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HomeMy WebLinkAboutExhibit 26REMARKETING AGREEMENT Dated as of December 1, 2006 Between CITY OF MIAMI, FLORIDA And MORGAN STANLEY & CO. INCORPORATED, as Remarketing Agent $ ,000 NON -AD VALOREM VARIABLE RATE REFUNDING REVENUE BONDS, TAXABLE PENSION SERIES 2006 ORL14PFCP4830220.3 3859110001 REMARKETING AGREEMENT THIS REMARKETING AGREEMENT dated as of December 1, 2006 ("Agreement"), between CITY OF MIAMI, FLORIDA (the "Issuer"), and MORGAN STANLEY & CO. INCORPORATED, as Remarketing Agent (the "Remarketing Agent"). Recitals A. The Issuer is issuing its Non -Ad Valorem Variable Rate Refunding Revenue Bonds, Taxable Pension Series 2006 in the aggregate principal amount of $ ,000 (the "Bonds"), pursuant to and in full compliance with the Constitution and Statutes of the State of Florida, Resolution No. 95-564 adopted on July 13, 1995, Resolution No. R-04-0697 adopted on November 13, 2004 and Resolution No. R-06- adopted on October T, 2006 (collectively, the "Resolution"), and the Master Trust Indenture, dated as of December 1, 1995 (the "Master Indenture") between the Issuer and U.S. Bank National Association (successor to First Union National Bank of Florida), as Trustee, as supplemented by the Series 2006 Indenture dated as of December 1, 2006 (the "Series 2006 Indenture") between the Issuer and the Trustee (the Master Indenture and the Series 2006 Indenture are referred to herein as the "Indenture"). , has been appointed as paying agent and bond registrar (the "Paying Agent" and "Bond Registrar") with respect to the Bonds under the Resolution. All terms not otherwise defined in this Remarketing Agreement have the meanings ascribed to such terms in the Resolution. B. Pursuant to the Resolution and the Indenture, the Bonds bear interest at variable interest rates and, under the circumstances, at the times and in the manner provided in the Resolution and the Indenture, may be, and at certain times are required to be, tendered by the holders thereof for purchase upon notice and delivery to the Paying Agent and Tender Agent as defined in and provided for in the Resolution and Series 2006 Indenture. C. The Issuer has caused the scheduled payment of principal of and interest on the Bonds when due to be guaranteed under a municipal bond insurance policy (the "insurance Policy") issued by (the "Bond Insurer"). D. The Issuer, as required under the Indenture, has provided for the liquidity of the Bonds to be enhanced by entering into a Standby Bond Purchase Agreement dated December 1, 2006 (the "Liquidity Facility") with Wachovia Bank, National Association (the "Liquidity Facility Issuer") to provide for the purchase of the Bonds upon certain conditions, as more fully described in the Series 2006 Indenture, and the Standby Bond Purchase Agreement. E. The Issuer desires to appoint Morgan Stanley & Co. Incorporated as its agent to perform ' the services of Remarketing Agent provided for herein and in the Resolution and the Indenture, and Morgan Stanley & Co. Incorporated is willing to do so on the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the foregoing and the mutual representations, covenants and agreements set forth in this Agreement, the parties to this Agreement hereby covenant and agree as follows: 1. Representations and Warranties of the Issuer. The Issuer represents and warrants to the Remarketing Agent that as of the date hereof: (a) The representations and warranties made by the Issuer in the Bond Purchase Agreement dated November 2006, to the Remarketing Agent, as representative of the purchasers of the Bonds named therein are true and correct. ORL14PFCP1830220.3 36591/0001 (b) This Agreement has been duly authorized by the Issuer and constitutes the legal, valid and binding obligation of the Issuer, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy or other laws affecting the enforcement of creditors' rights generally or by general equitable principles and except as rights of indemnity or contribution hereunder may be limited by public policy. 2. Acceptance of Appointment and Obligations of Remarketing Agent. (a) Morgan Stanley & Co. Incorporated hereby accepts its appointment as the Remarketing Agent for the Bonds and hereby accepts and agrees to perform the duties and obligations imposed upon it as Remarketing Agent under the Resolution and the Indenture. The Remarketing Agent hereby designates as its principal office the address specified in Section 11 hereof. (b) The Remarketing Agent will determine the Daily Rate, the Weekly Rate, each Commercial Paper Rate, the Dutch Auction Rate and the Term Rate, all in accordance with the Series 2006 Indenture, and will give notice of such rates in the manner and to the persons specified therein. In addition, the Remarketing Agent will provide all notices in the manner and at the times set forth in the Indenture, and specifically, the Remarketing Agent will provide the notice required by Articles II and III of the Series 2006 Indenture. (c) The proceeds of the sale of any Bonds as a result of the remarketing thereof by the Remarketing Agent, shall be deposited to the accounts and used as set forth in Section 312 of the Series 2006 Indenture. (d) The Remarketing Agent will keep books and records with respect to its duties as Remarketing Agent as is consistent with prudent industry practice and will make those books and records available for inspection by the Issuer at all reasonable times during its normal business hours. (e) The Remarketing Agent will be acting solely as an agent in the resale of the Bonds and will use its best efforts to remarket Bonds in accordance with the Resolution and perform all other duties assigned to it under the Resolution and the Indenture. Notwithstanding anything to the contrary contained herein, in the event of a conflict between the terms of this Remarketing Agreement and the Series 2006 Indenture, the terms of the Series 2006 Indenture shall control. 3. Fees and Expenses. While the Bonds bear interest at a Daily Rate or a Weekly Rate, unless otherwise agreed upon from time to time by the Issuer and the Remarketing Agent, the Issuer will pay the Remarketing Agent directly as compensation for its services hereunder a fee equal to eight hundredths of one percent (.08%) per annum of the weighted average principal amount of the Bonds outstanding bearing interest at a Daily Rate or a Weekly Rate during each three-month period (or from the date of issuance of the Bonds to the payment date with respect to the initial period), payable quarterly in arrears on each January 1, April 1, July 1 and October 1, commencing 1, 2006. If the Bonds are to bear interest at Commercial Paper Rates, Dutch Auction Rates, or Term Rates, the Issuer will pay the Remarketing Agent for Bonds bearing interest at Commercial Paper Rates, Dutch Auction Rates, or Term Rates, a remarketing fee that is mutually agreed to by the Issuer and the Remarketing Agent at the time of conversion of Bonds to a Commercial Paper Rate, Dutch Auction Rates, or Term Rates. The Remarketing Agent will not be entitled to compensation after this Remarketing Agreement is terminated except for a pro rata portion of the fee in respect of the quarter in which such termination occurs. Additionally, the Issuer will reimburse the Remarketing Agent for its _2_ ORLI4PFCP4830220.3 38591/0001 reasonable out-of-pocket expenses in performing its obligations hereunder, including, without limitation, expenses incurred in the preparation and distribution of the disclosure documents referred to in Section 4 and in connection with the proposed conversion of the Bonds from one Rate Period to another Rate Period. 4. Disclosure Document, The Issuer has previously prepared and delivered to the Remarketing Agent a copy of the Official Statement, dated December 1, 2006, including appendices consisting of financial and other information in respect to the Issuer in connection with the original issuance of the Bonds (the "Official Statement"). The Issuer authorizes the use by the Remarketing Agent of the Official Statement in connection with the remarketing of the Bonds. If required under any applicable law or as a material change in the information in a disclosure document theretofore used by the Remarketing Agent in connection with the remarketing of the Bonds, which may include the Official Statement distributed in connection with the sale of the Bonds by the Underwriter, the Issuer promptly will provide the Remarketing Agent with a disclosure document reasonably satisfactory to the Remarketing Agent and its counsel in respect of the Bonds. The Issuer will, at its sole expense, supply the Remarketing Agent with such number of copies of the disclosure document as the Remarketing Agent reasonably requests from time to time, within such reasonable time period as will permit the Remarketing Agent to comply with provisions of Rule 15c2-12 of the Securities Exchange Act of 1934, as amended (the "Rule"). The Issuer will supplement and amend the disclosure document so that, at all times when used in connection with the remarketing of the Bonds, the disclosure document will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements in the disclosure document, in the light of the circumstances under which they were made, not misleading; provided, however, that no such amendment or supplement will be made prior to allowing the Remarketing Agent a reasonable opportunity to review it. The Issuer will furnish the Remarketing Agent with copies of all continuing disclosure documents and such additional information concerning the operations and financial condition of the Issuer or concerning the Bonds as the Remarketing Agent may from time to time reasonably request. The Issuer will not, however, be required to make representations or warranties as to statements or omissions based upon information furnished to the Issuer in writing by or on behalf of the Remarketing Agent relating to the Remarketing Agent expressly for use therein. The Issuer agrees to notify the Remarketing Agent promptly in writing of the occurrence of any of the following events: (a) any default under the Resolution or the Indenture of which it has knowledge or any event which, with notice or lapse of time or both, would constitute such an event of default; (b) any event with respect to the Bonds which requires the delivery of an opinion of Bond Counsel pursuant to the Resolution or the Indenture; (c) any optional redemption or extraordinary optional redemption pursuant to the Resolution or the Indenture; (d) any mandatory redemption (other than pursuant to sinking fund provisions) pursuant to the Resolution or the Indenture; (e) each material amendment, modification or supplement to the Resolution or the Indenture; -3- ORLI IPFCP\830220.3 38591/0001 (f) any fact or occurrence as a result of which the Official Statement for the Bonds would be or become false or misleading in any material respect or any representation or warranty made herein would become false; (g) any material adverse change in the financial condition or general affairs of the Issuer; or (h) any reduction, qualification or withdrawal or any written suggestion by any rating agency that it is considering a possible reduction, qualification or withdrawal in the rating of the Bonds; any material or adverse change in the financial condition or general affairs of, the Bond Insurer or the Liquidity Facility Issuer, of which the Issuer has been notified in writing; (j) any replacement of the Paying Agent, Registrar and Tender Agent under the Indenture; (i) and (k) any change in the Rate Period applicable to the Bonds The Issuer hereby acknowledges the requirements imposed on the Remarketing Agent by the Rule. The Issuer covenants and agrees that it will comply with the continuing disclosure requirements pursuant to Section (b)(5)(i) of the Rule to the extent applicable to the Bonds, and take such other actions as is reasonably necessary to enable the Remarketing Agent to comply with the Rule, if applicable. Upon the request of the Remarketing Agent, which may be made from time to time, the Issuer shall cooperate with the Remarketing Agent to cause the Bonds to qualify for offer and sale under the blue sky laws as the Remarketing Agent may designate, and the Issuer shall pay, or reimburse if paid by the Remarketing Agent, all reasonable fees and disbursement of counsel for the Remarketing Agent and all other expenses and filing fees in connection therewith; provided however, that the Issuer shall not be required to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securieies in any jurisdiction in which it is not so qualified or to subject itself to taxation in any jurisdication in which it is not otherwise subject to taxation. 5. Reserved. 6. Remarketing Agent's Liabilities. The Remarketing Agent will incur no liability to the Issuer or any other party for its actions as Remarketing Agent pursuant to the terms hereof and of the Indenture except for (i) the liabilities for which the Remarketing Agent has agreed to indemnify the Issuer and others pursuant to Section 5 above, and (ii) its gross negligence or willful misconduct. In setting the interest rates on the Bonds, the Remarketing Agent will not be liable for any error made in good faith. The undertaking of the Remarketing Agent to remarket any Bonds pursuant to the Resolution is on a "best efforts" basis. The duties and obligations of the Remarketing Agent will be determined solely by the express provisions of this Agreement, the Resolution and the Indenture and the Remarketing Agent will not be responsible for the performance of any duties and obligations other than as are specifically set forth in this Agreement, the Resolution and the Indenture, and no implied covenants or obligations will be read into this Agreement, the Resolution or the Indenture against the Remarketing Agent. The Remarketing Agent may conclusively rely upon any notice or document given or furnished to it and conforming to the requirements of this Agreement, the Resolution or the Indenture and the Remarketing Agent may rely and will be protected in acting upon such notice or any document reasonably believed by it to be genuine and to have been given, signed or presented by the proper party or parties. -4- ORLILPFCP4830220.3 3859100001 7. Resignation or Removal of Remarketing Agent. The Remarketing Agent may be removed at any time, with or without cause, by the Issuer, upon 30 days written notice by the Issuer to the Remarketing Agent, the Paying Agent, the Tender Agent, and the Liquidity Provider, if any. The Remarketing Agent may at any time resign and be discharged of the duties and obligations created by this Remarketing Agreement by giving at least 20 days written notice to the Issuer, the Paying Agent, the Tender Agent, and the Liquidity Provider, if any; provided that the Remarketing Agent may immediately cease to offer and sell the Bonds if it determines, in its reasonable judgment, that (i) for any reason, a pending or proposed change in applicable tax laws or securities laws would require registration under the Securities Act in connection with the remarketing of the Bonds; (ii) a material adverse change has occurred in the condition of the Issuer; (iii) a general banking moratorium has been declared by federal or New York authorities having jurisdiction; (iv) there has occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis that, in the Remarketing Agent's judgment, is material and adverse; (v) a down -rating of the Bonds has occurred; (vi) an imposition of material restrictions on the Bonds or similar obligations has occurred; (vii) there is a general suspension of trading or the fixing of minimum or maximum prices for trading on the New York Stock Exchange; (viii) in the opinion of the Remarketing Agent, the market price of the Bonds, or the market price generally of obligations of the general character of the Bonds, might be materially adversely affected because: (A) additional material restrictions not in force as of the date hereof is imposed upon trading in securities generally by any governmental or regulatory authority or by any national securities exchange, (B) the New York Stock Exchange or other national securities exchange, or any governmental or regulatory authority, imposes, as to the Bonds, or similar obligations, any material restrictions which are neither now in force nor have been announced to become effective prior to the date of the Bonds, or increase materially those now in force and so announced, with respect to the extension of credit by, or the charge to the net capital requirements of, underwriters, or (C) the President of the United States of America, a member of his cabinet or the United States Securities and Exchange Commission, including a lesser official acting on the behalf of any of them, or a member of the Congress, announces the intended introduction of legislation to achieve the same effect as that described in subclause (A) or (B) of this clause (viii); (ix) a material misstatement or omission in the Official Statement or the Disclosure Document has occurred, so that it is not advisable, in the judgment of the Remarketing Agent, to attempt to remarket the Bonds; or (x) the Remarketing Agent determines, in its sole discretion upon consultation with counsel, that either (A) a disclosure document is required by applicable law to be distributed to prospective purchasers and that such document is not available or, if available, is not reasonably satisfactory to the Remarketing Agent in form or substance or (B) a -5- OFILITFCP1830220.3 3E591/0001 continuing disclosure undertaking is required by applicable law and that such undertaking is either not then in effect or is not reasonably satisfactory to the Remarketing Agent in form or substance. In the event the Remarketing Agent shall resign or be removed, or be dissolved, or if the property or affairs of the Remarketing Agent shall be taken under the control of any state or Federal court or administrative body because of bankruptcy or insolvency, or for any other reason, the Issuer shall appoint a successor Remarketing Agent meeting the requirements set forth herein and in the Indenture. Any successor Remarketing Agent shall be an institution authorized by law to perform all the duties imposed upon it under this Agreement and Section 315 in the Series 2006 Indenture. If a successor Remarketing Agent shall be appointed pursuant to this Section 7, all references herein to the "Remarketing Agent" shall thereafter refer to such successor Remarketing Agent. S. Dealing in Securities by Remarketing Agent. The Remarketing Agent, in its individual capacity, either as principal or agent, may buy, sell, own, hold and deal in any of the Bonds, and may join in any action which any owner of Bonds may be entitled to take with like effect as it did not act in any capacity hereunder; however, the Remarketing Agent will have no obligation hereunder to buy or take any position in the Bonds for its own account. The Remarketing Agent, in its individual capacity, either as principal or agent, may also engage in or be interested in any financial or other transaction with the Issuer and may act as depository, trustee, or agent for any committee or body of owners of Bonds or other obligations of the Issuer freely as if it did not act in any capacity hereunder. 9. Intention of Parties. It is the express intention of the parties hereto that no purchase, sale or transfer of any Bonds, as herein provided, will constitute or be construed to be the extinguishment of any Bond or the indebtedness represented thereby or the reissuance of any Bond or the refunding of any indebtedness represented thereby. The Remarketing Agent will not be liable to the Issuer, the Registrar, Paying Agent, Tender Agent, the Bond Insurer or the Liquidity Facility Issuer on account of the failure of any person to whom the Remarketing Agent has sold a Bond to pay for such Bond or to deliver any document in respect of the sale. It is understood and agreed that the Remarketing Agent shall not be obligated to advance its own funds to purchase, or to effect the purchase of, any Bonds. 10. Amendment. (a) The Issuer agrees not to consent to any amendment of the provisions of the Resolution with respect to this Agreement or the rights and duties of the Remarketing Agent hereunder or thereunder without the prior written consent of the Remarketing Agent which will not be unreasonably withheld. (b) This Agreement may not be amended except by a writing signed by each of the parties hereto; may not be assigned without the mutual consent of the parties hereto; and will not confer any rights upon any other person or any registered or beneficial owners of the Bonds in their capacities as such. -b- ORL1 PFC129330220.3 38591/0001 11. Notices. Unless otherwise provided, all notices, requests, demands and formal actions hereunder must be in writing and mailed, telegraphed or delivered, as follows: If to the Issuer: City of Miami 444 Southwest 2nd Avenue Miami, Florida 33130 If to the Remarketing Agent: Morgan Stanley & Co. Incorporated 1221 Avenue of the Americas New York, New York 10020 Attention: Short Term Products Tel: 212-762-8263 Fax: 212-507-1937 E-Mail: muni-short-term@morganstanley.com If to the Paying Agent or the Tender Agent: Attention: Corporate Trust Department Each of the above parties may, by written notice given hereunder to the others, designate any further or different addresses to which subsequent notices, certificates, requests, or other communications is sent. In addition, the parties hereto may agree to any other means by which subsequent notices, certificates, requests or other communications may be sent. 12. Governing Law and Waiver of Trial by Jury. This Agreement will be governed by and construed in accordance with the laws of the State of Florida. Each of the parties hereto also irrevocably waives all right to trial by jury in any action, proceeding or counterclaim arising out of this Remarketing Agreement or the transactions contemplated hereby. 13. Execution of Counterparts. This Agreement may be executed in several counterparts, each of which will be regarded as an original and all of which will constitute one and the same document. 14. Electronic Transaction. The parties agree that the transaction described herein may be conducted and related documents may be stored by electronic means. Copies, telecopies, facsimiles, electronic files and other reproductions of original executed documents will be deemed to be authentic and valid counterparts of the original documents for all purposes, including the filing of any claim, action or suit in the appropriate court of law. 15. Severability. If any clause, provision or Section hereof is ruled invalid or unenforceable by any court of competent jurisdiction, the invalidity or unenforceability of such clause, provision or Section will not affect any of the remaining clauses, provisions or sections hereof. -7- ORLIIPFCP1830220 3 38331 /0001 IN WITNESS WHEREOF, the parties hereto have caused this Remarketing Agreement to be duly executed by their duly authorized officers as of the day and year first above written. CITY OF MIAMI, FLORIDA By: Name: Title: MORGAN STANLEY & CO. INCORPORATED, as Remarketing Agent By: Name: Title: S-1 ORLI IPFCP1830220.3 3859110001