not misleading.
2. No event sha1l occur which would permit any purchaser of the Bonds. otherwise required, not to be required to
purchase the Bonds on the date scheduled for the issuance and delivery thcreoL
3. There sha1l be no material change in or affecting the Bonds (including, without limitation. the security for the
Bonds) or the financiDg documents or the official statement (or any similar disclosure document) to be executed and
delivered in connection with the issuance and sale of the Bonds from the descriptions thc:reofheretofore provided to
AMBAC.
4. The Bonds shall contain no reference to AMBAC, the Policy or the municipal bond insunmce evidenced thereby
except as may be approved by AMBAC.
S. AMBAC shall be provicJed with:
(a) Executed copies of all fmanciDg dac:uments, the official st,tPment (or any similar disclosure document) and
the various legal opinions delivered in connection with the issuaDce and sale of the Bonds, including, without
limitation, the unqualified approving opinion of bond counsel rendered by a law firm acceptable to AMBAC.
The form of Bond Counsel's approving opinion shall also indicate, if applicable, that the Bonds are exempt
from federal income taxation, that the issuer must comply with certain covenants under and pursuant to the
new tax law and that the issuer bas the legal power to comply with such covenants. Such opinion of bond
counsel shall be addressed to AMBAC or, in lieu thereof, a letter sba1l be provided to AMBAC to the effect
that AMBAC may rely on such opinion as if it were addressed to AMBAC.
(b) A letter from bond counscl or counsel to the purchaser or otbc:rwise from another person acceptable to
AMBAC to the effect that the financing documents, the official st.tMN!ll~ (or any similar disclosure
docwnent) and the various legal opinions executed and delivered in c:onncction with the issuance and sale of
the Bonds are substantially in the forms theretofore submitted to AMBAC for review, with only such
amendments, modifications or deletions as approved by AMBAC.
(c) A certified or cashier's check for or evidence of wire transfer ofm amount equal to the insurance premium at
the time of the issuance and delivery of the Bonds. If the amount ofpremimn exceeds SIOO,ooo.OO, payment
must be made by federal fimds wire transfer.
6. Unless expressly waived in whole or in part by AMBAC, the financing documents and the Official Statement shall
contain (a) the terms and provisions provided in the AMBAC IndemDity STANDARD PACKAGE transmitted
herewith and (b) any additional oral or written provisions or comments submitted byAMBAC.
7. AMBAC shall receive a copy of any insurance policy, surety bond. guaranty or iDfVomnification or any other policy,
contract or agrec:mc:nt which provides for payment of all or any portiOll of the debt, the costs of reconstruction, the
loss of business income or in any way secures. eosurc:s or "'t1h~the income stream mticipaled to pay the bonds.
8. Any provisions or requirements of the Purchase Contract or Bond Purchase Agrcc:ma1t referencing AMBAC must
be sent to the attention of Janine Feudi not less than five (S) business days prior to closing. If such provisions or
requirements are not received within that time, compliance may not be possible.
9. Review and approval by AMBAC ai least 5 days prior to closing of the Escrow Agreement for the defeasance of the
applicable Bonds (the "Prior BondsW).
10. At least 5 days prior to closing, AMBAC must receive certification by an aa:otmting firm acceptable to AMBAC
that the securities invested are sufficient to pay the Prior Bonds. Upon receipt of this commitment AMBAC should
be notified which firm will be providing the cc:rtification.
11. Receipt of an opinion of counsel acceptable to AMBAC that the Prior Bonds have been legally defeased.
12. Receipt of an opiniOll of counscl acceptable to AMBAC with regard to the validity and enforceability of the Escrow
Agreement
13. Ifa forward supply contract is used:
(a) Securities delivered to the escrow agreement must be non-ca11able U.S. Government obligations which do
not mature later than the date on which needed to pay debt service on the rcfimded bonds.
(b) The CPA verification must be in fonn and substance satisfactory to AMBAC and must opine that the
escrow is sufficient to defease the refunded bonds whether or not the forward supply contraCt provider
delivers securities to the escrow.
(c) The forward supply contraCt must specify that (i) the purchase price of the securities delivered to the
escrow must not exceed the amount of cash received from maturing securities in the escrow, as specified
in the verification., and (ii) the maturity value of the securities delivered to the esaow must not be less
than the pW'Chasc price paid for such securities.
(d) The forward supply contract provider shall have DO recourse to the escrow upoD 8JJ'f failure of the issuer or
escrow agent to perform its obligatioos under the forward supply CODtI'8Cl Otbcr thaD the payment ofthc
purchase price far the securities to be delivered pursuat to the forward supply ccotract. DO payments of
any other kind may be made from the escrow in respect of the forward supply ccotraet.
( e) The forward supply contract provider must be rated at least A by a uatioaally r'ClOOp'mn rating agency.
(1) The forward supply contract sball be in form and ~ ,.tid'...-tory to AMBAC.
14. In the event the Saies 200S Beads are issued OIl a variable rate buis the r.~ ~. the liquidity
provider and the liquidity agrec:mc:nt must be acceptable to AMBAC.
IS. This commitment is applicable to a principal amount ofSaies 2005 Boods resulting in lIIIDU&l debt service through
September I, 2021 equal to or less thaD lIIDual debt service OIl the Series 1994 Bonds.
..
Municipal Bond Insurance Policy
Issuer:
Bonds:
AMBAC Indemnlry Corporaclon
('0 CT Corporation Srstems
..j1 E.lst ~tllf1in Sr.. Madison. Wisconsin 53703
AdminiStrative Ofilce:
One Stace Street Plaza. New York. NY 10004
Telephone: 1212) 668-0.;~O
PollC'. :-';umber:
Premium:
AMBAC Indemnity Corporation (AMBAC) A \X.lsconslO Srock Insurance Company
In consideraclOn of che pavment of rh... premll.lm and subJect :" :h~ tcrms "f rhls Po II c\". hereby agrees ro pay t h Cnited States Trust
Company of New York. as cruscee. or its successor I the .lnsuroln,... Trust...... I. r.or the benefit of Bon older
cipal of and Incerest on che above-descnbed debt obb!'"tlons I rh... B"nJs. I whICh shall become Due f
reason of Nonpayment by the Issuer
AMBAC WIll make such payments to the Insurance Trust...... w.th,n ,'n... 1 I) bUSIness day
ment. Upon a Bondholder.s presentatIOn and surrend...r to [he 1 nsurJne... Trusree oi sue u aId
canceled and in be?rer form and fre... of an\" advers... claim. the Insur.lmc Trustee bu
prinCipal and Interest whIch IS then Due for Payment but IS unpolld. l.pon suc
surrendered Bonds and coupons and shall be r.ull\" s:Jbrn~:lted ro JII "f r . Bon
In cases where the Bonds are issuable only In :l form whereh\ ['nm I ndholders or cheir assigns. the
Insurance Trustee shall d,sburse pnncipal to ;l Bondholder ;lS Jr; J ac n ;lnd surr...nder to the Insurance Trustee
of the unpaId Bond. uncanceled and free of any adverse c10ll m. u t of assl~nment. ,n form satlsf:lcrorv to the
Insurance Trustee. duly ...xecuted b\" rhe Bondholder or 0 ed representarlve. so as co permit ownership of
such Bond to be regIstered in che name of AMBAC or It 0 e onds are Issu:lble onl~. .n a form whereby .nteresc
IS payable to reglster...d Bondholders or rhelr :lSSI ns. th 5 dIsburse incerest to a Bondholder as aforesaId only
upon pcesencaClon to rhe Insurance Truscee of p a rh on entlded co rhe paymenc of inceresc on the Bond and
delIvery to the Insurance Trustee of :In tn of for s:lrlsf:lecory to th... Insurance Trustee. duly executed by rhe
claimanc Bondholder or such Bondholder. aui tol 'e. tCansr...mng to AMBAC all nghts under such Bond to rece.ve
the Int...resc In respect of whICh the u ce Jd.... AMBAC shall be subrogaced [0 all the Bondholders. rights to
payment on r...glstered Bonds [ ... ...xt t f [ J,shurst:m...nrs so made.
In the event rh... trusr...... or YI~t r of pnn(Jpal of or Inter...sr on a Bond whICh has
become Due for Paym ;~~ e to .I 0 wlJ...r n\. "r ,'n ~chJlr. or. [h... Issu...r of the Bonds h:lS b......n de...med a preferential
rransfer and theret rver fr irs reglst...red own...r pu"uJn[ [" rh~ Ln.t...d Sr:ltes Bankruptcv Code In accord:lnce wlrh a flOal.
nonapp...alable or r a co f m cent lunsdicrlOn. ,u,h r"'~lStcr,J "wn..., \\.11 b... cnelded to pa,.ment from AMBAC to th... extent
of such recovery S lent fu are at orherwlse J\.olJ!Jbk
As used herein. the der means any person "rn...r rhetn rhe Issuer who. olt the time of ~onpavmenr. is rhe o1l,"...r of a Bond
or of a coupon apperral and. As used her...ln. ..Du... r"r Pc" m...nr when refernng ro the pnnclp:ll of Bunds. IS when rhe stated
matuClty dare or a ma edemption date ior rhe arr'''J""n "r .1 r<"'lulred slnklO!,: tund Installment has been reached and does not
refer ro any earlier dace on which payment '5 du... h reJson "r ,.i11 t."r red...mptlon lother th..n by appliC:lClon of reqUired slnklOg fund
installments). acceleration or other advancement or. marun tv: .lnJ. \\ hen r...r...m n~ to ,nteresr on rhe Bonds. '5 when rh... stated Jate for
payment of incerest has been reached. As us...d h...r...ln. . \:\)npol\01cnc". ;TILlnS '[h... f:lilure of the Issuer ro have provld...d suiilClenr iunds
co the paying agent for payment in full of all pnnclpal "r JnJ :n[...r~s[ "n the Bonds which .Ire Due lor Pavmenr.
This PolICY IS noncancelable. The premIum on thIS Polin IS n\lt rdundJbk tor oln\" re:lson. ,ncludIng payment of the Bonds pnor to
maturity. This Policy does not insure agalOsc loss oi an\" rr...p\"m...nr "r ,)[h...r Jcce!er:ltlon payment which at any time m:lV becom... due
in respeCt of any Bond. other than at the sole option at :\~IBAC. nur JeJlnS, an\" rISk orher than :-';onpaymenr.
In wicness whereof. AMBAC has caused rhis Poltcv to b>e Jrflx...J ....'rn J rol,slmde of ItS corporare seal and to be Signed by ItS dulv
authorized officers tn faCSImile co become effectIve olS Irs ,)rt':IO.Ji I'.JI JnJ 51;:nJ[ures :lnci bIndIng upon AMBAC by vlrrue of the counrer-
slgnacure of irs duly authonzed represencaclve.
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Effective Date:
UNITED STATES TRUST COMPANY OF NEW YORK acknowledszes that it
has agreed to perform the duties of Insurance Trustee under this Policy
Form' S66-000:\ 48'9!1
~k.~~
Secretary
Authorized Represenr.:ltive
~ eh~~/
AuthoriZed Officer
AMBAC.
AMBAC Indemnity Corporation
clo CT CorporatiOn Systems
-.4 East Mifflin Street
Madison. Wisconsin 53i03
Administrative Office:
One State Street Plaza
New York. New York 10004
Endorsement
Policy Issued to:
Attached to and formmg part uf
Effectl\'~ Date of Endorsemem:
In Witness
duly authorI
VIrtue of cou
AMBAC Indemnity Corporation
The insurance provided by this policy is not covered by the Florida lnsu
"Ulhmg lltc"rem comamed shall be hel
I1mllatlOlb uf the abov~ mentioned i
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IMBAC.
AMBAG.
Standard & Poor's Ratings Group
Municipal Finance Depanmem
Bond Insurance Administration
Fee Policy 8& Billing Administration
-25 Broadway
New York. New York 10004-1064
'TeJephone 212/412-0355
~'1 i:I
ftnri
STANDARD & POOR'S RATINGS FEES FOR
INSURED ISSUES and ASSIGNMENT
OF INSURER'S CLAIMS - PAYING RATINGS
TO INSURED ISSUES
Standard &. Poor's Ratings Group currently rates the insmance claims paying ability of AMBAC
lndemnity Corporation (AMBAC) · AM" for long-term oblip1:iODS, and cmly after specific
review by S&P, .SP-l+" for short-term obligations.. Accordingly, obligations insured by
AMBAC will receive the appropriate S&P rating.
Prior to assigning a rating to an insured obligation, S&P verifies that AMBAC's insurance policy
for the issue(s) to be insured guarantees full and timely payment of all principal and interest, in
full and when due, and is permanent and unconditional for the full life and maturity of the
i?sured obligation(s). S&P also receives preliminary information from AMBAC at the time of
a commitment of insurance. An initial review of the security-type is made at the time S&P
receives policy information. Upon verification of these conditions S&P will assign the · MA"
or "SP-! +" rating to the insured obligation(s). Written confirmation of that action wilt' be
provided to AMBAC and made available prior to or by the date of the closing. The issue and
its appropriate -AAA" or .SP-l+" rating will then be included in all S&p's published ratings
directories and rating verification services.
STANDARD & POOR'S REQUIREMENTS
FOR INFORMATION FROM ISSUERS
ln order to assess continually the ~AAA" or .SP-! +" claims paying ability of AMBAC, S&P
reviews the credit quality of selected insured obligations periodically. If the insured obligation
is on a parity with or it's repayment source is closely related to, outstanding debt which is rated
by S&.P on an uninsured basis, S&P must review the ratings on the outstanding uninsured debt
prior to the closing date of the new insured obligations. S&P requires that the issuer provide
the same documentation nonnal!y required for the rating of any new issue, e.g., preliminary
official statement, legal documents, finan~ial statements, de.
In the course of our rabng p1ocess, issuers can also ~ S&P analysts to ~contact
apptOpriate officials with questions and requests for additional in!om1ation. As is the case with .
all ratings, if sufficient and approplWe information is not made available, S&P .~es the
right to withdIaw the outstanding parity or related rating(s) on the uninsured debL ..
If the insured obligation is not on parity with Or related to other rated outstanding debt, S&P still
may assess the credit quality of the insured obligations (on 2J1 underlying basis) as a pan of
S&rs overall evaluation of AMBAC's insured portfolio. As a result, S&P may periodically
%equire additional information concerning the insured obligation.
STANDARD" POOR'S FEES
FOR INSURED ISSUES
Fees for ranng services for insured debt obligations are ddenDined on the same basis as fees for
non-insured issuances. Information about fees can be determined, for specific obligations or
based on general -ranges- offees by calling Mr. Vmcent O!Io or Mr. Michael Gmino at (212)
412-0355. Standard &, Poor'slMunicipal rUWlce Departme:I1t billing " fees policy for insured
debt issuancrs is as follows:. .
L Each insured obligation will be bnIed a fating service fee. Fees are payable, in fuII, by
the issuing entity, underwriter, financial advisor or purchaser of insmance - depending
upon the structuring of the debt obligation. Multiple insurance policies may be a basis
for additional fcc charges beyond nonna] fees.
n. When insurance is obtained on an issuance where S&P has not received an application
for a rating on an uninsured basis, the invoice for rating services will be billed and
forwarded to the purchaser of the insurance, UOless otherwise advised (see attached). If
rating fees are to be paid by other than the purchasers of the insurance, S&P MUST BE
NOTIFIED WHOM TO BILL.
DL When an issue bas rec:eived an S&P rating on an uninsured basis and the issue then
subsequently is insured at the time of sale, S&P will bill the issuer or other appropriate
party of the debt without any additional charges for the insured rating C- AAA" or .SP-
1 + It).
Bond Insurance Administration/Fcc Policy" Bitling Adminisuation
Arthur J. Grisi, Senior Vice President
Vincent Orgo, Administrative Offic:c:r
Michael Gmitro. Pricing Specialist
Fax Number
212/412-0355
212/412-0355
212/412.Q355
2121208-8262
Standard & Poor's Ratings Group
Municipal Finance Department
Bond Insurance Administration
Fee Policy & Billing Administration
25 Broadway
New York. New York 10004- 1064
Telephone 212/412-0355
FAX 212/208-8262
.lrj~
ffiri
ISSUES COMM.f~D AND SOLD COl\1PETITIVELY
Par Amount:
Issue Name:
Commitment It:
In order to expedite the billing process for Standard & Poor's rating fees, please provide
billing address and contact person information below. This information should be forv..arded
to S&P as soon as an issue sale has been completed.
Name & Ti tle:
Company:
Address:
Telephone It:
Enclosed is a self-addressed envelope to funher assist this process. If you should have any
questions, please call Vincent Orgo at S&P 212/412-0355.
,
.I"l
m Moodys Invest~rs Service
~ Public Rnance Dep:rirrent
Moody's Ratings and Fees for Insured Issues
Assignment of Insurer's Claims-Paying Ratings to Insured Issues
Moody's Investors Service currently rates the for the issue to be insured guarantees full and timely
insurance claims-paying ability of AMBAC Indemnity payment of all principal and interest when due, and is
Corporation (AMBAC) An for long-tenn obligations pennanent and unconditional for the "life of the insured
and MIS 1 for short-tenn notes. Accordingly, Moody's obligation. Upon verification of these conditions
will assign the appropriate rating to each obligation Moody's will assign the Au or MIG 1 rating to the
insured by AMBAC. insured obligation.
By seeking bond insurance from AMBAC, the issuer After Moody's assigns the rating, written confinnation
automatically causes application to be made on its of that action will be provided to AMBAC and made
behaIfto Moody's for assignment of a rating to the available at the closing. The issue and its Au or MIS 1
insured securities. rating will then be included in all Moody's published
ratings directories and rating verification services.
Prior to assigning a rating to an insured obligation,
Moody's will verify that AMBAC's insurance policy
Moody's Requirements for Information from Issuers
In addition to our verification of the insured
transaction prior to the assignment of the Au or MIS 1
rating, Moody's reviews the underlying credit quality
of the insured obligation.
If the insured obligation is on parity with, or its
repayment source is closely related to, outstanding
debt which is rated by Moody's on an uninsured basis,
Moody's will review the ratings on the outstanding
uninsured debt prior to the closing date of the new
insured obligation. Moody's will require the issuer to
provide the same documents nonnally required for the
rating of any new issue, e. g., preliminary official
statement, legal documents, financial statements, etc.
In the course of our rating review, issuers can also
expect a Moody's analyst to call with questions and to
request additional infonnation. As is the case with all
rating reviews, if sufficient and appropriate
information is not made available Moody's may
withdraw the outstanding parity or related ratings on
the uninsured debt.
If the insured obligation is not on parity with or related
to other rated outsW1ding debt, Moody's still will
assess (for internal purposes) the credit quality of the
insured obligation as a part of Moody's overall
evaluation of the credit quality of the insured portfolio
of AMBAC. In addition, Moody's may from time to
time require updated infonnation concerning the
insured obligation.
Rating Fee for Insured Issues
Moody's fees for insured issues are determined on the
same basis as fees for non-insured issues. Such fees
can be determined by calling Anita Webb (212) 553-
0901 or Bernie Morris (212) 553-4055, at Moody's.
Moody's billing policy is as follows:
(a) Each insured obligation will be billed a rating
service fee.
(b) When insurance is purchased on an issue where
Moody's has not received an application for a
rating on an uninsured basis, the rating fee will be
billed to the purchaser of the insurance.
(c) When an issue has received a Moody's rating on an
uninsured basis and the issue is subsequently
insured, Moody's will bill the issuer without an
additional charge for the insurance rating.
AMBAC.~
January 18, 1996
.-\.\IBAC Indemnity Corror:ltion
One ~rale Stred P!:.lZ:1
'\1.'\\ York. :'\l.'\\" York [()t)(H
I 212) hhX-(l:l,-fl) Fax (212) :;l)9-')ll)()
AMBAC INDEMNITY STANDARD PACKAGE FOR LIMITED OR
UNLIMITED TAX GENERAL OBLIGA nON AMBAC-INSURED
TRANSACTIONS
TO: Issuer, Issuer's Counsel. Ma~ging Underwriter. Bond Counsel and Underwriter's Counsel
RE: preparation of Financing Documents for AMBAC Indemnity Insured Issues
The attached materials have been prepared to assist you in the-preparation of documents for your A1\ffiAC
Indemnity Corporation ("AMBAC Indemnity") insured issue. Please modify the ~chNf exhibits where
appropriate and notify us as to any proposed modifications. If desired. these provisions can be incorporated into
one section entitled "Municipal Bond Insurance" within the applicable Resolution, Ordinance, Order or any
other operative financing document (such applicable financing document will be 1I;!eaed to herein as the
"Financing Document"). Please be advised that the provisions contaiDed in this package are in addition to the
cooditions listed in the Conunitment for Municipal Bond Insurance and any other wkunents or changes that may
be required by the AMBAC Indemnity personnel working on this financing. If you have any questions, please
call one of the following persons: Eileen L. K.irchoffor Mary P. McKeon.
. Definitions (Exhibit A).
. AMBAC Indemnity consent required for changes to underlying documentation and exercise
of remedies upon defiwlt (Exhibit B).
. INFORMA nON to be given to AMBAC Indemnity (Exhibit C).
. Defeasance Language (Exhibit D).
. Description of AMBAC Indemnity Payment Procedure (Exhibit E).
. AMBAC Indemnity as a third-party beneficiary (Exhibit F).
. Suggested language for (i) AMBAC Indemnity Official Statement Disclosure, (ii) Notice of
Sale, (iii) Bond Legend, and (iv) Cover page of Official Statement (Exhibit G).
. Form of AMBAC Indemnity Legal Opinion (Exhibit H).
. Form of AMBAC Indemnity Certificate of Bond Insurer (Exhibit I).
. AMBAC Indemnity Wiring Instructions (Exhibit 1).
EXHIBIT A
DEFINITIONS
The following definitions are those which AMBAC recornme:~js fo:- the Financing Docwnent:
"AMBAC Indemnity" shall mean AMBAC Indemnity Corporation. a Wisconsin~ci1ed stock
ImUJ"3I)Ce company.
"Municipal Bond Insurance Policy" shall mean the municipal bond insurance policy issued by AMBAC
Indemnity insuring the payment when due of the principal ofand interest on the Bonds as provided
therein.
EXHIBIT B
AMBAC CONSENT LANGUAGE
AMBAC requires that the Financing Document include the follo\\ing consent provisions:
A. Consent of AMBAC Indemnity.
Any provision of this [Financing Document) expressly recognizing or granting rights in or to AMBAC
Indemnity may not be amended in any manner \\tUch affects the rights of AMBAC Indemnity hereunder
without the prior written coosent of AMBAC Indcm'lity.
B. Consent of AMBAC Indemnity in Addition to Bondholde.r Consent.
Unless otherwise provided in this Section, AMBAC Indemnity's consmt shall be required in addition to
Bondholder consent, when requin:d, for the following purposes: (i) execution and delivery of any
supplemental [Financing Doc:wnent) or any amendment, supplement or change to or modification of the
[Loan Agreement, Lease 4.;ement, etc.) (ii) rerr.oval of the Trustee or Paying A~ent and seJPf"tion and
appointment of any successor trustee or paying agent [required in those transadions :"''1 which the FinaI~ing
Document provides for a trustee or paying agent); and (ill) initiation or approval of any action not described
in (i) or (ii) above which requires Bondholder consent.
C. Consent of AMBAC Indemnity in the E\-'ent ofInsol"ency
Any reorganization or liquidation pl;m \\ith respect to the [issuer or obligor] must be acceptable to AMBAC
Indenmity. In the event of any reorganization or liquidation, AMBAC Indemnity shall have the right to vote
on behalf of all bondholders who hold AMBAC Indemnity-insured bonds absent a defiwlt by AMBAC
Indemnity wxier the applicable Mw1icipal Bond Insurance Policy insuring such Bonds.
D. Consent of AMBAC Indemnity Upon Default.
Anything in this [Financing Document] to the contrary IlO'\vithst;mding, upon the occurrence and continuance
of an event of defwlt as defined herein. AMBAC Indemnity shall be er.tit1ed to control and direct the
enforcement of all rights and remedies granted to the Bondholders or the Trustee for the benefit of the
Bondholders under this [Financing Document]. [pursuant to state law]
.
EXHlBH (.
INFORMATION TO BE GIVEN TO ~\1BAC
AMBAC requires that the foUowing noti~ provisions be incorporated in the Financing Document:
A. While the Mw1icipal Bond Insurance Policy is in effect. the Issuer* or the Trustee [as appropriate] shall
furnish to AMBAC Indemnity (to the attention of the Surveillance Department. unless otherwise
indicated):
(a) as soon as practicable after the filing thereot: a copy of any financial statement of the Issuer* and a
copy of any audit and annual report of Gle Issuer* at no cost to AMBAC;
(b) a copy of any notice to be given to the registered owners of the Bonds, including, without J:rnitation,
noti~ of any redemption of or defeasance of Boods, and any certificate rendered pursuant to chis
[Financing Document] relating to the security for the Bonds, at no cost to AMBAC; and
(c) such additional infoimation it may reasonably request.
B. The Trustee or Issuer* [as appropriate] shall notify AMBAC Indemnity ofauy ~;..LCe of the Issuer* to
provide relevant notices, certificates, etc.
C. The Issuer* will pennit AMBAC Indemnity to disCuss the affiWs, financeS and accounts oftbe Issuer*
or any infonnation AMBAC Indemnity may reasonably request regarding the security for the Bonds
with appropriate officers of the Issuer*. The Trustee or Issuer* [as appropriate] will pennit AMBAC
Indemnity to [have access to the Project and] have access to and to make copies of all ~ and records
reJ.atiJ'lg to the Bonds at any reasonable time.
D. AMBAC Indemnity shall have the right to direct an accounting at the Issuer's. expense, and the Issuer's.
fiWure to comply with such direction \\ithin thirty (30) days after receipt of written notice of the direction
from AMBAC Indemnity shall be deemed a defiwlt hereunder; provided. however, that if compliance
cannot occur within such period. then such period will be extended so long as compliance is begun within
such period and diligendy pursued. but only if such extension would not materially adversely affect the
intereStS of any registered owner of the Bonds.
E. Notwithstanding any other provision of this [Financing Document], the Trustee or Issuer. [as
appropriate] shall immediately notify AMBAC Indemruty if at any time there are insufficient moneys to
make any payments of principal and/or inter~ as required and irnmc:diately upon the occurrence of any
event of defiwlt hereunder.
F, To the extent that the Issuer has cotered into a continuing disclOS'.lre agreement with
respect to the Bonds, AMBAC Indemnity shall be included as party to be notified.
-or appropriate obligor on the Bonds.
EXHIBIT D
DE~ANCELANGUAGE
A. Ifapplicable, the defeasance section of the Financing Docwnent should include the following language:
Notwithstanding anything herein to the contrary, in the event that the principal and/or interest due on the
Bonds shall be paid by AMBAC Indemnity Corporation pursuant to the Municipal Bond Insurance Policy,
the Bonds shall remain Outstanding for all purposes, not be defeased or oeherwise satisfied and not be
considered paid by the Issuer, and the assignment and pledge of the Trust Estate and all covenants,
agieements and oCher obligations of the Issuer to the registered owners shall continue to exist and shall run to
the benefit of AMBAC Indemnity, and AMBAC Indemnity shall be subrogated to the rights of such
registered owners.
EXHIBIT E
PA YMENT PROCEDURE PURSUA1"lT TO THE MUNICIPAL BOND INSURANCE
POLICY
The foUowing language sets out the applicable procedure for payments W1der the Mw1icipal Bond Insurance
Policy and should be incoryorated into the Financing Docwnent:
As long as the bond insurance shall be in full force and effect, the Issuer, the Trustee and any Paying Agent agree
to comply with the following provisions:
(a) At least one (1) day prior to alllnt.erest Paymc:nt Dates me Trustee or Paying Agent, ifany, will
determine whether there will be sufficient funds in the Ftmds and Accounts to pay the principal of or
interest 00 the Bonds on such Interest Pa}1Tlel1t Date. If the Trustee or Paying Agent, if any, determines
that there will be insufficient fimds in such Ftmds or Accounts, the Trustee or Paying Agent, if any, shall
so notify AMBAC Irxbnnity. Such notice shall sp;:cify the amount of the anticipated deficiency, the
Bonds to which such deficiency is applicable and whether such Bonds will be deficient as to principal or
inte~,..~ "":>th. If the Tr\b~ or Pa}ing Agent, jf~v. has not so notified AMBAC Indemnity at le:1St
one (1) dav prior to an Interest Paym..--nt Date, AWL8AC Irxbnnity will make payments of principal or
interest due on the Bonds on or before the first (bt) day next following the date on which AMBAC
Indcmnity shall have received notice of nonpayment from the Trustee or Paying Agent, if any.
(b) the Trustt'.e or Paying Agent, ifany, shall., after giving notice to MffiAC Indemnity as provided in
(a) above, make available to AMBAC Indemnitv and. at AMBAC Indemnity's direction, to the United
States Trust Company of New York. as ~ trustee for AMBAC Indemnity or any successor
inswance trustee (the "Insurance Trustee'). the registration books of the Issuer maintained by the
Trustee or Paying Agent, ifany, and all records relating to the Funds and Accounts maintained W1der
this [Financing Document).
(c) the Trustee or Paying Agent, ifany. shall provide AMBAC Irxbnnity and the InswanCl: Trostee
with a list of registered owne~ of Bonds entitled to receive principal or interest pa}11lCllt5 from AMBAC
Indcmnity W1der the terms of the Mw1icipal Bond)'lSllI'<U)Ce Policy, and shall make arrangements with
the Insurance Trustee (i) to mail checks or drafts to the registered owners of Bonds entitled to receive~.ill
or partial interest payments from AMBAC Irxbnnity and (ii) to pay principal upon Bonds surrendered
to the Insurance Trustee by the registered owne~ of Bonds entitled to receive full or partial principal
payments from AMBAC Irxbnnity.
(d) the Trustee or Paying Agent, ifany, shall. at the time it provides notice to AMBAC Indemnity
pursuant to (a) above, notify registered owne~ of Bonds entitled to receive the payment of principal or
i.nten:st thereon from AMBAC Irxbnnity (i) as to the fact of such entitlement. (ii) that AMBAC
Indcmnity will remit to them all or 3 part of the interest payments next coming due upon proof of
Bondbolder cntitlc::ment to hlterest payments and delivery to the Insurance Trustee. in fonn satisfuctory to
the Insurance Trustee, ofan appropriate assignment of the registered owners right to payment, (iii) that
should they be entitled to receive full payment of principal from AMBAC Indemnity, they must
sum:uder their Bonds (along with an appropriate instrument of assignment in fonn sati.c;fua.ory to the
Insurance Trustee to pennit ownership of such Bonds to be registered in the name of AMBAC .
Indemnity) for payment to the Insurance Trustee, and not the Trustee or Paying Agent, ifany, and (IV)
that should they be entitled to receive partial payment of principal from AMBAC Indemnity, they must
surrend.':r their Bonds for payn=1t thereon first to the Trustee or Paying Agent, if any, who shall note ~
such Bonds the portion of the principal paid by the frustee or Paying Agent, ifany, and then, along ~lth
an appropriate instrument of assigmnent in fonn sarisfuctory to the Insurance Trustee, to the Insurance
Trustee, which will dlf"f1 pay the unpaid portion of principal.
(e) in the event that the Trustee or Paying Agent if any. has notice that any payment of principal of or
interest on a Bond which has become Due for Pa" ment ar.d which is made to a Bondholder by or on
bd1ali of the Issuer has been deemed a preferential transfer and theretoful e recovered from its registered
owner pursuant to the United StateS Bankruptcy Code by a truStee in bankruptcy in aca>rdance v,ith the
final., nonappealable order ofa court having competent jurisdiction., the Trustee or Paying Agent, ifany,
shall., at the time AMBAC Indemnity is notified pursuany to (a) above. notify all registered owners that in
the event that any registered owners payment is so rewvered. such registered owner w:1( be entitled to
payment from AMBAC Indemnity to the extent of such recovery if sufficient funds are not otherwise
available. and the Trustee or Paying Agent, ifany, sha!l furnish to AMBAC Indemnity its records
evidencing the payments of principal cfand i.,terest on the Bonds which have been made by the Trustee
or Paying Agent, if any. and subsequently recovered from registered owners and the dates on which
such payments were made.
(f) in addition to those rights granted AMBAC Indemnity WJder this [Financing Document], AMBAC
Indemnity shall. to the extent it makes payment of principal of or interest on Bonds, beaxne subrogated
to the rights of the recipients of such pa}1l1CDtS in aca>rdance with the tenns of the Municipal Bond
Insurance Policy, and to evidence such subrogation (i) in the case of subrogation as to claims for past
due interest, the Trustee ".. Paying Agent if any, sr.a11 note AMBAC Indemnity's ri;hts as subrlJgce on
the regisL......ion books of the Issuer maintainea by the Trustee or Paying Agent. ifany, upon receirt fr0!"!:
AMBAC Indemnity of proof of the payment of in~rest thereon to the registered owners of the Bonds.
and (ii) in the case of subrogation as to claims for past due principal. the Trustee or Paying Agent, if
any, shall note AMBAC Indernnity's rights as subtogee on the registration books of the Issuer
maintained by the Trustee or Paying A.gent, if any, upon surrender of the Bonds by the registered owners
thereof together with proof of the payment of princi~ thereof
11.
EXHIBl T F
INTERESTED PARTIES
In addition to the provisions listed above. AMBAC also requires the foU~ing provision be incorpr:rated into the
Financing Document:
A. AMBAC As Third Party Beneficiary.
To the extent that this [Financing Document) coofers upon or gives or grants to AMBAC any right, remedy
or claim W1der or by reason of chis [Financing Document), AMBAC is hereby explicitly recognized as being
a third-party beneficiary hereunder and may enforce any such right remedy or claim conferred. given or
granted hereunder.
EXIDBJT G
AMBAC INDEMNITY OFFICIAL STATEMENT DISCLOSURE AND SUGGESTED LANGUAGE
FOR THE NOTICE OF SALE. BOND LEGEND. COVER PAGE OF OFFICIAL STATEMENT
AMBAC INDEMNITY OFFICIAL STATEMENT DISCLOSURE
Payment Punuant to Municipal Bond Insurance Policy
AMBAC Indemnity has made a comm.itment to issue a mwlicipal bond insw3nce policy (the "Mwlicipal Bond
Insurance Policy') relating to the Bonds effective as of the date of~ of the Bonds. Under the termS of the
Municipal Bond IJ1guance Policy, AMBAC Indemnity will pay to the Unital States Trust Company of New
York, in New York, New Yark or any successor thereto (the "Joswance Trustee') that portioo of the principal of
and interest 00 the Bonds which shall become Due fur Payment but shall be unpaid by reason of Nonpayment by
the Issuer (as such terms are defined in the Municipal Bond Insurance Policy). AMBAC Indemnity will make
such payments to the Inswaoce Trustee 00 the Iatcr of the date 00 which such principal and interest becomes Due
for Payment or within one business day following the date 00 which AMBAC Indemnity shall have received
notice of Nonpayment from the Trustee/Paying Agent. "f'!1e insurance will extend fur the term of the Bonds and.
once issued, cannot be canceled by AMBAC Indemnity.
The Mwlicipal Bond Insurance Policy will insure payment. only on stated maturity dates and on mandatory
sinking fund installment dates, in the case of principal. and 00 stated dales for payment, in the case of interest. If
the Bonds become subject to mandatory redemption and insufficient funds are available for redemption of all
outstanding Bonds, AMBAC Indemnity will remain obligaud to pay principal of and interest on outstanding
Bonds on the originally scheduled interest and principal payment dates including mandatory sinking fund
redemption dales. In the event ofany acceleration of the principal ofthc Bonds, the insured payments will be
made at such times and in such amounts as would have been made had there not been an acceleration.
In the event the TrusteelPaying Agent has notice that any payment of principal of or interest on a Bond which has
become Due fur Payment and which is made to a Bondholder by or on behalf of the Issuer has been deemed a
preferential transfer and theretofore recovered from its reg;stered owner pursuant to the United StaleS Bankruptcy
Code in aca>rdance with a final, nonappealable order of a court of competent jurisdiction, such registered O\\ner
will be entitled to payment from AMBAC Indemnity to the extent of such recovery if sufficient funds are not
otherwise available.
The Municipal Bond Insurance Policy does not insure any risk other than Nonpayment, as defined in the Policy.
Specifically, the Mwlicipal Bond Insurance Policy does not cover:
1. payment on acceleration, as a result of a call for redemption (other than OWJdatory sinking fund
redemption) or as a result of any other advancement of n13lUrity.
2. payment of any redcmptioo, prepayment or aca:leration premiwn.
3. nonpayment of principal or interest caused by the insolvency or negligence of any Trustee or Paying
Agent, if any.
!fit becomes ne<:ewlry to call upon the Municipal Bond Insurance Policy, pa~ment ofpri.,cipal requires
Sl'"'CXier of Rands to the Insurance Trustee together \\ith an appropriate instnunent of assignment so as to
pennit ownership of such Bonds to be registered in the name of AMBAC Indemnity to the extent of the pa}1llCDt
under the Municipal Bond Insurance Policy. Payment of interest pursuant to the Municipal Bond Insurance
Policy requires proof of Bondholder entitlement to interest payments and an appropriate assignment of the
Bondholders right to payment to AMBAC Indemnity.
Upon pa~: of the insurance benefits, A.\-ffiAC Indemnity will become the owner of the Bond. appurtenant
coupon. ifany, or right to payment of principal or interest on such Bond and will be fully subrogated to the
surrendering Bondholder's rights to payment.
FOR TRANSACTIONS INVOL VING VARIABLE RATE BONDS:
The Municipal Bond InsuraDce Policy does not insure agaiI)St loss relating to payments of the purchase price of
Bonds upon teoder by a registered owner thereof or any prefi:rentiaJ transfer relating to payments of the purchase
price of Bonds upon tender by ill registered owner thereof.
ADDITIONAL ~ '.RAGRAPH FOR CALIFORNIA TRANSACflONS:
In the event that AMBAC Indemnity were to become insolvent, any claims arising under the Policy would be
exduded fran coverage by the California Insurance Guaranty Association, established pursuant to the laws of
the Stare of California.
ADDITIONAL PARAGRAPH FOR NEW YORK TRANSACTIONS:
The insurance provided by the Municipal Bond Insurance Policy is not covered by the property/casualty
insurance security fund specified by the insurance laws of the State of New York.
ADDITIONAL PARAGRAPH FOR FLORIDA TRANSACTIONS:
The insurance provided by the Municipal Bond Insurance Policy is not covered by the Florida Insurance
Guaranty Association.
AMBAC INDEMNITY CORPORATION
AMBAC Indemnity Corporation (" AMBAC Indemnity') is a WisaJnsin~ci1ed stock insurance corporation
regulated by the Office of tile Comnussioner ofInsuranee of the Stale of Wisconsin and licensed to do business in
SO states.. the District of Culwnbia, the Territory of Guam and the Commonwealth ofPueno Rico, with admitted
assets of approximately $1.291.000.000 (unaudited) and :tatutory capital of approximatdy $1.283.000.000
(unaudited) as of Seotember 30. 1995. Statutory capital consists of AMBAC Indemnity's policyholders'
surplus and statutory contingency reserve. AMBAC Indemnitv is a wholly owned subsidiary of AMBAC Inc., a
100% publicly<<ld company. Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies,
IDe., Moody's Investors Service and Fitch Investors Service. L.P. have each assigned a triple-A claims-paying
ability rating to AivIBAC Indemnity.
AMBAC Indemnity has entered into pro rata reinsurance ~eements under which a pet\Nlttage of the insurance
underwritten ~ to certain municipal bond insurance programs of AMBAC Indemnity has been and will be
assumed by a nwnber of foreign and domestic unaffiliataJ reinsurers.
. J
AMBAC Indemnity has obtained a ruling from the Internal Revenue Service to the effect that the insuring of an
obligation by AMBAC Indemnity will not affect the treatJ'Tlent for federal income tax purposes of interest on such
obligaboo ana that insurance proceeds representing manmng interest paid by ~"1rlAC Indemnity wxler p<?licy
provisions substantially identical to those contained in il~ mumcipal bond insurance policy shall be treated for
federal income tax purposes in the same manner as if such payments were oWe by the issuer of the Bonds.
AMBAC Indemnity makes no representation regarding the Bonds or the advisability of invest:iJlb in the Bonds
and makes no representation regarding. nor has it participated in the preparation of. the Official Statement other
than the infonnarion supplied by AMBAC Indemnity and presented WJder the heading .. ..
AVAILABLE INFORMA nON
The pa.n:nt company of AMBAC Indemnity, AMBAC loc. (the "Company"), is subject to the inform.AtionaJ
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act'), and in accordance
therewith files reports. proxy star.ements and other infonnation with the Securities and Exchange Corrunission (the
"Commissioa'). Such reports, proxy statfments and other infonnatioo may be inspected and copied at the public
.efereDCC facilities maintained by the Conunission at 450 Fifth Street, N.W., W~chil1gtM. D.C. 20549 and at the
Commission's regional offices at 7 World Trade Center. New York. New York 10048 and Northwestern Atrium
Center. 500 West .~iadison Street, Suite 1400. Chicago, Dlinois 60661. Copies of such materia.I can be oC~~
from the public rererence section of the Commission at 450 Fifth Street, N.W., Washington. D.C. 20549 at
prescribed rates. In addition. the aforementioned material may also be inspected at the offices of the New York
St.oclc Exchange, Inc. (the "NYSE') at 20 Broad Street, NeW York. New York 10005. The Company's Common
St.oclc is listed on the NYSE.
Copies of AMBAC Indcnmity's financial statements prepared in accordance with Sl4tt1tory cu::counting standards
are available from AMBAC Indemnity. The address of AMBAC IndcIMity's admini.st:rative offices and its
telephone nwnber are One State Street Plaza. 17th Floor, New York. New York. 10004 and (212) 668-0340.
INCORPORA nON OF CERTAIN DOCUME1'ITS BY REFERENCE
The foUowing documents filed by the Company with 1h.: Conunission (File No. 1-10777) are incorporated by
rererence in this Official Statement:
(1) The Company's Annual Report on Fonn 10-K for the tiscaJ year ended December 31, 1994. filed
with the Conunission on March 31, 1995;
(2) The Company's Quanerly Report on Forr' -1.Q:Q..for the quarter ended September 30. 1995,
tiled with the Commission on November 14. 1995; and
(3) The Company's Current Report on Form 8-K., filed with the Conunission on July 18, 1995.
All documents subsequently tiled by the Company pursuant to the n:qwrements oftbe Exchange Act after the
date of this Official Statement will be available for inspc:ction in the same manner as described :iliove in
"AVAILABLE INFORMATION".
II
..
NOTICE OF SALE
AMBAC Indemnity Corporation ("AMBAC Ind:mr.!cy') has issued a co....nitrrle'nt for municipal bond ~ur.mce
relating to the Bonds. All bids may be conditioned upon the issuance effedive as of the date on which the Bonds
are issued, ofa policy ofinsurance by AMBAC Indemnity, insuring the payment when due ofprinc:pa1 ofand
interest on the Boods. Ead1 Bond will bear a legend referring to the insurance. The purchaser, holder or owner is
oot authorized to make any statements concerning the insurance ~ and those set out here and in the bond legend
without the approval of AMBAC Indemnity.
BOND LEGEND
Municipal Bond Insurance Policy No._ (the "Pclicy") with respect to payments due for principal ofand interest
<Xl this bond bas been issued by AMBAC Indemnity Corporation ("AMBAC Indemnity'). The Policy has been
delivered to the United Scares Trust Company of New Y oric, New Y oric, New Y oric, as the Insurance Tr:JSteC
under said Policy and will be held by such Insurance Trustee or any successor insurance trustee. The r olicy is on
file and available for inspection at the principal office of the Insurance Trustee and a copy thereofma~ be secured
Dan A.~AC Indemnity or the InsuraDce Trustee. All pa}mems required to be made under the Polit)' shall be
made in accordance with the provisions thereof The owner of this bond acla10wledges and consents to the
subrogation rights of AMBAC Indemnity as more fully set forth in the Policy.
COVER PAGE OF OmCIAL STATEMENT
Payment of the principal of and interest on the Bonds when due will be insured by a municipal bond insurance
policy to be issued by AMBAC Indemnity Corporation simultaneously with the delivery of the Bonds.
I:
EXHIBIT H
FORM OF THE AMBAC LEGAL OPI~10!'i
DATE/ADDRESSES
Ladies and Gentlemen:
This opinion has been requested of the undersigned. a Vice President and an Assistant General COW1SCI of
AMBAC Indemnity Corporation. a Wisconsin stock insurance company ("AMBAC L"ldemnity"), in connection
with the issuance by AMBAC Indemnity of a certain Municipal Bond Inswance Policy and endorsement thereto,
effective as of the date hereof (the "Policy"), insuring S> in aggregate principal amount of the > (the "Issuer'), >
dated > (the "Bonds').
In connectlon with my opinion herein, I have examined the Policy, such statutes, docume!1ts and proceedings as I
have considered neces<;ary or appropriate in the circwnstanc:es to render the following opinion. including, without
limiting the geuerality of the foregoing, certain staU'ments contained in the Official Statement of the Issuer dated
>, relating to the Bonds (the "Official Statement'') wder the headings ">" and ">".
Based upon ilk: foreg~...ng and having regard to legal considerations I deem relevant, I am of the opiuion that:
1. AMBAC Indemnity is a stock insurance company duly organized and validly existing under the laws of the
State of Wisconsin and duly qualifierl to conduct an insurance business in the State of>.
2. AMBAC Indemnity has full corporate power and authority to execute and deliver the Policy and the Policy
has been duly authorized., executed and delivered by AMBAC Indemnity and constitutes a legal, valid and
binding obligation of AMBAC Indemnity enforceable in accordance with its terms except to the extent that
the enforceability (but not the validity) of such obligation may be limited by any applicable bankruptcy,
insolvency, liquidation.. rehabilitation or other similar law or enactment now or hereafter enacted affecting the
enfOrc:ert1t21t of creditors' rights.
3. The execution and delivery by AMBAC Indenmity of the Policy will not, and the conswnmation of the
transactions contemplated thereby and the satisfaction of the terms thereofwill not, oootlict with or result in a
breach of any of the tenns, conditions ggor provisions of the Certificate of IDcorpondion or By-Laws of
I'.MBAC Indemnity, or any restriction contained in any contract, agreement or instrwnent to which AMBAC
Indemnity is a party or by which it is bound or constitute a defiwJt under any of the foregoing.
4. Proceedings legally required for the issuance of the Policv have been taken by AMBAC Indemnity and
licenses, orders. consents or other authonzations or 3fl=-rovals of any governmental boards or bodies legally
required for the enforceability of the Policy have been obtained; any proceedings not taken and any licenses,
authorizations or approvals not obtained are not material to the enforceability of the Policy.
5. The statements contained in the Official Statement under the heading '''>,'' insofar as such statements
constitute sununaries of the matters referred to therem. accwar.ely reflect and fairly present the information
purported to be shown and, insofar as such statements describe AMBAC Indemnity, fiUrly and accurately
describe AMBAC Indemnity.
,)
6. 1be form of Policy contained in the Official Statement under UlI' heading "-:>". is a tn;e and complete copy of
the form of Policy.
The opinions expressed herein are solely for your benefit, and may not be relied upon by any other person.
Very truly yours.
>
Vice President and
Assistant General Counsel
"
EXHIBIT I
CERTJFICA TE OF BOND INSURER
In connection with the issuanCe of> ir. aggregate principal amount of (the "Issuer") > (the
"Bonds"). AMBAC Indemnity Corporation C'AMBAC) is iss-ling a municipal bond inswance policy (the
"Insurance Policy') guaranteeing the payment of principal and mtereSt when due on the Bonds, all as more fully
set out in the Insurance Policy.
On behalf of AMBAC, the undersig;~ed hereby certifies that:
(i) the Insurance Policy IS an WlCOOditio(11J and recourse obligation of AMBAC
(enforceable by or on behalf of the holders of the BonUs) to pay the scheduled payments of interest and principal
on the Bonds in the event of a Nonpayment as defined in the Insurance Policy;
(ii) the insurance premiwn of$ was determined in ann's
length negotiations in accordance .,.,ith our standard procedures, is requind to be paid as a condition to the
issuance of the Insurance Polic:' 'Uld represents a reasonable charge for the transfer of credit fisk
(iii) 00 portion of such premiwn represents a payment for any direct or indirect services
other than the tranSfer of credit risk. including costs of underwriting or remarlceting the Bonds or the cost of
insurance for asuahy of Bond financed property;
(iv) we are not co-obligors on the &uds and do not reasonably expect that we will be called
upon to make any pa)'llleOt wxJer the Insurance Policy;
(v) the Issuer is not entitled to a refund for the Insurance Policy in the event that the Bonds
are retired prior to their stated maturity;
(vi) we would not have issued the Insurance Policy in the absence of a debt service reserve
fund of me size and type established by the documents ;>ursuant to which the Bonds are being issued, and it is
00rma1 and customarY to require a debt service reserve fund of such a size and type in similar tranSaCtions; and
(vii) we do not reasonably expect that the project will not be completed or that the Issuer
will not satisfy the tempOrary period requirements ofTn:asury Regulation Section 1.148-2(e)(2).
IN WITNESS WHEREOF, AMBAC !.'ldemnity Corporation has caused this certificate to be
executed in its name on this day of 19 by one of its officers duly authorized as of such date.
AMBAC INDEMNITY CORPORA nON
By:
Vice President and Assistant
General Counsel
I ~
,
EXHIBIT J
AMBAC INDEM1~ITY CORPORATION WIRIl\: INSTRUCTIONS
Citibank N.A.
ABA NO. 021000089
For: Mv1BAC Indemnity Corporation
AlC No. 40609486
Advise: Pamela Dottin (212) 208-3308
... Please indicate Policy Number on wire ...
POLICY NUMBER CAN BE OBTAINED FROM AMBAC INDEMNITY'S CLOSING DEPARTMENT.
CALL JANINE FEUDI AT (212) 208-3301
10
AMBAC@
A.\IBAC In<..il:mniry Corporarion
()nl.' Srall' Srrl.'l.'l Pbz;\
'\l.'\\- York. :\l.'\\- York !()()()-l
(212) ()()~-()51() Fax; (212) ';OSH)l<)()
February IS, 1996
Luis Reiter, Esq.
Squire Sanders & Dempsey
201 South Biscayne Boulevard
Miami Center, 29th Floor
Miami, FL 33131
RE: Surety Bond Amount for the City of Miami Beach, Florida Taxable Special Obligation Bonds, Series 2005,
dated September 1, 2005.
Dear Mr. Reiter:
Enclosed please find the original and one certified copy of the Commitment for Surety Bond, Commitment No. SB13200
(the "Commitmentj, relating to the a1xMxaptioned obligations (the "Bondsj. Tbe original of this Commitment should
be delivered to or held on behalf of the issuer of the Bonds, and if not exercised, should be disregarded.
Please note the following:
1. If requested, an opinion of AMBACs counsel regarding the :fdimcss and accuracy of the language included in the
Official Statement dcscnbing AMBAC and the Surety Bond will be deJ.iverc:d. The delivery of such opinion is
dependent upon the prior review of such official statement by our legal department
2. Enclosed for your use is AMBAC's STANDARD PACKAGE which contains (i) provisions relating to the Surety
Bond to be inserted in the financing documents; (ll) a sample surety bond to be issued by AMBAC; and (iil) certain
sample language for inclusion in the official statement relating to the Bonds (the "Official Statement").
3. Please refer to page 2 of this Commitment for conditions which must be satisfied prior to AMBACs release of its
Surety. Drafts of all financing documents and legal opinions should be sent to the closing coordinator assigned to
the financing. All drafts of financing documents including but not limited to the Official Statement and any legal
opinion relating to the issuance of the Bonds, to the extent not already provided, should be submitted for AMBAC
Indemnity review as available but in no event later than five (5) business days prior to closing. Please note that bond
counsel's approving opinion must be acceptable to AMBAC Indemnity and shall be either addressed to AMBAC
Indemnity or delivered with a reliance letter addressed to AMBAC Indemnity. Please provide a copy of the closing
index as soon as practicable.
4. Lastly, 1WO final UNBOUND transeripts must be sent to your closing coordinator as soon as possible after
dosing.
If you have any questions, please do not hesitate to contact Janine Feudi or me.
Sincerely,
~ !I
'I /f.j f"
v.~/J j;. ~?t~ivt~
rt M Sakariassen
Client Information Services
Enclosures
c::c: Coleman Corden
Morgan Stanley & Co., IDe.
Sun Bank Center
200 South Orange Avenue
Suite 1440
Orlando, FL 32801
Robert J. Nacb1inger
Fmance Director
City afMiami Beach
City Hall
1700 Convention Center Drive
Miami Beach, FL 33139
Shelley Stein, AMBAC
2
AMBAC INDEMNITY CORPORATION - coMMITMENT FOR SURETY BOND
Issuer: CITY OF MIAMI BEACH, FLORIDA
Commitment Number:
SB13200
Date of Commitment:
FebruaIy IS, 1996
ExpiJation Date:
September 1, 2005
Bonds: Surety Bond Amount for the Taxable Special Obligation
Bonds, Series 2005, dated September 1, 2005.
Premium: $20,000.00
AMBAC Indemnity Corporation r AMBAC" or "AMBAC lJvIemnity"), A W'JSCX)I1Sin Stock Insurance Company, hereby
oommits to issue a Surety Bond (the "Commitmentj rdating to the Debt Service Reserve Fund for the above-described
debt obligations (the "Bondsj, subnAri::I11y in the form a~bed hereto, subject to the terms and oonditions oontained
herein or added hereto (see oonditions set forth herein). '
To c:xtcud this Commitment after the expiration date set forth abcM, :m 0131 (suhsrquentIy mnfirmto.d in writing) or
written request for renewal must be submitted to AMBAC at least one "K:i~ day prior to such expiJation dare.
AMBAC resezves the right to refuse to grant a renewal or may I'C:IJe'W this Commitn1f!rlt subject to additional terms and
oonditiODS.
The Surety Bond (the "Suretyj shall be issued if the following oonditions are c:llricfied.
1.
AMBAC shall receive an opinion of counsel or a certificate of an officer of the Issuer or ultimate obligor
stating that the information supplied to AMBAC in order to obCain the Surety and the documents to be
exec:utm 3Dd deliwemi in mnl1l"rtion with 1M i~lana: and sale aflbc Bo~ do not oontain any untrue
or misleading st:ltP.mf!nt of a material f&:t. and do DOt :filil to stili: a material filet n:quired to be stlted
therein or ~ry in order to make the information contained therein not misleading.
3.
No event sbal1 oa:ur which would permit any pun;haser of the Bonds, otherwise required, not to be
n:quired to purchase the Bonds on the date scheduled for the issuance and delivery thereof:
There shall be no material change in or a1recting the Bonds, the Issuer or ultimate obligor (mcluding,
~not~~~the~tyutheBo~the~~~~~ifany~any~~~
document), including any financial statements therein contained, the financing documents or any legal
opinions to be executed and delivered in connection with the ~ and sale of the Bonds. or any
other information submitted to AMBAC in order to obtain the Surety, from the descriptions thereof
provided to AMBAC at any time prior to the issuance of the Bonds and there shall not have oc:x:um:d or
oome to the attention of the issuer or pun;haser any material change of fact or law adveIse to the
interests of AMBAC, unless approved by AMBAC in writing.
2.
4.
Unless expressly waived in whole or in part by AMBAC. the fillancing documents shaII oontain a) the
tenDS and provisions provided in the AMBAC STANDARD PACKAGE transmitted herewith, and b)
any provisions or comments given orally by AMBAC.
5.
No later than five (5) business days prior to closing, AMBAC shall be provided with:
(a) proposed copies of all fimlncmg docurnett~ and
(b) the proposed official statement (or any similar disclosure docuDJent); and
(c) the proposed various legal opinions delivered in oonnection with the issna11Ce and sale of the
Bonds, including, without limitation, the UDqlIlIlified approving opinion of bond counsel
rendered by a Jaw finn acceptable to AMBAC. Tbe form ofbood oounsel's approving opinion
must be acceptIble to AMBAC. The form ofbond COUDSCl's approving opinion sball indicate
that the Issuer must comply with a:rtain <XJVeII3IItS under and pursuant to the Int.ema1
Revenue Code of 1986, as ~~ and that the Issuer has the legal power tp CX)JDPly with
such covenants. AMBAC shall also be provided with ~ copies of all fimmcing
documents, including but DOt limited to the Official StJtP.meftt (or any similar disclosure
doo1mP-rlt) and the various legal opiniou rendered. The exrx:uted opinion of bond oounsel
shall be addressed to AMBAC or in lieu tben:t( a letter sbal1 be provided to AMBAC to the
effect that AMBAC may rely on such opinion as if it were addressed to AMBAC and such
letter shall be delivered with an executed opinion; and
(d) any provisiou oftbe Purchase Conttact or Bond Purchase Agreement referencing AMBAC or
the issuer of the Sun:ty in geueral. If such provisiou are not received in a timely manner or if
provisiou are inserted in the Purchase Contract or Bond Purchase Agreement without
AMBAC Itvlemnity's knowledge, compliance with such provisions may not be possible; and
(e) a letter from bond counsel or counsel to the purchaser or otherwise from another counsel
acceptable to AMBAC to the effect that the fimll1cing docuJt1ent$, the Official Statement (or
any similar disclosure document) and the various legal opiniODS executed and delivered in
oonnection with the iSSU3J1CC and sale of the Bonds, are substmtia11y in the forms previously
submitted to AMBAC for review, with only such amendments, modificatiou or deletions as
may be approved by AMBAC; and
(f) a copy of any insurance policy, surety bond, guaranty or ind/"lllnification or any other policy,
oontract or agreement which provides for payment of all or any portion of the debt, the costs of
reconstruction, the 1<& of business income or in any way secures, ensures or enhances the
income stream anticipated to pay the Bonds; and
(g) a certified or cashier's check for or evidence of wire transfer of an amount equal to the payment
for the Surely at the time of the issuance and delivery of the Bonds. Wue transfer shall be used
for any payment for the Surety in an amount greater than $100,000; and
(11) the final debt seIVice schedule.
6.
AMBAC Indemnity must receive at least (5) business days prior to closing an opinion addressed to
AMBAC by counsel acceptable to AMBAC that the Guaranty Agreement is a legal. valid and binding
obligation of the Obligor thereat: enforceable in accordance with its tenDS.
~-#-
2
AMBAC@
.-\,\IBAC Inc.lemnit\. Corroration
~ One Srate Street Plaz:!
'\e\\" York. '\e\\" Yorl-; [()(}().f
( 212) ()()S-(l51() Lt:\: 212) ';I)l)-L) 1 L)u
November 20,1995
AMBAC INDEMNITY STANDARD PACKAGE
FOR TRANSACTIONS SUPPORTED BY AN
AMBAC INDEMNITY CORPORATION
SURETY BOND WITHOUT DEPOSIT AGREEMENT
TO: Issuer, Issuer's Counsel, Managing Underwriter, Bond Counsel and Underwriter's Counsel
RE: Preparation of Financing Documents for Issues the Debt Service Reserve Fund of which is
to be supported by an AMBAC Indemnity Corporation ("AMBAC Indemnity") Surety Bond
The attached materials have been prepared to assist you in the preparation of documents for issues
the Debt Service Reserve Fund of which is to be supported by an AMBAC Indemnity Surety Bond.
Please modify the attached exhibits where appropriate. If desired. these provisions can be
incorporated into one section entitled "Debt Service Reserve Fund AMBAC Indemnity Surety
Bond" within the applicable Indenture, Resolution, Ordinance, Order or any other operative
financing document (such applicable financing document will be referred to herein as the
"Financing Document"). Please be advised that the provisions contained in this package are in
addition to the conditions listed on the commitment for the AMBAC Surety Bond and any other
comments or changes that may be required by the AMBAC Indemnity personnel working on this
financing. This package and the documents contained herein are not for use in Texas or
Virginia financings. If you have any questions, please call one of the following persons: Eileen L.
Kirchoff, Mary P. McKeon, Jerry H. Pisecki, Karl T. Molin, or Kevin J. Doyle.
. Definitions (Exhibit A).
. AMBAC Indemnity consent required for changes to underlying documentation and
exercise of remedies upon defuult (Exhibit B).
. Infonnation to be given to AMBAC Indemnity (Exhibit C).
. Description of AMBAC Indenmity payment procedure (Exhibit D).
. AMBAC Indemnity Official Statement Disclosure (Exhibit E).
· Fonn of AMBAC Indemnity Opinion (Exhibit F).
. Fonn of Surety Certificate of Bond Insurer (Exhibit G)
· Fonn of Surety Bond (Exhibit H).
. Fonn of Guaranty Agreement (Exhibit n.
. AMBAC Indenmity Corporation Wiring Insbuctions (Exhibit 1)
EXHIBIT A
DEFINITIONS
The following defmitions are those which AMBAC recommends for the Financing Document:
"AMBAC Indemnity" shall mean AMBAC Indemnity Corporation, a Wisconsin domiciled stock
msurance company.
"Surety Bond" shall mean the surety bond issued by AMBAC Indemnity guaranteeing certain
payments into the Debt Service Reserve Fund with respect to the Bonds as provided therein and
subject to the limitations set forth therein.
2
EXHIBIT B
AMBAC CONSENT LANGUAGE
AMBAC requires that the Financing Document contain the following consent language:
A. Consent of AMBAC Indemnity.
Any provision of this [Financing Document] expressly recognizing or granting rights in or to
AMBAC Indemnity may not be amended in any manner which affects the rights of AMBAC
Indemnity hereunder without the prior written consent of AMBAC Indemnity.
B. Consent of AMBAC Indemnity in Addition to Bondholder Consent.
Unless otherwise provided in this Section, AMBAC Indemnity's consent shall be required in
addition to Bondholder consent, when required, for the following purposes: (i) execution and
delivery of any supplemental [Financing Document] or any amendment, supplement or change to or
modification of the [Loan Agreement, Lease Agreement, etc.] (ii) removal of the Trustee or Paying
Agent or selection and appointment of any successor trustee or paying agent; and (iii) initiation or
approval of any action not described in (i) or (ii) above which requires Bondholder consent.
3
EXHIBIT C
INFORMATION TO BE GIVEN TO AMBAC INDEMNITY
AMBAC requires that the following notice proVISIOns be incorporated into the Financing
Document:
A. While the Surety Bond is in effect, the Issuer. or the Trustee, as appropriate, shall furnish to
AMBAC Indemnity:
(a) as soon as practicable after the filing thereof, a copy of any financial statement of the Issuer
and a copy of any audit and annual report of the Issuer;
(b) a copy of any notice to be given to the registered owners of the Bonds and any certificate
rendered pursuant to this [Financing Document] relating to the security for the Bonds; and
(c) such additional information it may reasonably request.
B. The Issuer will permit AMBAC Indemnity to discuss the affairs, finances and accounts of the
Issuer or any information AMBAC Indemnity may reasonably request regarding the security for
the Bonds with appropriate officers of the Issuer. The Trustee or Issuer, as appropriate, will
permit AMBAC Indemnity to [have access to the Project and] have access to and to make copies of
all books and records relating to the Bonds at any reasonable time.
C. Notwithstanding any other provision of this [Financing Document], the Trustee shall
inunediately notify AMBAC Indemnity if at any time there are insufficient moneys to make any
payments of principal and interest as required and immediately upon the occurrence of (i) any event
of default hereunder or (ii) any payment default under any related security agreement.
D. To the extent that the Issuer has entered into a continuing disclosure agreement with respect to
the Bonds, AMBAC Indemnity shall be included as party to be notified.
.or appropriate obligor on the Bonds.
4
EXHIBIT D
PAYMENT PROCEDURE PURSUANT TO THE SURETY BOND
The following language sets out standard procedure for payments under the Surety Bond.
Modifications should be made to take into account definitions used in the Financing Document
(e.g. Debt Service Reserve Fund, Revenues, Additional Funding Instrument). Specific or different
payment procedure required by the Financing Document must be discussed with AMBAC
Indemnity.
A. As long as the Surety Bond shall be in full force and effect, the Issuer, Trustee and Paying
Agent, if appropriate, agree to comply with the folIowing provisions:
(a) In the event and to the extent that moneys on deposit in the Fundi Account,
plus all amounts on deposit in and credited to the [Debt Service Reserve Fund] in excess of the
amount of the Surety Bond, are insufficient to pay the amount of principal and interest coming due,
then upon the later of: (i) one (1) day after receipt by the General Counsel of AMBAC of a demand
for payment in the fonn attached to the Surety Bond as Attaclunent 1 (the "Demand for Payment"),
duly executed by the Paying Agent certifying that paYment due under the [Financing Document]
has not been made to 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 General Counsel of AMBAC,
AMBAC wilI make a deposit of funds in an account with the Paying Agent or its successor, in
New York, New York, sufficient for the payment to the Paying Agent, of amounts which are then
due to the Paying Agent under the (Financing Document] (as specified in the Demand for Payment)
up to but not in excess of the Surety Bond Coverage, as defined in the Surety Bond; provided,
however, that in the event that the amount on deposit in, or credited to, the [Debt Service Reserve
Fund], in addition to the amount available under the Surety Bond, includes amounts available
under a letter of credit, insurance policy, surety bond or other such funding instrument (the
"Additional Funding Instrument"), draws on the Surety Bond and the Additional Funding
Instrument shall be made on a pro rata basis to fund the insufficiency.
(b) the Trustee, or Paying Agent, if appropriate, shall, after submitting to AMBAC Indemnity the
Demand for Payment as provided in (a) above, make available to AMBAC Indemnity all records
relating to the Funds and Accounts maintained under this [Financing Document].
(c) the Trustee, or Paying Agent, if appropriate, shall, upon receipt of moneys received from the
draw on the Surety Bond, as specified in the Demand for Payment, credit the Debt Service Reserve
Fund to the extent of moneys received pursuant to such Demand.
(d) the (Debt Service Reserve Fund] shall be replenished in the following priority: (i) [principal
and interest on the Surety Bond shall be paid from first available Revenues] [principal and interest
on the Surety Bond and on the Additional Funding Instrument shall be paid from first available
Revenues on a pro rata basis]; (ii) after all such amounts are paid in full, amounts necessary to
fund the (Debt Service Reserve Fund] to the required level, after taking into account the amounts
available under the Surety Bond [and the Additional Funding Instrument] shall be deposited from
next available Revenues.
5
EXHIBIT E
OFFICIAL STATEMENT DISCLOSURE FOR
AMBAC INDEMNITY CORPORATION SURETY BOND
Security For The Bonds
Debt Service Reserve Fund AMBAC Indemnity Surety Bond
The [Financing Document] requires the establishment of a Debt Service Reserve Fund in an
amount equal to $ >. The [Financing Document] authorizes the Issuer to obtain a Surety.Bond in
place of fully funding the Debt Service Reserve Fund. Accordingly, application has been made to
AMBAC Indemnity Corporation ("AMBAC Indemnity") for the issuance of a Surety Bond for the
purpose offunding [a portion of] the Debt Service Reserve Fund (see"1HE [Financing Document]
> " herein). The Bonds will only be delivered upon the issuance of such Surety Bond. The
premium on the Surety Bond is to be fully paid at or prior to the issuance and delivery of the
Bonds. The Surety Bond provides that upon the later of (i) one (1) day after receipt by AMBAC
Indenmity of a demand for payment executed by the Paying Agent certifying that provision for the
payment of principal of or interest on the Bonds when due has not been made or (ii) the interest
payment date specified in the Demand for Payment submitted to AMBAC Indemnity, AMBAC
Indemnity will promptly deposit funds with the Paying Agent sufficient to enable the Paying Agent
to make such payments due on the Bonds, but in no event exceeding the Surety Bond Coverage, as
defined in the Surety Bond.
Pursuant to the terms of the Surety Bond, the Surety Bond Coverage is automatically reduced to
the extent of each payment made by AMBAC Indemnity under the terms of the Surety Bond and
the Issuer is required to reimburse AMBAC Indemnity for any draws under the Surety Bond with
interest at a market rate. Upon such reimbursement, the Surety Bond is reinstated to the extent of
each principal reimbursement up to but not exceeding the Surety Bond Coverage. The
reimbursement obligation of the Issuer is subordinate to the Issuer's obligations with respect to the
Bonds.
In the event the amount on deposit, or credited to the Debt Service Reserve Fund, exceeds the
amount of the Surety Bond, any draw on the Surety Bond shall be made only after all the funds in
the Debt Service Reserve Fund have been expended. In the event that the amount on deposit in, or
credited to, the [Debt Service Reserve Fund], in addition to the amount available under the Surety
Bond, includes amounts available under a letter of credit, insurance policy, surety bond or other
such funding instrument (the "Additional Funding Instrument"), draws on the Surety Bond and the
Additional Funding Instrument shall be made on a pro rata basis to fund the insufficiency. The
[Financing Document] provides that the [Debt Service Reserve Fund] shall be replenished in the
following priority: (i) [principal and interest on the Surety Bond shall be paid from first available
Revenues] [principal and interest on the Surety Bond and on the Additional Funding Instrument
shall be paid from first available Revenues on a pro rata basis]; (ii) after all such amounts are paid
in full, amounts necessary to fund the [Debt Service Reserve Fund] to the required level, after
taking into account the amounts available under the Surety Bond [and the Additional Funding
Instrument] shall be deposited from next available Revenues.
The Surety Bond does not insure against nonpayment caused by the insolvency or negligence of the
Trustee or the Paying Agent.
6
AMBAC INDEMNITY CORPORATION
AMBAC Indemnity Corporation ("AMBAC Indemnity") is a Wisconsin-domiciled stock insurance
corporation regulated by the Office of the Commissioner of Insurance of the State of Wisconsin
and licensed to do business in 50 states, the District of Colwnbia, and the Commonwealth of
Puerto Rico, with admitted assets of approximately $2,292,000,000 (unaudited) and statutory
capital of approximately $1,283,000,000 (unaudited) as of September 30, 1995. Statutory capital
consists of AMBAC Indemnity's policyholders' surplus and statutory contingency reserve.
AMBAC Indemnity is a wholly owned subsidiary of AMBAC Inc.. a 100% publicly-held
company. Standard & Poor's Ratings Services, a division of The McGraw-Hili Companies, Inc.,
Moody's Investors Service and Fitch Investors Service, L.P. have each assigned a triple-A claims-
paying ability rating to AMBAC Indemnity.
AMBAC Indemnity has entered into pro rata reinsurance agreements under which a percentage of
the insurance underwritten pursuant to certain municipal bond insurance programs of AMBAC
Indemnity has been and will be asswned by a number of foreign and domestic unaffiliated
remsurers.
AMBAC Indemnity has obtained a ruling from the Internal Revenue Service to the effect that the
insuring of an obligation by AMBAC Indemnity will not affect the treabnent for federal income tax
purposes of interest on such obligation and that insurance proceeds representing maturing interest
paid by AMBAC Indemnity under policy provisions substantially identical to those contained in its
municipal bond insurance policy shall be treated for federal income tax purposes in the same
manner as if such payments were made by the issuer of the Bonds. [THE FOLLOWING MUST
BE INCLUDED IN ANNUAL APPROPRIATION LEASE TRANSACTION: No
representation is made by AMBAC Indemnity regarding the federal income tax treabnent of
payments that are made by AMBAC Indemnity under the tenns of the Policy due to
nonappropriation offunds by the Lessee]
AMBAC Indemnity makes no representation regarding the Bonds or the advisability of investing in
the Bonds and makes no representation regarding, nor has it participated in the preparation of: the
Official Statement other than the infonnation supplied by AMBAC Indemnity and presented under
the heading " ..
A V AILAB~E INFORMATION
The parent company of AMBAC Indemnity, AMBAC Inc. (the "Company''). is subject to the
informational requirements of the Securities Exchange Act of 1934. as amended (the "Exchange
Act''), and in accordance therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission''). Such reports, proxy statements and
other information may be inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 and at the Commission's regional
offices at 7 World Trade Center, New York. New York 10048 and Northwestern Atriwn Center,
500 West Madison Street, Suite 1400. Chicago, Illinois 60661. Copies of such material can be
obtained from the public reference section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. In addition, the aforementioned material may also be
inspected at the offices of the New York Stock Exchange, Inc. (the ''NYSE'') at 20 Broad Street,
New York, New York 10005. The Company's Common Stock is listed on the NYSE.
7
Copies of AMBAC Indemnity's financial statements prepared in accordance with statutory
accounting standards are available from AMBAC Indemnity. The address of AMBAC Indemnity's
administrative offices and its telephone number are One State Street Plaza, 17th Floor, New York,
New York, 10004 and (212) 668 0340.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Conunission (File No. 1-10777) are
incorporated by reference in this Official Statement:
(1) The Company's Annual Report on Form IO-K for the fiscal year ended. December 31,
1994, filed with the Conunission on March 31, 1995;
(2) The Company's Quarterly Report on Form 10-0 for the quarter ended. September 30,
1995, filed with the Commission on November 14, 1995; and
(3) The Company's Current Report on Form 8-K, filed with the Commission on July 18,
1995.
All docwnents subsequently filed by the Company pursuant to the requirements of the Exchange Act
after the date of this Official Statement will be available for inspection in the same manner as described
above in "A V AILABLE INFORMATION".
8
EXHIBIT F
FORM OF AMBAC INDEMNITY OPINION
>, 199
Ladies and Gentlemen:
This opinion has been requested of the undersigned, a Vice President and an Assistant General
Counsel of AMBAC Indemnity Corporation, a Wisconsin stock insurance company ("AMBAC
Indemnity''), in connection with the issuance by AMBAC Indemnity of a certain Surety Bond,
effective as of the date hereof (the "Surety''), guaranteeing payment ofan amount equal to $> into
the Debt Service Reserve Fund for the >, dated> (the "Bonds'').
In connection with my opinion herein. I have examined the Surety, such statutes, documents and
proceedings as I have considered necessary or appropriate in the circumstances to render the
following opinion, including, without limiting the generality of the foregoing, certain statements
contained in the Official Statement of the Issuer dated >, 199-, relating to the Bonds (the
"Official Statement'') under the headings ''>'' and ''>''.
Based upon the foregoing and having regard to legal considerations I deem relevant, I am of the
opinion that:
I. AMBAC Indemnity is a stock insurance company duly organized and validly existing under the
laws of the State of Wisconsin and duly qualified to conduct an insurance business in the State of
>.
2. AMBAC Indemnity has full corporate power and authority to execute and deliver the Surety and
the Surety has been duly authorized, executed and delivered by AMBAC Indemnity and constitutes
a legal, valid and binding obligation of AMBAC Indemnity enforceable in accordance with its
terms except to the extent that the enforceability (but not the validity) of such obligation may be
limited by any applicable bankruptcy, insolvency, liquidation, rehabilitation or other similar law or
enactment now or hereafter enacted affecting the enforcement of creditors' rights.
3. The execution and delivery by AMBAC Indemnity of the Surety will not, and the consummation
of the transactions contemplated thereby and the satisfaction of the terms thereof will not, conflict
with or result in a breach of any of the terms, conditions or provisions of the Certificate of
Incorporation or By Laws of AMBAC Indemnity, or any restriction contained in any contract,
agreement or instrument to which AMBAC Indemnity is a party or by which it is bound or
constitute a default under any of the foregoing.
4. Proceedings legally required for the issuance of the Surety have been taken by AMBAC
Indemnity and licenses, orders, consents or other authorizations or approvals of any governmental
boards or bodies legally required for the enforceability of the Surety have been obtained; any
proceedings not taken and any licenses, authorizations or approvals not obtained are not material to
the enforceability of the Surety.
9
5. The statements contained in the Official Statement under the heading ">," insofar as such.
statements constitute sununaries of the matters referred to therein, accurately reflect and fairly
present the information purported to be shown and, insofar as such statements describe AMBAC
Indemnity, fairly and accurately describe AMBAC Indemnity.
The opinions expressed herein are solely for your benefit, and may not be relied upon
by any other person.
Very truly yours,
Vice President and
Assistant General Counsel
10
EXHIBIT G
SURETY CERTIFICATE OF BOND INSURER
In connection with the issuance of $> in aggregate principal amount of the > (the
"Issuer"), >, dated > (the "Bonds"), AMBAC Indemnity Corporation ("AMBAC") is issuing a
surety bond (the "Surety Bond"). The Surety Bond guarantees payment of an amount not to
exceed $ to fund the Reserve Fund Requirement (as defined in the Surety Bond), all as
more fully set out in the Surety Bond.
On behalf of AMBAC, the undersigned hereby certifies that:
(i) the Surety Bond is an unconditional and recourse obligation of AMBAC to pay the
scheduled payments of interest and principal on the Bonds in the event a draw on the Reserve Fund
is required under the {ResolutionlIndenture} and the amount credited to such Fund is insufficient
to make such payment (up to but not in excess of the Surety Bond Coverage as defined in the
Surety Bond);
(ii) the premium of $> for the Surety Bond was detennined in ann's length negotiations in
accordance with our standard procedures, is required to be paid as a condition to the issuance of
the Surety Bond, and represents a reasonable charge for the transfer of credit risk;
(iii) no portion of such premium represents a payment for any direct or indirect services
other than the transfer of credit risk, including costs of underwriting or remarketing the Bonds or
the cost of insurance for casualty of Bond financed property;
(iv) we are not co-obligors on .the Bonds and we do not reasonably expect that we will be
called upon to make any payment under the Surety Bond;
(v) the Issuer is not entitled to a refund of any portion of the premium for the Surety Bond
in the event that the Bonds are retired prior to their stated maturity; and
(vi) we do not reasonably expect that the project will not be completed or that the issuer
will not satisfy the temporary period requirements of Treasury Regulation Section 1.148-2(e)(2).
IN WITNESS WHEREOF, AMBAC Indemnity Corporation has caused this certificate
to be executed in its name on this > day of>, 19> by one of its officers duly authorized as of such
date.
AMBAC INDEMNITY CORPORATION
By:
>
Vice President and
Assistant General Counsel
11
EXHIBIT H
SURETY BOND
AMBAC Indemnity Corporation
One State Street Plaza
New York, New York 10004
Telephone: (212) 668-0340
Policy No. 5B BE
AMBAC Indemnity Corporation ("AMBAC''), in consideration of the payment of the premium and
subject to the tenns of this Surety Bond, hereby unconditionally and irrevocably guarantees the full
and complete payments which are to be applied to payment of principal of and interest on the
Obligations (as hereinafter defined) and which are required to be made by or on behalf of the (the
"Obligor'') to (the "Paying Agent/frustee'') as such payments are due
by the Obligor but shall not be so paid pursuant to a resolution of the City Council of the Obligor
authorizing the issuance of $ (the "Obligations'') of said city and providing the terms and
conditions for the issuance of said Obligations (the "ResolutionlIndenturelOrdinance''); provided
that the amount available at any particular time to be .paid to the Paying Agent under the terms
hereof shall not exceed the Surety Bond Coverage, defined herein as the lesser of $ or
the [Debt Service Reserve Fund Requirement for the Obligations, as that term is defined in the
Resolution] (the "Reserve Requirement"). 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 Obligor or any designee of the Obligor
for such purpose. The term "Owner" shall not include the Obligor or any person or entity whose
obligation or obligations by agreement constitute the underlying security or source of payment of
the Obligations.
2. Upon the later of: (i) one (I) day after receipt by the General Counsel of AMBAC of a demand
for payment in the form attached hereto as Attachment I (the "Demand for Payment''), duly
executed by the Paying Agent certifying that payment due as required by the Resolution has not
been made to 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 General Counsel of AMBAC, AMBAC
will make a deposit of funds in an account with the Paying Agent or its successor, in [City/State]
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) up to but not in excess of the Surety Bond Coverage.
3. Demand for Payment hereunder may be made by prepaid telecopy, telex, or telegram of the
executed Demand for Payment c/o the General Counsel of AMBAC. If a Demand for Payment
made hereunder does not, in any instance conform to the tenns and conditions of this Surety Bond,
AMBAC 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.
12
4. The amount payable by AMBAC under this Surety Bond pursuant to a 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 AMBAC hereunder and will be reinstated to
the extent of each reimbursement of AMBAC by the Obligor pursuant to Article II of the Guaranty
Agreement, dated as of the date of the Obligations, by and between AMBAC and the Obligor (the
"Guaranty Agreement''); provided. that in no event shall such reinstatement exceed the Surety
Bond Coverage. AMBAC 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 Guaranty Agreement and such reinstatement shall be effective as of
the date AMBAC gives such notice. The notice to the Paying Agent will be substantially in the
fonn attached hereto as Attaclunent 2. The Surety Bond Coverage shall be automatically. reduced
to the extent that the Reserve Requirement for the Obligations is lowered or reduced pursuant to
the tenns of the Resolution.
5. Any service of process on AMBAC may be made to AMBAC or the office of the General
Counsel of AMBAC and such service of process shall be valid and binding as to AMBAC. During
the tenn of its appointment, General Counsel will act as agent for the acceptance of service of
process and its offices are located at One State Street Plam, New York. New York 10004.
6. This Surety Bond is noncancelable for any reason. The tenn of this Surety Bond shall expire on
the earlier of (i) (the maturity date of the Obligations) or (n) the date on which the
Obligor, to the satisfaction of AMBAC, has made all payments required to be made on the
Obligations pursuant to the Resolution. The premium on this Surety Bond is not refundable for
any reason, including the payment prior to maturity of the Obligations.
7. This Surety Bond shall be governed by and interpreted under the laws of the State of Wisconsin
[or Minnesota, Vermont, North Carolina, South Carolina or Washington, for financings in
those states], and any suit hereunder [seeking specific performance, for financings in Florida] in
connection with any payment may be brought only by the Paying Agent within one year [two years
in Minnesota, three years in Maryland, five years in Kansas and five years in Florida] after (i)
a Demand for Payment, with respect to such payment, is made pursuant to the tenns of this Surety
Bond and AMBAC 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 AMBAC a Demand
for Payment pursuant to the terms of this Surety Bond, whichever is earlier.
8. One of the following paragraphs may apply:
ADDITIONAL PARAGRAPH FOR CALIFORNIA TRANSACTIONS:
In the event that AMBAC Indemnity were to become insolvent, any claims arising under the Surety
Bond would be excluded from coverage by the California Insurance Guaranty Association,
established pursuant to the laws of the State of California.
ADDITIONAL PARAGRAPH FOR NEW YORK TRANSACTIONS:
The insurance provided by the Surety Bond is not covered by the property/casualty insurance
security fund specified by the insurance laws of the State of New York.
13
ADDITIONAL PARAGRAPH FOR FLORIDA TRANSACTIONS:
The insurance provided by the Surety Bond is not covered by the Florida Insurance Guaranty
Association.
IN WITNESS WHEREOF, AMBAC has caused this Surety Bond to be executed and attested on
its behalf this day of, 19
AMBAC Indemnity Corporation
Attest:
Assistant Secretary
By:
Vice President and
Assistant General Counsel
By:
[Countersignature Agent, ifapplicable]
14
Attachment 1
Surety Bond No.SB BE
DEMAND FOR PAYMENT
, 19
AMBAC Indemnity Corporation
One State Street Plaza
New Y orlc, New York 10004
Attention: General COWlSel
Reference is made to the Surety Bond No. SB BE (the "Surety Bond") issued by AMBAC
Indemnity Corporation ("AMBAC"). 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) Payment by the Obligor to the Paying Agent was due on _ [a date not less than one (1)
day pnor to the applicable payment date for the Obligations] under the
. attached hereto as Exhibit A, in an amount equal to $ (the
"Amount Due"). The Amount Due is payable to the Owners of the Obligations on
(b) $ has been deposited in the [fund/account] from moneys paid by the Obligor
or from other funds legally available to the Paying Agent for payment to the Owners of the
Obligations, which amount is $ less than the Amount Due (the "Deficiency").
(c) 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 (up to but not in excess of the
Surety Bond Coverage) be made by AMBAC 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]
[PA YING AGENT]
By:
Its:
15
Attachment 2
Surety Bond No. SB BE
NOTICE OF REINSTATEMENT
, 19
[paying Agent]
[Address]
Reference is made to the Surety Bond No. SB BE (the "Surety Bond'') issued by AMBAC
Indemnity Corporation ("AMBAC''). The tenns which are capitalized herein and not otherwise
defined have the meanings specified in the Surety Bond unless the context otherwise requires.
AMBAC hereby delivers notice that it is in receipt of payment from the Obligor pursuant to Article
II of the Guaranty Agreement and as of the date hereof the Surety Bond Coverage is $ ,
subject to a reduction as the Reserve Requirement for the Obligations is lowered or reduced
pursuant to the tenns of the Resolution. .
AMBAC INDEMNITY CORPORATION
Attest:
Title
By:
Title
16
EXHIBIT I
GUARANTY AGREEMENT
GUARANTY AGREEMENT dated as of , 19 by and between
, a public body corporate organized and existing under the laws of the State of (the
"Obligor")~ and AMBAC INDEMNITY CORPORATION ("AMBAC"), a Wisconsin domiciled
stock insurance company.
WITNESSETH:
WHEREAS, the Obligor has or will issue
(the "Obligations"); and
WHEREAS, AMBAC will issue its Surety Bond (the "Surety Bond"), substantially in the
form set forth in Annex A to this Agreement, guaranteeing certain payments by the Obligor subject
to the terms and limitations of the Surety Bond; and
WHEREAS, to" induce AMBAC to issue the Surety Bond, the Obligor has agreed to pay
the premium for such Surety Bond and to reimburse AMBAC for all payments made by AMBAC
under the Surety Bond from Legally Available Funds, all as more fully set forth in this Agreement;
and
WHEREAS, the Obligor understands that AMBAC expressly requires the delivery of this
Agreement as part of the consideration for the execution by AMBAC 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 Obligor and AMBAC agree as follows:
ARTICLE I
DEFINITIONS; SURETY BOND
Section 1.01. Definitions. Except as otherwise expressly provided herein or unless the context
otherwise requires, the terms which are capitalized herein shall have the meanings specified in
Annex B hereto.
Section 1.02. Suretv Bond.
(a) AMBAC will issue the Surety Bond in accordance with and subject to the terms and conditions
of the Commitment.
(b) The maximum liability of AMBAC under the Surety Bond and the coverage and term thereof
shall be subject to and limited by the Surety Bond Coverage and the terms and conditions of the
Surety Bond.
17
(c) Payments made under the Surety Bond will reduce the Surety Bond Coverage to the extent of
that payment, provided that the Surety Bond Coverage shall be automatically reinstated to the
extent of the reimbursement of principal by the Obligor of any payment made by AMBAC.
AMBAC shall notify the Paying Agent in writing no later than the fifth (5th) day following the
reimbursement by the Obligor that the Surety Bond has been reinstated to the extent of such
reimbursement.
Section 1.03. Premium. In consideration of AMBAC agreeing to issue the Surety Bond
hereunder, the Obligor hereby agrees to payor cause to be paid from Legally Available Funds the
premium set forth in the Commitment.
Section 1.04. Certain Other Expenses. The Obligor will pay all reasonable fees and
disbursements of AMBAC's counsel related to any modification of this Agreement or the Surety
Bond.
ARTICLE II
REIMBURSEMENT OBLIGATIONS OF OBLIGOR AND SECURITY THEREFORE
Section 2.01. Reimbursement for Pavments Under the Surety Bond and Expenses.
(a) The Obligor will reimburse AMBAC, from LegaIly Available Funds within the
Reimbursement Period, without demand or notice by AMBAC to the Obligor 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 by the Obligor at the Effective Interest
Rate. The Obligor agrees that it shaU make monthly level principal repayments for each Surety
Bond Payment during the Reimbursement Period. Interest on each Surety Bond Payment shall be
paid monthly during the Reimbursement Period. To the extent that interest payments due
hereunder are not paid on a monthly basis, or are not paid as each principal repayment is made,
interest shall accrue on such unpaid amounts at a rate equal to the Effective Interest Rate.
(b) The Obligor also agrees to reimburse AMBAC, from LegaIly Available Funds, immediately
and unconditionally upon demand for all reasonable expenses incurred by AMBAC in connection
with the Surety Bond and the enforcement by AMBAC of the Obligor's obligations under this
Agreement together with interest on all such expenses from and including the date which is 30 days
from the date a statement for such expenses is received by the Obligor incurred to the date of
payment at the rate set forth in subsection (a) of this Section 2.01.
Section 2.02. Allocation of Pavments. AMBAC and the Obligor hereby agree that each
repayment of principal received by AMBAC from or on behalf of the Obligor as a reimbursement
to AMBAC as required by Section 2.01(a) hereof shall be applied to reinstate all or a portion of
the Surety Bond Coverage to the extent of such repayment. Any interest payable pursuant to
Section 2.01(a) hereof shall not be applied to the reinstatement of any portion of the Surety Bond
Coverage.
18
Section 2.03. Security for Payments: Instruments of Further Assurance. To the extent, but only to
the extent, that the Resolution. pledges to the Owners or any paying agent therefor, or grants a
security interest or lien in or on any collateral property, revenue or other payments ("Collateral and
Revenues") in order to secure the Obligations or provide a source of payment for the Obligations,
the Obligor hereby grants to AMBAC a security interest in or lien on. as the case may be, and
pledges to AMBAC all such Collateral and Revenues as security for payment of all amounts due
hereunder, 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 and any paying agent therefor in such
Collateral and Revenues. The Obligor 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 sball reasoDably be
requested by AMBAC 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 AMBAC under this Section 2.03.
Section 2.04. Unconditional Oblieation. The obligations of the Obligor hereunder are absolute
and unconditional and will be paid or perfonned strictly in accordance with this Agreement,
irrespective of:
(a) any lack of validity or enforceability of. or any amendment or other modification of. or waiver
with respect to the Resolution or the Obligations;
(b) any exchange, release or nonperfection of any security interest in property securing the
Obligations or this Agreement or any obligations hereunder;
(c) any circumstances which might otherwise constitute a defense available to, or discharge of. the
Obligor with respect to the Obligations;
(d) whether or not such Obligations are contingent or matured, disputed or undisputed, liquidated
or unliquidated.
ARTICLE III
EVENTS OF DEFAULT; REMEDIES
Section 3.01. Events of Default. The following events shall constitute Events of Default
hereunder:
(a) The Obligor shall fail to pay to AMBAC any amount payable under Sections 1.04 and 2.01
hereofand such failure shall have continued for a period in excess of the Reimbursement Period;
(b) Any material representation or warranty made by the Obligor hereunder or under the
Resolution or any statement in the application for the Surety Bond or any report, certificate,
financial statement or other instrument provided in coMection with the Conunitment, the Surety
Bond or herewith shall have been materially false at the time when made;
19
(c) Except as otherwise provided in this Section 3.0 I, the Obligor shall fail to perform any of i~
other obligations under this Agreement or hereunder, provided that such failure continues for more
than thirty (30) days after receipt by the Obligor of notice of such failure to perform;
(d) The Obligor 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, (ill) apply for or
consent to the appointment of a receiver, paying agent, custodian. sequestrator or similar official
for the Obligor or for a substantial part of its property, (iv) file an 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
(e) 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 Obligor, 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, paying agent,
custodian. sequestrator or similar official for the Obligor or for a substantial part of its property;
and such proceeding or petition shall continue undisrnissed for sixty (60) days or an order or decree
approving or ordering any of the foregoing shall continue unstayed and in effect for thirty (30)
days.
Section 3.02. Remedies. If an Event of Default shall occur and be continuing, then AMBAC 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 any related instrument and any
obligation, agreement or covenant of .the Obligor under this Agreement; provided, however, that
AMBAC 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. All rights and remedies of AMBAC
under this Section 3.02 are cumulative and the exercise of anyone remedy does not preclude the
exercise of one or more of the other available remedies.
ARTICLE IV
SETTLEMENT
AMBAC shall have the exclusive right to decide and determine whether any claim, liability, suit or
judgment made or brought against AMBAC, the Obligor or any other party on the Surety Bond
shall or shall not be paid, compromised, resisted, defended, tried or appealed, and AMBAC's
decision thereon, if made in good faith, shall be final and binding upon the Obligor. An itemized
statement of payments made by AMBAC, certified by an officer of AMBAC, or the voucher or
vouchers for such payments, shall be prima facie evidence of the liability of the Obligor, and if the
Obligor fails to reimburse AMBAC, pursuant to subsection (b) of Section 2.01 hereof, upon the
receipt of such statement of payments, interest shall be computed on such amount from the date of
any payment made by AMBAC at the rate set forth in subsection (a) of Section 2.01 hereof.
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ARTICLE V
MISCELLANEOUS
Section 5.01. Computations. All computations of premium, interest and fees hereunder shall be
made on the basis of the actual number of days elapsed over a year of360 days.
Section 5.02. Exercise of Ri2hts. No failure or delay on the part of AMBAC to exercise any
right, power or privilege under this Agreement and no course of dealing between AMBA~ and the
Obligor 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
AMBAC 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 5.03. Amendment and Waiver. Any provision of this Agreement may be amended,
waived, supplemented, discharged or tenninated only with the prior written consent of the Obligor
and AMBAC. The Obligor hereby agrees that upon the written request of the Paying Agent,
AMBAC 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 tenns of the
Surety Bond nor adversely affect the rights of the Owners. and this Agreement shall apply to such
substituted Surety Bond. AMBAC agrees to deliver to the Obligor and to the company or
companies, if any, rating the Obligations, a copy of such substituted Surety Bond.
Section 5.04. Successors and Assigns: Descriptive Headin2s.
(a) This Agreement shall bind, and the benefits thereof shall inure to, the Obligor and AMBAC and
their respective successors and assigns; provided, that the Obligor may not transfer or assign any
or all of its rights and obligations hereunder without the prior written consent of AMBAC.
(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 5.05. Other Sureties. If AMBAC 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 Obligor to enforce this Agreement, and
"AMBAC," wherever used herein, shall be deemed to include such reinsuring surety, as its
respective interests may appear.
Section 5.06. Signature on Bond. The Obligor's liability shall not be affected by its failure to sign
the Surety Bond nor by any claim that other indenmity or security was to have been obtained nor
by the release of any indenmity, nor the return or exchange of any collateral that may have been
obtained.
21
Section 5.07. Waiver. The Obligor 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 Obligor's request and in reliance on the Obligor's promise to execute this
Agreement.
Section 5.08. 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 party hereto,
when sent, addressed as specified below or at such other address as either of the parties hereto or
the Paying Agent may hereafter specify in writing to the others:
If to the Obligor: >
If to the Paying Agent: >
If to AMBAC:
AMBAC Indemnity Corporation
One State Street Plaza
17th Floor
New York, New York 10004
Attention: General Counsel
Section 5.09. 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 5.10. 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 5.11. Counteroarts. 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 Obligor
and AMBAC.
Section 5.12. Severabilitv. 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.
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.
(Seal)
Attest:
Title
By
Title
AMBAC INDEMNITY CORPORATION
By
Title
22
ANNEX A - SURETY BOND
ANNEX B
DEFINITIONS
For all purposes of this Agreement, except as otherwise expressly provided herein or unless the
context otherwise requires, all capitalized terms shall have the meaning as set out below.
"Agreement" means this Guaranty Agreement.
"AMBAC" has the same meaning as set forth in the first paragraph of this Agreement.
"Collateral and Revenues" has the same meaning as set forth in Section 2.03 hereof.
"Conunitment" means the AMBAC Commitment for Surety Bond in the form attached hereto as
Annex C.
"Debt Service Payments" means those payments required to be made by the Obligor which will be
applied to payment of principal of and interest on the Obligations.
"Effective Interest Rate" means the lesser of the Reimbursement Rate or the maximum rate of
interest permitted by then applicable law; provided, however, that the Effective Interest Rate shall
in no event be less than the interest rate on the Obligations.
"Event of Default" shall mean those events of default set forth in Section 3.01 of this Agreement.
"Legally Available Funds" means any moneys legally available to the Obligor for the payment of
its obligations.
"Obligations" has the same meaning as set forth in the second paragraph of this Agreement.
"Obligor" has the same meaning as set forth in the first paragraph of this Agreement.
"Owners" means the registered owner of any Obligation as indicated in the books maintained by
the applicable paying agent, the Obligor or any designee of the Obligor for such purpose. The term
"Owner" shall not include the Obligor or any person or entity whose obligation or obligations by
agreement constitute the underlying security or source of payment for the Obligations.
"Paying Agent" means
"Reimbursement Period" means, with respect to a particular Surety Bond Payment, the period
commencing on the date of such Surety Bond Payment and ending 12 months following such
Surety Bond Payment.
"Reimbursement Rate" means Citibank's prime rate plus two (2) 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, New York, New York, as its prime rate. The rate of interest shall be calculated
on the basis of a 360 day year.
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"Resolution" means
"State" means the State of _
"Surety Bond" means the surety bond issued by AMBAC substantially in the form attached to this
Agreement as Annex A.
"Surety Bond Coverage" means the amount available at any particular time to be paid to the
Paying Agent under the terms of the Surety Bond, which amount shall never exceed $
"Surety Bond Payment" means an amount equal to the Debt Service Payment less (i) that portion
of the Debt Service Payment paid by the Obligor, and (ii) other funds legally available to the
Paying Agent for payment to the Owners, all as certified by the Paying Agent in a demand for
payment rendered pursuant to the tenns of the Surety Bond.
ANNEX C
COMMITMENT
24
AMBAc INDEMNITY CORPORATION WIRING INSTRUCTIONS
(REVISED - AS OF 4/10/95)
Citibank N .A.
ABA NO. 021000089
For: AMBAC Indemnity Corporation
Ale No. 40609486
Advise: Pamela Dottin (212) 208-3308
**. Please indicate Policy Number on wire ...
POLICY NUMBER CAN BE OBTAINED FROM AMBAC INDEMNI1Y'S CLOSING
DEPARTMENT.
CALL JANINE FEUDI AT (212) 208-3301
25
RAUSCHER PIERCE REFSNES,INC.
March 5 , 1996
Mr. Robert Nachlinger
Finance Director
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Re: Forward Swap Option Proposal for 1994 Callable Taxable Pension Bonds
Dear Bob:
We have read the November 21, 1995 written proposal from Morgan Stanley that we received
regarding a taxable forward swap option as a vehicle for generating savings for the City of
Miami Beach on its Series 1994 Taxable Pension Special Obligation Bonds. Since receiving
the proposal, we have had discussions with various Morgan Stanley personnel, City staff, and
bond counsel. Also, we reviewed the numerical analyses dated February 8, 1996 prepared by
Morgan Stanley for purposes of supporting the proposal.
Backe:round
In February 1995, the City issued $57,710,000 of its Series 1994 Taxable Pension Special
Obligation Bonds (AMBAC insured). The bonds are not prepayable (callable) until September
1, 2005, and then at 102 % of principal. The callable bonds as of September 1, 2005 total
$42,255,000 at an interest cost and stated coupon rates of 8.55% and 8.60%.
This transaction focuses on taking advantage of the low interest rates available in the current
market and the opportunity for savings if today's rates could be locked in even though the
1994 bonds are not callable until 2005.
Proposed Transaction
Financial instnunent. The instrument that would be sold by the City is an option contract on
an interest rate swap agreement with an exercise date and effective date in the future on or
near the 2005 call date on the 1994 bonds.
The interest rate swap agreement, if it becomes effective through Morgan Stanley's exercise of
the option, would require the City to pay a fixed rate and receive a variable rate of interest on
a notional amount equal to the callable 1994 bonds.
Miami Center . 201 S. Biscayne Boulevard, Suite 830 . Miami, Aorida 33131 . (305) 577-4400 . FAX (305) 577-4838
Member New York Stock Exchange, Inc.
Mr. Robert Nachlinger
March 5, 1996
Page 2
Payments to the City. The City would receive an initial option fee for the sale of the option
of approximately $1.9 million at the trade date in early 1996 and, if the option is exercised, a
second payment of approximately $1.6 million as an exercise fee in 2005.
Option exercised. The sale of the option by the City to Morgan Stanley results in the
payments described above and, of course, the potential for the option to be exercised at the
exercise date. The scenario of the option not being exercised at the exercise date poses no risk
to the City. Because the fIxed swap payment is higher than the current market rate, the
presumption is that the option will be exercised. Upon exercise, the City then has aO choice of
either:
1. Retaining the swap and making the fIxed swap payments. The 1994 Bonds
would be called and current refunded using variable rate bonds. The net cost of
the debt service would approximate that of the 1994 Bonds.
2. Terminating the swap and issuing fIxed rate refunding bonds. The termination
fee would be fInanced as part of the bond issue. In this .case, the debt service
would also approximate that of the 1994 Bonds.
3. Terminating the swap and relatedly, paying the termination fee, and dealing
separatel y with the 1994 bonds.
End Result
The option fee received initially is the "benefit to the City of the transaction. The other aspects
require future actions and do nothing more than protect the value of the initial option fee. The
$1.9 million initial option fee should be viewed by the City as the total benefIt.
Future Responsibilities and Risks
The City, by undertaking this financing strategy, realizes all benefits now, but leaves some
decisions and actions to be undertaken in 2005 and beyond. With those decisions and actions,
come certain risks and other issues to consider.
Specifically, if the option is exercised in 2005, the City is faced with the following:
Decisions and Actions
. Must decide whether to currently refund the 1994 Bonds with natural fIxed rate
bonds or variable rate bonds swapped to synthetic fIxed rate, or to terminate the
swap contract.
Mr. Robert Nachlinger
March 5, 1996
Page 3
Risks and Other Issues
. The risk will exist that the relationship of City borrowing costs differs from the
swap contract basis more than assumed in 1996. This is referred to as "basis
risk" or "intermarket risk". This risk may be one time if a fixed rate alternative
is selected or ongoing if the variable rate borrowing swapped to synthetic fixed
alternative is selected. To the extent this risk results in a cost to the City, future
debt service costs will be higher than currently assumed.
. The general debt issuance process and resulting costs of issuing bonds may be
different in 2005, and thus could produce additional costs to the City that are
not now contemplated.
. The 2005 activities themselves are not designed to and probably will not
generate additional savings or benefits beyond the payment already received by
the City. The 2005 efforts will be expended for no gain except to preserve the
benefit received nine years earlier.
. If current refunding bonds are issued in 2005, they may have features that will
need explanation at that time. Fixed rate bonds may have a principal amount
substantially larger than current refunding bonds issued without a swap option
involved because of the termination fee. On the other hand, variable rate
refunding bonds converted to a synthetic fixed rate if the swap is not terminated
may have a synthetic fixed rate substantially higher than market rates. The end
result of either scenario is estimated to produce debt service approximately
equal to that of the 1994 Bonds. ~
. As stated above, the issuance of fixed rate refunding bonds will result in a
higher principal amount of bonds outstanding than were outstanding at the call
date. This does not pose a financial risk to the City given that associated debt
service payments will approximate those of the 1994 Bonds. The higher
principal amounts of debt outstanding however, may have credit implications to
the extent that the rating agencies, bond insurers and other market analysts
review the City's debt ratios and financial position.
Summary
Fundamentally, we believe the proposed transaction is technically sound and can accomplish
its stated objectives. A schematic of the proposed transaction is attached which summarizes
the mechanics of the transaction and highlights key elements.
Mr. Robert Nachlinger
March 5, 1996
Page 4
We believe that it is crucial for the City of Miami Beach to recognize that this strategy makes
the refunding decision for the 1994 bonds now. Savings would be received now and today's
interest rate levels embraced. Greater benefits from lower future rates would be foregone.
Also, some risks are associated with the transaction because of future actions required and the
necessary symmetry assumptions between the City's future taxable borrowing costs and the
taxable swap market.
Based on our review of the proposed transaction, the benefit to be received by the City is
acceptable considering the risks of the transaction compared with savings levels associated with
a traditional refunding.
Sincerely,
&;f~
Dale R. Henderson
Senior Vice President-Managing Director
Attachments
CITY OF
MIAMI BEACH
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139
OFFICE OF THE CITY MANAGER TELEPHONE: (305) 673-7010
FAX: (305) 673-7782
COMMISSION MEMORANDUM NO. \ ~3- q ~
March 6, 1996
To:
Mayor Seymour Gelber and
Members of the City Commission
From:
Jose Garcia-Pedrosa
City Manager
Subject:
Sale of an Option to Morgan Stanley & Co. in Connection with an Interest Rate
Swap
Administrative Recommendation
The Administration recommends that the Mayor and City Commission adopt the resolution.
Background
The Pension Obligation Bonds were sold approximately one year ago. Since that time, interest rates
have declined by one and one half percent. In a tax exempt transaction, we would be proposing to
advance refund these bonds to reduce the arumal debt service cost to the City. Since these bonds had
to be issued on a taxable basis, the normal refunding process is not available to the City.
The Administration began to search for a way to extract the value of this change in interest rates for
the City. The method that we found to convert this change in interest rates into a cash payment for
the City is the sale of an option on an interest rate swap. This option will allow Morgan Stanley to
enter into a swap transaction with the City in 2005. The City can refund the then outstanding
$42,000,000 in Pension Obligation Bonds with variable rate bonds. Morgan Stanley will pay to the
City the costs associated with the issuance of the variable rate bonds including, but not limited to,
the call premium, the underwriting fees and the bond insurance. Morgan Stanley will pay the
variable rate debt service costs, and the City will pay the fixed rate under the swap. Another option
that the City has if the Morgan Stanley exercises the option is to pay a termination payment to the
Morgan Stanley and end all obligations to them. Additionally, the City could issue fixed rate bonds
for the refunding and the termination payment. This would end the swap and continue with a fixed
rate obligation for the City. Assuming market conditions similar to today's market, the termination
payment and the refunding bonds would produce an annual debt service cost that should be equal
to the current fixed rate debt service cost.
Agenda Item R 1 A.
Date 3-l,-Q/,a
The option is only exercisable for a single day in 2005. If interest rates are not favorable to the
Morgan Stanley at that time, the option will not be exercised and all obligations will cease.
The risks in this transaction are described in the report from our financial advisor attached. These
risks are that the relationship between the interest rates in the swap market differ in 2005 than they
do today; the costs of issuance of bond transactions is more or less that it is today; and that there will
be no additional economic savings to the City in 2005 if bonds are issued.
The payment that the City would receive from this sale of a swap option is extremely interest rate
sensitive. Upon execution, depending on the interest rate market that day, the City should net
between $1,250,000 and $2,000,000. The amount is a net number based on the payment to AMBAC
Insurance Co. for the commitment to insure the City's bonds and to insure the swap payments
beginning in 2005. This fee has been reduced from the initial asking price of over $230,000 to
$150,000.
Conclusion
The City can generate a payment of up to approximately $2,000,000 from this sale. The amount of
this payment is acceptable considering the level of risks associated with the transaction. These
savings are approximately equal from the amount that could be generated from a traditional
refunding transaction. For these reasons, the sale should be approved.
JGP/RJN/cp