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Res 23-13RESOLUTION NO. 23-13 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AUTHORIZING THE ISSUANCE OF NOT TO EXCEED $22,250,000 IN AGGREGATE PRINCIPAL AMOUNT OF BOND ANTICIPATION REVENUE IMPROVEMENT NOTES, SERIES 2013, OF THE CITY OF DELRAY BEACH, FLORIDA FOR THE PURPOSE OF FINANCING ALL OR A PORTION OF A BEACH RENOURISHMENT PROJECT FOR AN ESTIMATED PROJECT COST OF NOT TO EXCEED $9,500,000 AND A PORTION OF A FEDERAL HIGHWAY BEAUTIFICATION PROJECT FOR AN ESTIMATED PROJECT COST OF NOT TO EXCEED $12,750,000, INCLUDING FOR BOTH PROJECTS ALL INCIDENTAL AND NECESSARY COSTS RELATING THERETO; DETERMINING THE NEED FOR A NEGOTIATED SALE OF SUCH NOTES TO TD BANK, N.A. (THE "BANK"'); PROVIDING FOR THE TERMS AND PAYMENT OF SAID BOND ANTICIPATION REVENUE IMPROVEMENT NOTES, SERIES 2013, AND THE RIGHTS, REMEDIES AND SECURITY OF THE OWNERS THEREOF; MAKING CERTAIN COVENANTS RELATING TO THE ISSUANCE OF SAID BOND ANTICIPATION REVENUE IMPROVEMENT NOTES, SERIES 2013; APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION OF A CLOSED -END LINE OF CREDIT AGREEMENT AND A NOTE PURCHASE AGREEMENT BOTH WITH THE BANK; AUTHORIZING THE PROPER OFFICERS OF THE CITY TO DO ALL OTHER THINGS DEEMED NECESSARY OR ADVISABLE IN CONNECTION WITH THE ISSUANCE OF SAID BOND ANTICIPATION REVENUE IMPROVEMENT NOTES, SERIES 2013; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of Delray Beach, Florida (the "City Commission "), hereby determines that it is in the best interest of the City of Delray Beach, Florida (the "City "), to finance, on a short -term basis, certain costs relating to all or a portion of a beach renourishment project for an estimated cost of not to exceed $9,500,000 and all. or a portion of a Federal Highway Beautification Project fox an estimated cost of not to exceed $12,750,000, as further described on Exhibit D attached hereto, together with all incidental and necessary costs relating thereto-(the "2013 Projects "); and WHEREAS, on December 14, 1999, the City Commission did adopt Resolution No. 76 -99 (the "Bond Resolution ") authorizing the issuance, from time to time, of revenue bonds (the `Bonds ") to finance and refinance capital projects in the City; and WHEREAS, any capitalized term used in this Resolution and not otheiwise defined, shall have the meaning ascribed to such term in the Bond Resolution; and WHEREAS, pursuant to the Bond Resolution, each series of Bonds issued thereunder shall be payable from the City's covenant contained in the Bond Resolution to budget and appropriate in each Fiscal Year, by budget amendment if necessary, Non -Ad Valorem Revenues and deposit the same in the Debt Service Fund created and established under the Bond Resolution (herein, the "City's Covenant"); and Resolution No. 23 -13 WHEREAS, pursuant to the terms and provisions of Section 8 of Article IV of the Bond Resolution and this Resolution, the City shall issue a series of bond anticipation notes known as "City of Delray Beach, Florida Bond Anticipation Revenue Improvement Notes, Series 2013" (herein, the "2013 Notes ") in substantially the form attached hereto as Exhibit B to finance, on a short -term basis, the costs of the 2013 Projects, including the costs of issuing such 2013 Notes; and WHEREAS, the principal amount of the 2013 Notes authorized under this Resolution shall not exceed $22,250,000; and WHEREAS, the 2013 Notes shall be secured by a pledge of and lien on the Pledged Revenues (as herein defined); and WHEREAS, City staff has previously solicited bids from qualified lending institutions to provide a closed -end line of credit as the vehicle by which the 2013 Notes are to be issued and the 2013 Projects are to be financed on a short -term basis; and WHEREAS, City staff has determined and the City Commission hereby concurs that TD Bank, N.A., a national banking association organized under the laws of the United States with its designated office in Fort Lauderdale, Florida (herein, the `Bank") has provided the best overall bid to the City; and WHEREAS, the City Commission hereby finds that in light of present :Market conditions, the aforementioned bid provided by the Bank, the necessity for the funds in calendar year 2013 and calendar year 2014 and other factors described herein, it would be in the best interest of the City to sell the 2013 Notes to the Bank on a negotiated basis pursuant to the terms and provisions of the Bond Resolution, this Resolution, that certain Note Purchase Agreement dated the date of delivery of the initial issuance of the 2013 Notes (herein, the "Agreement ") by and between the City and the Bank in substantially the form attached hereto as Exhibit A and that certain Closed -End Line of Credit Agreement dated the date of the initial issuance of the 2013 Notes (herein, the "Line of Credit ") by and between the City and the Bank, in substantially the form attached hereto as Exhibit C. NOW, THEREFORE, be it resolved by the City Commission of the City of Delray Beach, Florida,, as follows: ARTICLE I STATUTORY AUTHORITY; FINDINGS AND DEFINITIONS Section 1.1 AUTHORITY FOR THIS RESOLUTION. This Resolution is adopted pursuant to the provisions of the Charter of the City of Delray Beach, Florida, as amended and supplemented, the Florida Constitution, Chapter 166, Florida Statutes, as amended and supplemented and other applicable provisions of law (collectively, the "Act") and the authority provided for in the Bond Resolution. Section 1.2 FINDINGS. It is hereby ascertained, determined and declared: 2 Resolution No. 23 -13 (a) That the City hereby authorizes that the 2013 Projects be financed on a short -term basis from a portion of the proceeds derived from the 2013 Notes issued pursuant to this Resolution and the Line of Credit, together with all incidental and necessary costs and expenses associated therewith, as more fully set forth in Section 1.2(d) hereof. (b) That the City Commission has previously determined it to be necessary and in the best economic interest of the City to implement the 2013 Projects. (e) That the 2013 Projects will serve valid municipal purposes. (d) That the cost of the 2013 Projects shall be deemed to include, but not be limited to, the cost of acquisition, construction, improving a portion of the Beach Renourishment Project in a principal amount of not to exceed $9,500,000 and the Federal Highway Beautification Project in a principal amount of not to exceed $12, 750, 000, including without limitation the reimbursement of such capital expenditures previously made by the City, the cost of administrative expenses; design, engineering and legal expenses; the fees and expenses of Bond Counsel; expenses for estimates of costs; expenses for plans, specifications, licenses and permits; and such other expenses as. may be necessary or incidental to the financing of the 2013 Projects and the issuance of the 2013 Notes herein authorized. (e) That the principal of and interest on the 2013 Notes shall be secured solely by the Pledged Revenues in the manner provided herein, provided that the Owner of the 2013 Notes shall have no lien on any Non -Ad Valorem Revenues until deposited into the Debt Service Fund. The ad valorem taxing power of the City will never be necessary or authorized to pay the principal of and interest on the 2013 Notes and the 2013 Notes issued pursuant to this Resolution shall not constitute a lien upon any other property- whatsoever of or in the City other than the Grant Moneys when paid to the City and the net proceeds of any Take -Out Bonds when such proceeds are delivered to the City. (f) That the City, having previously solicited bids for the sale of the 2013 Notes, has determined that the best qualified bid for the 2013 Notes was delivered by the Bank. (g) That the negotiated sale of the 2013 Notes to the Bank is in the best interest of the City by reason of the nature of and schedule for need of funds to finance the 2013 Projects, the ability to receive advances of the proceeds of the 2013 Notes when needed for the construction of the 2013 Projects and present market conditions. (h) That the Agreement, in the form attached hereto as Exhibit A, the 2013 Notes in the form attached hereto as Exhibit B, and the Line of Credit, in the form attached hereto as Exhibit C, are hereby approved, with such omissions, insertions and variations as may be necessary and desirable, as evidenced by the City's execution thereof and the Mayor (or in his absence, the Vice Mayor) and City Clerk are hereby authorized to execute the same on behalf of the City. (I) That pursuant to the provisions of the Bond Resolution and this Resolution, the City may issue obligations in the future secured by certain of the Pledged Revenues. 3 Resolution No. 23 -13 0) That any capitalized terra not otherwise defined herein, shall have the meaning ascribed to such term in the Bond Resolution. Section 1,3 DEFINITIONS. That, in addition to terms defined elsewhere in this Resolution, the following terms shall have the following meanings unless the context otherwise clearly requires: "Bond CounseP' shall mean Greenberg Traurig, P.A. or any other firm of nationally recognized bond counsel selected by the City and acceptable to the Bank.. "Bond Resolution" shall mean Resolution No. 76 -99, adopted by the City Commission on December 14,1999.' "Business Day" shall mean any day other than a Saturday or Sunday, or a day on which the Bank or London banks are closed. "City" shall mean the City of Delray Beach, Flotida, a municipal corporation in the County of Pahn Beach, State of Florida and its successors and assigns. "City Comrnission" shall mean the duly constituted governing body of the City. "Closing Date" shall mean the date the City issues the authorized principal amount of the 2013 Notes. "Default Rate" shall mean four hundred basis points above the actual Interest Rate in effect immediately prior to any default by the City under this Resolution. "Determination of Taxability" shall. mean the circumstance of interest paid or payable on the 2013 Notes becoming includable for federal income tax purposes in the gross income of the Noteholdex. A Determination of Taxability will be deemed to have occurred upon the receipt by the City or Noteholder of an original or a copy of an Internal Revenue Service Technical Advice Memorandum, Statutory Notice of Deficiency, or other similar written notification which holds that any interest payable on the 2013 Notes is includable in the gross income of the Noteholdex for federal income tax purposes; which notice or notification is not contested by either the Issuer or any Owner; or (ii) a determination by a court of competent jurisdiction that the interest payable on the 2013 Notes is includable for federal income tax purposes in the gross income of the Owner thereof, which determination either is final and non- appealable or is not appealed within the requisite time period for appeal, or (iii) the admission in writing by the Issuer to the effect that interest on the 2013 Notes is includable for federal income tax purposes in the gross income of the Owner thereof. "Draw" shall mean a written request made by an authotized officer described in Section 4.2 hereof to the Bank for a funding request under the Line of Credit. The City shall submit such written request not earlier than two (2) Business Days prior to the expected £undixag date. "Giant Moneys" shall mean any of the net proceeds the City receives froth the Florida Department of Transportation ("FDOT ") under a Local Agency Program Agreement and a Public Transportation Joint 4 Resolution No. 23 -13 Participation Agreement, both by and between the City and FDOT, relating to the resurfacing or reconstruction of portions of U.S. Highway 1 (consisting of landscaping, lighting, minor drainage improvements and resurfacing of parts of Atlantic Avenue and Bus Shelter facility). "Interest Rate" shall mean with respect to the 2013 Notes, unless the 2013 Notes bear interest at the Default Rate or Taxable Rate or if the Term -Out Period is elected, a variable rate of interest on the 2013 Notes which shall be equal to 75% of LIBOR, plus 64 basis points. The Interest Rate shall be calculated on the basis of a 360 day year of twelve thitty -day months and shall be recalculated by the Bank on the first business day of each month. "LIBOR" shall mean the rate of interest (rounded upwards if necessary to the next 100` of one percent) equal to the British Bankers Association LIBOR ( "BBA LIBOR") as published by Bloomberg (or such other commercially available source providing quotations of BBA LIBOR as designated by the Bank from time to time) at approximately 11:00 A.M. (London time) 2 Business Days. prior to the first day of such LIBOR Interest Period for a term comparable to such LIBOR Interest Period; provided however, if more than one BBA LIBOR is specified, the applicable rate shall be the arithmetic mean of all such rates. If, for any reason, such rate is not available, the term LIBOR shall mean the rate of interest per annum (rounded upwards, if necessary; to the nearest 1/100 of 1 %) determined by the Bank to be the average rates per annum at which deposits in dollars are offered for such LIBOR Interest Period to major banks in the London Interbank Market in London, England at approximately 11:00 A.M. (London time) two Business Days prior to the first day of such LIBOR Interest Period for a term comparable to such LIBOR Interest Period. The effective interest rate applicable to the 2013 Notes shall change at the end of each Interest Period. LIBOR Interest Period means initially, a period of one month; provided however, (i) if any LIBOR Interest Period would end on a day which is not a Business Day, such LIBOR Interest Period shall be extended to the next succeeding Business Day (except that where the next succeeding Business Day falls in the next succeeding calendar month, then on the next preceding Business Day), (ii) no LIBOR Interest Period shall extend beyond the Maturity Date and (iii) any LIBOR Interest Period with respect to the 2013 Notes that begins on the last Business Day of a calendar month (or on a day fox which there is no numerically corresponding day in the calendar month at the end of such LIBOR Interest Period) shall end on the last Business Day of the relevant calendar month at the end of such LIBOR Interest Period. "Maturity Date" shall mean, with respect to the unpaid principal of and interest on the 2013 Notes, not later than June 1, 2016 unless the Term -Out Period is elected then June 1, 2026. "Owner," "Noteholder" or "registered holder" or any similar term shall mean the Bank or, subject to the provisions of Section 2.4 hereof, any successor registered holder of the 2013 Notes; provided no Noteholder may be the registered owner of less than $1,000,000 in the aggregate principal amount of the 2013 Notes. "Paying Agent" shall mean the City's Finance Department or, if the City Commission shall so determine by subsequent proceeding, any bank or trust company and any successor bank or trust company appointed by the City to act as Paying Agent hereunder. 5 Resolution No. 23 -13 "Payment Date" shall mean, with respect to interest on the 2013 Notes, each June 1 and December 1, commencing June 1, 2013 and with respect to principal on the 2013 Notes, the Maturity Date and on any other date the principal of the 2013 Notes is optionally prepaid in whole or in part, provided that if such date is not a Business Day, the payment shall be made on the next succeeding Business Day. "Pledged Revenues" shall mean (a) with respect to interest on the 2013 Notes, (i) the Non -Ad Valorem Revenues deposited in the Debt Service Fund created and established under the Bond Resolution, (ii) investment income received from.the investment of raoneys in the Debt Service Fund and accounts established thereunder and (iii) any other moneys deposited in the Debt Service Fund or received by the Paying Agent in connection with the payment of interest on the 2013 .Notes; (b) with respect to the payment of the principal of the 2013 Notes on the Maturity Date, or earlier prepayment date (i) the Non -Ad Valorem Revenue deposited in the Debt Service Fund pursuant to the City's Covenant, (ii) the proceeds from the Grant Moneys, (iii) the net proceeds of the Take --Out Bonds, and (iv) any other moneys deposited in the Debt Service Fund or received by the Paying Agent in connection with the repayment of the 2013 Notes. "Registrar" shall mean the City's Finance Department or, if the City Commission shall so determine by subsequent proceeding, any bank or trust company and any successor bank or trust company appointed by the City to act as Registrar hereunder. "Resolution" shall mean this Resolution as the same may from time to time be amended and supplemented in accordance with the terms hereof. "Take -Out Bonds" shall wean the Bonds, the City may, but shall not be required to issue, under the Bond Resolution to retire the 2013 Notes on the Maturity Date, whether or not the City has elected to adopt the Term -Out Period for the 2013 Notes. "Taxable Rate" shall mean an adjustable rate of interest on the 2013 Notes which after a Determination of Taxability will result in the same after -tax yield to the Bank of the 2013 Notes as before said Determination of Taxability. "Terra -Out Period" shall mean an option offered by the Bank to the City that the City may elect to adopt. The City must notify the Bank in writing not later than April 1, 2016 if the City elects to adopt the Tenn -Out Period. The Bank shall have thirty (30) days after receipt of the City's election to either accept or reject the City's election which the Bank may do in its sole discretion. "Tetra -Out Period Interest Rate" shall be a fixed rate of interest on the 2013 Notes if the City elects to adopt the Term -Out Period for the 2013 Notes determined not later than three (3) Business Days prior to June 1, 2016 and shall be equal to the greater of the sum of (i) the 10 year H.15 Federal Reserve Swap Date plus 0.92 %) times..75 or (ii) the sum of the 10 -year U.S. Treasury Note rate plus 1.00 1/0) times .75. "2013 Notes" shall mean the not to exceed $22,250,000 aggregate principal amount of Bond Anticipation Revenue Improvement Notes, Series 2013, authorized by the Bond Resolution and this Resolution. 6 Resolution No. 23 -13 Words importing singular number shall include the plural number and vice versa, as the case may be and words importing persons shall include firms and corporations. Section 1.4 RESOLUTION AND BOND RESOLUTION CONSTITUTE CONTRACT. In consideration of the acceptance of the 2013 Notes authorized to be issued hereunder by those who shall own the same from time to time, this Resolution and the Bond Resolution shall be deemed to be and shall constitute a contract between the City and the Noteholders and the covenants and agreements herein and therein set forth to be performed by said City shall be for the benefit, protection and security of the Noteholders. ARTICLE Il AUTHORIZATION, TERMS, EXECUTION AND REGISTRATION OF 2013 NOTES Section 2.1 AUTHORIZATION OF 2013 NOTES. Subject and pursuant to the provisions of this Resolution and the Bond Resolution, obligations of the City of Delray Beach, Florida, to be Known as "Bond Anticipation Revenue Improvement Notes, Series 2013" are hereby authorized to be issued in the aggregate principal amount of not exceeding Twenty -Two Million Two Hundred Fifty Thousand Dollars ($22,250,000) for the purpose of financing the costs of the 2013 Projects. Section 2.2 DESCRIPTION OF 2013 NOTES. Notwithstanding the form of Bonds set forth in the Bond Resolution, the text of the 2013 Notes shall be substantially in the form attached hereto as Exhibit B with such omissions, insertions and variations as may be necessary and desirable, as evidenced by the City's execution thereof. The 2013 Notes (initially issued in one (1) typewritten certificate) shall be dated the date of initial issuance of such 2013 Notes, The 2013 Notes shall be issued in registered form. Unless the interest rate on the 2013 Notes is adjusted in accordance with Section 3.7 hereof, the 2013 Notes shall beat interest on the outstanding principal amount of the 2013 Notes at the Interest Rate and shall be payable on each Payment Date, commencing June 1, 2013. Unless all or a portion of the 2013 Notes is optionally prepaid in accordance with the terms of this Resolution, the outstanding principal of the 2013 Notes shall be payable on the Maturity Date. The 2013 Notes shall be issued in a not to exceed principal amount of $22,250,000, but the actual principal amount of the 2013 Notes outstanding will be determined by the amount of proceeds advanced by the Bank to the City by the sutra of the principal amount of such Draws that have not been repaid. Principal and interest on the 2013 Notes shall be payable at the office of the Paying Agent (the designated corporate trust office of the Paying Agent if the City's Finance Department is not the Paying Agent). The 2013 Notes shall be numbered in such manner as may be prescribed by the Registrar. The 2013 Notes shall be payable, with respect to interest and principal, in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts. 7 Resolution No. 23 -13 Subject to the next succeeding paragraphs, the City may prepay the 2013 Notes in whole or in part, at any time or from time to time, without penalty or premium, by paying to the registered holder all or part of the principal amount of the 2013 Notes, together with the unpaid interest accrued on the amount of principal so prepaid to the date of such prepayment. Each prepayment shall be made on such date and in such principal amount as shall be specified by the City in a written notice delivered to the registered owner not less than two (2) Business Days prior thereto. Notice having been given as aforesaid, the principal amount stated in such notice or the whole thereof, as the case may be, shall become due and payable on the prepayment date stated in such notice; and the amount of principal shall be paid (i) in case the entire unpaid balance of the principal of the 2013 Notes is to be paid, upon presentation and surrender of the 2013 Notes to the office of the Paying Agent (the designated corporate trust office, if the Paying Agent is not the City's Finance Department) and (ii) in case only part of the unpaid balance of principal of the 2013 Notes is to be paid, upon presentation of such 2013 Notes at the office of the Paying Agent (the designated corporate trust office, if the Paying Agent is not the City's Finance Department) for notation thereon of the amount of principal then paid or for issuance of a replacement 2013 Bond in the principal amount not redeemed. Notwithstanding the provisions of clause (ii) above, if all of the 2013 Notes ate registered in the name of the Bank, a partial prepayment may be effected by payment to the Bank of the principal, together with unpaid interest accrued thereon., without surrender of the 2013 Notes. If, on the prepayment date, funds for the payment of the principal amount to be prepaid, together with unpaid interest accrued thereon, shall not have been provided to the Paying Agent, as above provided, the principal amount of the 2013 Notes shall continue to be outstanding and to bear interest until payment thereof at the Interest Rate. Notwithstanding the provisions of clause (i) or (ii) above, if all of the 2013 Notes are registered in the name of the Bank, payments shall be effected by payment to the Bank of the principal and interest then due without surrender of the 2013 Note; such payment to be evidenced by the records of the City and the Bank and such records shall be conclusive and binding upon the City and the Owner absent manifest error. Upon a prepayment in whole, the City understands that the Bank will promptly thereafter surrender the 2013 Notes to the City marked "satisfied" or "paid in full." If, on the prepayment date, funds for the payment of the principal amount to be prepaid, together with interest to the prepayment date on such principal amount, shall have been provided to the Owner, as above provided, then from and after the prepayment date interest on such principal amount of the 2013 Notes which are prepaid skull cease to accrue. If said funds shall not have been so paid on the prepayment date, the principal amount of such 2013 Notes shall continue to bear interest until payment thereof at the applicable Interest Rate. Any partial prepayment shall not postpone the due dates of, or relieve the amounts of, any payments of interest due hereunder on the unpaid principal of the 2013 Notes. Once the City prepays a principal amount of the 2013 Notes, the Bank shall have no obligation to repurchase such amount if the City shall subsequently issue alike amount. Section 2.3 EXECUTION OF THE 2013 NOTES. The 2013 Notes shall be executed in the name of the City by the signature of the Mayor or Vice Mayor of the City and its official seal shall be affixed thereto or imprinted or reproduced thereon and attested by the City Clerk. The signatures of the Mayor or Vice Mayor of the City and City Clerk on the 2013 Notes may be manual or facsimile signatures. In case any one or more of the officers who shall have signed or sealed the 2013 Notes shall cease to be such officer of the 8 Resolution No. 23 -13 City before the 2013 Notes so signed and sealed shall have been actually sold and delivered, such 2013 Notes may nevertheless be sold and delivered as herein provided and may be issued as if the person who signed or sealed such 2013 Notes had not ceased to hold such office. The 2013 Notes may be signed and sealed on behalf of the City by such person who at the actual time of the execution of the 2013 Notes shall hold the proper office, although at the date the 2013 Notes shall be actually delivered such person may not have held such office or may not have been so authorized. The 2013 Notes shall bear thereon a certificate of authentication, in the form set forth on Exhibit B attached hereto, executed manually by the Registrar (when. the City's Finance Department shall act as Registrar, the certificate of authentication shall be manually executed by the City's Finance Director). Only the 2013 Notes as shall bear thereon such certificate of authentication shall be entitled to any right or benefit under this Resolution and no 2013 Notes shall be valid or obligatory for any purpose until such certificate of authentication shall have been duly executed by the Registrar-. The certificate of authentication of the Registrar upon the 2013 Notes executed on behalf of the City shall be conclusive .evidence that the 2013 Notes so authenticated have been duly authenticated and delivered under this Resolution and that the Owner thereof is entitled to the benefits of this Resolution. Section 2.4 NEGOTIABILITY, REGISTRATION AND CAN. CELLATION. The Registrar shall keep books for the registration of the 2013 Notes and for the registration of transfers of the 2013 Notes. The 2013 Notes shall be transferable at the option of the registered Owner thereof to an institutional holder, but subject to the prior written approval of the City's Director of Finance (which shall not be unreasonably withheld if the intended transferee provides a suitability letter addressed to the City as to the sophistication of the investor) unless such institutional holder is a bank or trust company, or unless such institutional holder, which is not a bank or trust company, certifies in writing to the City prior to the transfer that it is an "accredited investor" within the meaning of Rule 501 of the Securities Act of 1933, as amended and supplemented (the "33 Act ") or a qualified institutional buyer under Rule 144A of the 33 Act, in which case such approval shall not be required and upon surrender thereof at the office of the Registrar (the designated corporate trust office of the Registrar if the City's Finance Department is not the Registrar) with a written instrument of transfer satisfactory to the Registrar duly executed by the registered Owner or his duly authorized attorney. Upon the transfer of such 2013 Bond, the City shall issue in the name of the transferee a new 2013 Bond. The City, the Paying Agent and the Registrar shall deem and treat the person in whose naive the 2013 Notes shall be registered upon the books kept by the Registrar as the absolute Owner of such 2013 Notes, whether such 2013 Notes shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal of and interest on such 2013 Notes as the s.aine become due and for ali other purposes- All such payments so made to any such Owner or upon his /her order shall be valid and effectual to satisfy and discharge the liability upon such 2013 Notes to the extent of the sum or suins so paid and neither the City, the Paying Agent not the Registrar shall be affected by any notice to the contrary. In all cases in which the privilege of transferring the 2013 Notes is exercised, the City shall execute and the Registrar shall authenticate and deliver the 2013 Notes in accordance with the provisions of this Resolution. The 2013 Notes surrendered in any such transfers shall forthwith be delivered to the Registrar and canceled by the Registrar in the manner provided in this Section. The City or the Registrar {if not the City's Finance 9 Resolution No. 23 -13 Department) may require the payment of a sum sufficient to pay any tax, fee or other governmental charges required to be paid with respect to such transfer. The 2013 Notes paid or redeemed, in whole, either at or before maturity, shall be delivered to the Registrar within a reasonable period of time after the payment or redemption is made and such 2013 Notes shall thereupon be canceled upon written acknowledgement from the Owner that the 2013 Notes have been paid in whole. The 2013 Notes so canceled may at any time be destroyed by the Registrar, who shall execute a certificate of destruction in duplicate by the signature of one of its authorized officers describing the 2013 Notes and one executed certificate shall be flied with the City and the other executed -certificate shall be retained by the Registrar (if not the City's Finance Department). Section 2.5 MUTILATED, DESTROYED, STOLEN OR LOST 2013 NOTES. In case any 2013 Bond shall become mutilated, destroyed, stolen or lost, the City shall execute and the Registrar shall authenticate and deliver a new 2013 Bond of like date, maturity and denomination as the 2013 Bond so mutilated, destroyed, stolen or lost; provided that, in the case of any mutilated 2013 Bond, such mutilated 2013 Bond shall first be surrendered to the City and, in the case of any lost, stolen or destroyed 2013 Bond, there shall first be furnished to the City and the Registrar (if not the City's Finance Department) evidence of such loss, theft, or destruction satisfactory to the City and the Registrar, together with indemnity satisfactory to them. In the event the 2013 Notes shall be about to mature or have matured, instead of issuing a duplicate 2013 Bond, the City may pay the same without surrender thereof. The City and the Registrar (if not the City's Finance Department) may charge the Owner of such 2013 Bond their reasonable fees and expenses in connection with this transaction. Any 2013 Notes surrendered for replacement shall be canceled in the same manner as provided in Section 2.4 hereof. Any such duplicate 2013 Bond issued pursuant to this Section shall constitute additional contractual obligations on the part of the City, whether or not the lost, stolen. or destroyed 2013 Bond be at any time found by anyone and such duplicate 2013 Notes shall be entitled to equal proportionate benefits and fights as to lien on the source and security, for payment from Pledged Revenues with the 2013 Bond issued hereunder. Section 2.6 CONDITIONS FOR ISSUANCE OF THE 2013 NOTES.Prior to the initial issuance of the 2013 Notes, the City shall comply with the following conditions: (a) On the initial Closing Date, deliver to the Bank an opinion of Bond Counsel, satisfactory to the Bank, regarding the due authorization, execution, delivery, validity and enforceability of the 2013 Notes, the Line of Credit and the Agreement and the due adoption of this Resolution and the. Bond Resolution (enforceability of such instruments may be subject to standard bankruptcy exceptions and the like) and that the interest on the 2013 Notes is excludable from gross income for federal income tax purposes; and (b) Deliver to the Bank one or xxaore certificates of the City in form satisfactory to the Bank certifying, among other things, that the City is in compliance with the terms of the Bond Resolution, including the anti- dilution test set forth in Section 4.E of Article III of the Bond Resolution. Section 2.7 INCORPORATION OF TERMS OF BOND RESOLUTION; EXCEPTION-Unless otherwise provided in this Resolution, the terms and provisions of the Bond Resolution 10 Resolution No. 23 -13 applicable to the 2013 Notes are incorporated herein by reference and such terms shall have the same effect as_ if expressly stated herein. ARTICLE III COVENANTS, FUNDS AND APPLICATION THEREOF Section 3.1 2013 NOTES NOT TO BE INDEBTEDNESS OF THE CITY. The 2013 Notes shall not be or constitute an indebtedness of the City within the meaning of any constitutional, statutory or other limitation of indebtedness, but shall be secured and payable solely by the Pledged Revenues. No Noteholder shall ever have the right to compel the exercise of the ad valorem taking power of the City, or taxation in any form of any real property therein, to pay said 2013 Notes or the interest thereon. The pledge of the Pledged Revenues will not constitute a lien upon any property of the City including any Non -Ad Valorem Revenues which have not been deposited into the Debt Service Fund other than the Grant Moneys and the net proceeds of any Take -Out Bonds when such proceeds are delivered to the City. Section 3.2 2013 NOTES. The lien of the 2013 Notes on the Pledged Revenues constituting the Non -Ad Valorem Revenues deposited in the Debt Service Fund shall be on parity with any of the Bonds issued pursuant to the requirements of the Bond Resolution. Section 3.3 2013 NOTES SECURED BY PLEDGE OF PLEDGED REVENUES. From and after the issuance of the 2013 Notes and continuing until the payment of all 2013 Notes as to principal and interest, the Pledged Revenues shall continue to be pledged for the prompt payment of principal of and interest on said 2013 Notes. Section 3.4 COVENANTS OF THE CITY. As long as any of the principal of or interest on the 2013 Notes shall be outstanding and unpaid, or until there shall have been set apart in the Debt Service Fund in accordance with Section 4.H of Article III of the Bond Resolution a sum sufficient to pay, when due, the entire principal of the 2013 Notes remaining unpaid, together with interest accrued and to accrue thereon, the City covenants with the Noteholders as follows: (a) Debt Service Fund. The Debt Service Fund created and established under the Bond Resolution shall constitute a trust fund for the benefit of the Noteholders and shall be held by the City and shall be kept separate and distinct from all other funds of the City and shall be used only for the purpose and in the manner provided in this Resolution. Notwithstanding the provisions of the next preceding sentence, the City may deposit the Pledged Revenues in a single bank account for the City, provided that adequate accounting procedures are maintained to reflect and control the restricted allocations of the funds on deposit therein for the various purposes of such funds. The 2013 Notes shall have a co -equal lien on the Non -Ad Valorem Revenues deposited in the Debt Service Fund created under the Bond Resolution with respect to any Bonds issued or to be issued under the Bond Resolution (the "Parity Debt "). The Parity Debt shall not have a lien on the net proceeds of the Take -Out Bonds or the Grant Moneys. The designation and establishment of the Debt Service Fund in and by the Bond Resolution shall not be construed to requite the establishment of any completely independent self - balancing fund, as such term is commonly defined and used in governmental accounting, but rather is intended solely to constitute an allocation of certain revenues of the City for certain purposes and to establish certain priorities for application of such revenues as provided herein. 11 Resolution No. 23 -13 Any excess amounts remaining in the Debt Service Fund constituting Non -Ad Valorem Revenues after payment has been made on the 2013 Notes and any Parity Bonds on any Payment Date, may be withdrawn and deposited at the direction of the City to be used for any lawful municipal purpose. Moneys on deposit in the Debt Service Fund may be invested in Permitted Investments as authorized pursuant to the Bond Resolution, provided such investments matute not later than the next succeeding Payment Date. All income and earnings received from the investment and reinvestment of the moneys on deposit in the Debt Service Fund shall remain on deposit in the Debt Service Fund and be used in the same manner as other moneys on deposit therein. (b) Note Ad Valorem Revenues. The City will not repeal, amend or modify any resolution or ordinance or take any action within its power to take relating to the imposition and collection of Non -Ad Valorem Revenues in any manner so as to impair or adversely affect in any manner the availability of such Non -Ad Valorem Revenues to pay debt service on the 2013 Notes in the manner provided herein.. (e) Budget and OtherFinanciallnformation. The City shall demonstrate in each annual budget that there are sufficient Non -Ad Valorem Revenues to pay the interest on the 2013 Notes coming due in such Fiscal Year and sufficient Non -Ad Valorem Revenues to pay the outstanding principal in the Fiscal Year the Maturity Date occurs and to meet the City's other obligations hereunder and under the Bond Resolution. The City shall provide the Bank with a copy of its annual budget within thirty (30) days of adoption, a copy of its Comprehensive Annual Financial Report ( "CAFR" ), within two hundred and seventy (270) days after the end of the City's Fiscal Year and, upon the request of the Bank, such other financial' information regarding the City as the Bank may reasonably request. (d) Compliance with Bond Resolution. The City shall comply with the terms of the Bond Resolution and shall not amend or supplement the Bond Resolution in any way that would have a materially adverse effect on the Noteholders. (e) Financial Covenants. The City covenants annually that based on the City's most recent CAFR that the net available General Fund Non: Ad Valorem Revenues shall be at least equal to 1.30 times the annual debt service on the 2013 Notes and any Parity Debt. Notwithstanding the foregoing covenant, the terse "debt service" shall not include the principal due on the 2013 Notes or any other balloon debt or bond anticipation obligations. The term "net available General Fund Non -Ad Valorem. Revenues" means all of the Non -Ad Valorem Revenues of the City, including any surplus or excess from prior fiscal years available for general use, minus the cost of the portion of essential governmental services that are payable from Non -Ad Valorem Revenues. The term "essential governmental services" means general governmental and public safety expenses. The City firrther covenants that so long as the 2013 Notes are Outstanding and notwithstanding the provisions of clause (ii) of the first paragraph of Section 4.F. of Article III of the Bond Resolution, the coverage shall be "1.30 times average annual debt service" rather than "1.10 times average annual debt service," as set forth in such section. (f) Late Charges. If any payment due the Bank is more than fifteen (15) days overdue, a late charge of six percent (6 %) of the overdue payment shall be payable by the City to the Bank. 12 Resolution No. 23 -13 Section 3.5 REMEDIES OF NOTEHOLDERS. Subject to the equal rights of any registered owner of Parity Bonds issued pursuant to the provisions of the Bond Resolution, should the City default in any obligation created by this Resolution, the Noteholders may, in addition to any remedy set forth in this Resolution, either at law or in equity, by suit, action, mandamus or other proceeding in any court of competent jurisdiction, protect and enforce any and all rights under the laws of the State of Florida, or granted and contained in this Resolution and the Bond Resolution and may enforce and compel the performance of all duties required by this Resolution and the Bond Resolution or by any applicable statutes to be performed by the City or by any officer thereof. The City hereby agrees with the Noteholders that the filing of any bankruptcy or insolvency under any federal or state law by or against the City which is not dismissed with prejudice within thirty (30) days of such filing shall give the Noteholders the right to exercise any of the remedies provided to them under this Section 3.5 and Section 4.G of Article III of the Bond Resolution. Notwithstanding anything in this Section 3.5 to the contrary the Noteholders' right to exercise any remedy permitted hereunder shall be consistent with the rights afforded all registered owners of Parity Debt issued pursuant to the provisions of the Bond Resolution, except that the holders of the Parity Debt shall have no rights or remedies with respect to the Grant Moneys or the net proceeds of the Take -Out Bonds. Section 3.6 APPLICATION OF 2013 NOTE PROCEEDS. The proceeds of the 2013 Notes received by the City from the Bank shall be used to finance the costs of the 2013 Projects. Section 3.7 ADJUSTMENTS TO INTEREST RATE. Upon any default by the City under this Resolution, the interest rate on the 2013 Notes shall be converted to the Default Rate. In the event a Determination of Taxability shall have occurred, the rate of interest on the 2013 Notes shall be increased to the Taxable Rate, effective retroactively to the date on which the interest payable on the 2013 Notes is includable for federal income tax purposes in the gross income of the Owner thereof. In addition, the Owner of the 2013 Notes or any former Owners of the 2013 Notes, as appropriate, shall be paid an amount equal to any additions to tax, interest and penalties, and any arrears in interest that are required to be paid to the United States of America by the Owner or former Owners of the 2013 Notes as a result of such Determination of Taxability. All such additional interest, additions to tax, penalties and interest shall be paid by the City within sixty (60) days following the Determination of Taxability and written demand by the Owner. A Determination of Taxability shall not include inclusion of interest on the 2013 Notes in the income of the Owner for purposes of any alternative minimum tax, or branch profits tax if the Term -Out Period is elected, the Interest Rate on the 2013 Notes will be adjusted to the Term --Out Interest Period Interest Rate from June 1, 2016 to the final Maturity Date, or sooner, if the 2013 Notes are optionally prepaid in full. Notwithstanding any of the foregoing, it is the intention of the Bank (and any subsequent Owner of any of the 2013 Notes) and the City that the interest rate on the 2013 Notes never exceed the maximum rate permitted by law (the "Maximum Rate "). In the event any adjustment provided for in this Section 3.7 with respect to the 2013 Notes would produce an. interest rate on the 2013 Notes in excess of the Maximum Rate, the Owner shall not be entitled to receive interest in excess of the Maximum Rate (herein, such amount is referred to as "Excess Interest "). At any time thereafter, if the 2013 Notes shall bear interest at an Interest Rate, which is less than the Maximum Rate, the City shall also pay to tie Owner the unpaid Excess Interest until the earlier of (i) the Maturity Date, (ii) the date all of the Excess Interest has been paid, or (iii) any date the 13 Resolution No. 23 -13 combination of the Interest Rate on the 2013 Notes, plus the Excess Interest, would exceed the Maximum Rate. ARTICLE 1V MISCELLANEOUS PROVISIONS Section 4.1 MODIFICATION OR AMENDMENT. No modification or amendment of this Resolution or of any resolution amendatory thereof or supplemental thereto, may be made without the consent in writing of all of the Noteholders. Section 4.2 ADDITIONAL AUTHORIZATION. The Mayor, the Vice - Mayor, the City Manager, the Finance Director, the Treasurer and any other proper official of the City, be and each of them is hereby authorized and directed to execute and deliver any and all documents and instruments and to do and cause to be done any and all acts and things necessary or proper for carrying out the transactions contemplated by this Resolution. Section 4;3 SE_ VERABILITY OF INVALID PROVISIONS. If any one or more of the covenants, agreements or provisions of this Resolution should be held contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or provisions shall be null and void and shall be deemed separate from the remaining covenants, agreements or provisions and shall in no way affect the validity of any of the other provisions of d-ds Resolution or of the 2013 Notes issued hereunder. Section 4.4 REPEALER. All resolutions and orders, or parts thereof, in conflict herewith are, to the extent of such conflict, hereby repealed and this Resolution shall take effect upon its passage in the manner provided by law. In the event of a conflict between the provisions of this Resolution and the Bond Resolution, the provisions of this Resolution shall control. Section 4.5 EFFECTIVE DATE. This Resolution shall be effective immediately upon its adoption. PASSED AND ADOPTED in regular session on this 16"' day of April, 2013. ATTEST: By: I' City Clerk By: ayor 14 Resolution No. 23 -13 EXHIBIT A NOTE PURCHASE AGREEMENT THIS NOTE PURCHASE AGREEMENT (the "Agreement's dated April _, 2013, by and between TD Bank, N.A., a national banking association organized under the laws of the United States (herein the `Bank") and the City of Delray Beach, Florida, a municipal corporation of the State of Florida (together with its successors and assigns, the "City "). WITNESSETH: WHEREAS, pursuant to the Act, as such term is defined in Resolution No. 76 -99, as supplemented by Resolution No. 23 -13 (collectively, the "Resolution "), adopted by the City Commission of the City on December 14, 1999 and April 16, 2013, respectively, the City authorized the issuance of $22,250,000 in aggregate principal amount of City of Delray Beach, Florida Bond Anticipation Revenue Improvement Notes, Series 2013 (the "Notes "); and WHEREAS, any capitalized tern used in this Agreement and not otherwise defined shall have the meaning .ascribed to such term in the Resolution; and WHEREAS, the Bank has reviewed the Resolution and hereby finds the terms acceptable; and WHEREAS, on this date, the City has, pursuant to provisions of the Act, the Resolution, the Line of Credit and this Agreement, agreed to issue and sell to the Bank and the Bank has, pursuant to the terms of this Agreement, the Line of Credit and the terms and provisions of the Resolution, agreed to purchase from time to time upon each draw, all of the Notes; and WHEREAS, on the date hereof, the Bank shall purchase the Notes in the principal amount equal to the first Draw; and WHEREAS, the City and the Bank have heretofore negotiated the terms of the Notes and the Resolution and by execution of this Agreement each will have confirmed that such are acceptable. NOW THEREFORE, the City and the Bank hereby agree as follows: 1. Purchase and Sales. Upon the terms and conditions set forth herein and in the Notes, the Line of Credit and the Resolution and upon the representations and warranties of the City set forth in the Resolution, the Line of Credit and other closing certificates, the City agrees to sell on this date the Notes on a negotiated basis to the Bank and the Bank agrees on this date to purchase, with immediately available funds, the principal amount of the Notes issued by the City from time to time in connection with Draws. The purchase price for the Notes shall be equal to the principal amount of the Notes so issued by the City from time to time. Since the dated date of the Notes is the date the Notes are issued, there will be no accrued interest as part of the purchase price. Resolution No. 23 -13 A -1 2. Private Placement Negotiated Sale. The Bank hereby acknowledges that the purchase of the Notes from the City is and will be on a negotiated private placement basis and that there has been no offering document prepared by the City in connection with such sales. 3. Conditions for Purchase. The Banks agreement to purchase the Notes on this date is subject to the satisfaction of the conditions set forth in Section 2.6 of Resolution No. 23 -13 and the terms of the Line of Credit. The Bank's purchase of the Notes will constitute full evidence that such conditions have been satisfied or waived. 4. Section 218.385 Florida Statutes. On or before the purchase of the initial issue of the Notes, the Bank has provided the City with the disclosure and truth -in- bonding statements required by and in accordance with, Section 218.385, Florida Statutes, as amended and supplemented. The above- referenced statements are attached to this Agreement as Schedule A. 5. Expenses. As between the City and the Bank, the Bank shall not be liable for any expenses incurred by the City in connection with the issuance of the Notes. The Bank represents to the City that it has not employed of used the services of any attorney or other professional in connection with the Bank's negotiations with the City and its purchase of the Notes other than Gray Robinson, P.A., which fee, in the amount of $4,000 shall be paid by the City. 6. Trial by 11gy Waived. The City and the Bank, for mutual consideration, each acknowledged to be received by the other party hereto, mutually and willingly waive the right to a trial by a jury in connection with any and all claims by any party hereto against the other arising from or in connection with the transactions contemplated by this Agreement, the Line of Credit or the Resolution. 7. Effectiveness. This Agreement shall become effective upon the execution by the appropriate officials of the City and the Bank. 8. Headings. The headings set forth in this Agreement are inserted for convenience only and shall not be deemed to be a part hereof. 9. Amendment. No modification, alteration or amendment to this Agreement shall be binding upon any party until such modification, alternation or amendment is reduced to writing and executed by all parties hereto. 10. Governing Law. The laws of the State of Florida shall govern this Agreement. 11. Counterparts. This Agreement may be signed in any number of counterparts with the same effect as if the signatures thereto and hereto were signatories upon the same instrument. [Signature page follows] Resolution No. 23 -13 A -2 IN WITNESS WHEREOF, the City and the Bank has caused this Agreement to be executed by its respective duly authorized officers all as of the date hereof. TD BAND, N.A. By: (SEAL) Date: Aptl 2013 CITY OF DELRAY BEACH, FLORIDA By: Tit] Date: April , 2013 Resolution No. 23 -93 A -3 EXHIBIT B FORM OF 2013 NOTE No. R- (not to exceed) $22,250,000 UNITED STATES OF AMERICA STATE OF FLORIDA CITY OF DELRAY BEACH, FLORIDA BOND ANTICIPATION REVENUE IMPROVEMENT NOTE, .SERIES 2013 Interest Rate Variable REGISTERED OWNER :- - - - - -- Maturity Date (unless extended) June 1, 2016 Initial Dated Date April 23, 2013 - -TD BANK, N. A.--------------------------- - - - - -- PRINCIPAL AMOUNT:- - - - - -- -NOT TO EXCEED TWENTY TWO MILLION TWO HUNDRED FIFTY THOUSAND DOLLARS - -- KNOW ALL MEN BY THESE PRESENTS, that the City of Delray Beach (the "City ") in Palm Beach County, Florida, for value received, hereby promises to pay from the sources herein mentioned, to the Registered Owner specified above or registered assigns on the Maturity Date specified above or on June 1, 2026, if such Maturity Date is extended in accordance with the provisions of Resolution No. 23 -13, or earlier upon optional prepayment as provided below, upon the presentation and surrender hereof at the City's rinance Department or (if so determined by the City) the designated trust office of the bank or trust company appointed by the City to act as paying agent (said City's Finance Department or such bank or trust company and any bank or trust company becoming successor paying agent being herein called the 'Taying Agent"), the Principal Amount outstanding and not previously prepaid with interest thereon at the stated interest rate calculated on the basis of a 360 -dap year of 12 thirty -day months, on each Payment Date in the manner specified in the within described Note Resolution to the registered owner. The interest rate on the Note may be converted to the Default Rate or is otherwise adjusted as provided in the Resolution No. 23 -13. The principal amount and accrued interest thereon is payable in any coin or currency of the United States of America, which, on the date of payment thereof, shall be legal tender for the payment of public and private debts. This Note is authoxized to be issued in a principal ainount of not exceeding $22,250,000 under the authority of and in full compliance with the Constitution and statutes of the State of Florida, including, particularly, Chapter 166, Florida Statutes, as amended and supplemented, the Resolution No. 23 -13 B -1 Charter of the City of Delray Beach, Florida, as amended and supplemented and other applicable provisions of law (the "Act ") and Resolution No. 76 -99 duly adopted on December 14, 1999 and Resolution No. 23 -13 duly adopted on April 16, 2013 (collectively, the "Note Resolution "), as such resolutions may be further amended and supplemented from time to time and is subject to all terms and conditions of said resolution. Any term used in this Note and not otherwise defined., shall have the meaning ascribed to such term in the Note Resolution. It is hereby certified and recited that all acts, conditions and things required to exist, to happen and to be performed, precedent to and in the issuance of this Note exist, have happened and have been performed in regular and due form and time as required by the Laves and Constitution of the State of Florida and the Charter of the City applicable thereto and that the issuance of this Note is in full compliance with all constitutional or statutory limitations or provisions. This Note. shall not be valid or become obligatory for any purpose or be entitled to any security or benefit under the Note Resolution until the certificate of authentication hereon shall have been signed by an authorized officer of the Registrar. This Note shall bear interest at the Interest Rate, as such rate may be adjusted in accordance with the terms of the Resolution No. 23 -13. Upon the occurrence of a default by the City under Resolution No. 23 -13, this Note shall bear interest at the Default Rate. Interest shall be payable on June 1, 2013 and each December 1 and June 1 thereafter and principal on the Notes, unless prepaid, shall be payable on the Maturity Date, provided that, in either case, if such payment date is not a Business Day, the payment shall be made on the next succeeding Business Day (each a "Payment Date "). The principal of and interest on the Notes shall be secured and payable solely by the Pledged Revenues (as defined in the Note Resolution), all in the manner provided in the Note Resolution. Subject to the terms and provisions of the Section 2.2 of Resolution No. 23 -13 of the City, the City may prepay this Note in whole or in part, at any time or from time to time, without penalty or premium, by paying to the registered holder all or part of the principal amount of this Note, together with the unpaid interest accrued on the amount of principal so prepaid to the date of such prepayment. Each prepayment shall be made on such date and in such principal amount as shall be specified by the City in a written notice delivered to the registered owner not less than two (2) Business Days prior thereto. Notice having been given as aforesaid, the principal amount stated in such notice or the whole thereof, as the case may be, shall become due and payable on the prepayment date stated in such notice; and the amount of principal shall be paid (i) in case the entire unpaid balance of the principal of this Note is to be paid, upon presentation and surrender of such Note to the office of the Paying Agent (the designated corporate trust office, if the Paying Agent is not the City's Finance Department) and (ii) in case only part of the unpaid balance of principal of this Note is to be paid, upon presentation of such Note at the office of the Paying Agent (the designated corporate trust office, if the Paying Agent is not the City's Finance Department) for notation thereon of the amount of principal then paid or for issuance of a replacement Note in the principal amount not redeemed. Notwithstanding the provisions of clause (ii) above, if all of the Resolution No. 23 -13 B -2 Notes are registered in the name of the Bank, a partial prepayment may be effected by payment to the Bank of the principal, together with unpaid interest accrued thereon, without surrender of this Note. If, on the prepayment date, funds for the payment of the principal amount to be prepaid, together with unpaid interest accrued thereon, shall not have been provided to the Paying Agent, as above provided, the principal amount of this Note shall continue to be outstanding and to bear interest until payinent thereof at the Interest Rate_ Any partial prepayment shall not postpone the due dates of, or relieve the amounts of, any payments due hereunder. This Note shall not be and shall not constitute an indebtedness of the City within the meaning of any constitutional, statutory, charter or other limitations of indebtedness but shall be secured and payable solely by the Pledged Revenues. No Holder of this Note shall ever have the right to compel the exercise of ad valorem taxing power of the City, or taxation in any form of any real property therein to pay the Note or the interest thereon. No holder shall have a lien on any Non -Ad Valorem Revenues until deposited into the Debt Service Fund created and established under the Note Resolution. The terms and provisions of the Note Resolution axe incorporated in this Note as though such terms and provisions have been set out in full herein. IN WITNESS WHEREOF, the City of Delray Beach, Florida, has caused this Note to be signed by its Mayor, either manually or with his facsimile signature and the seal of the City Cottimission of the City of Delray Beach, Florida, to be affixed hereto or imprinted or reproduced hereon and attested by the Clerk of the City, either manually or with her facsimile signature and this Note to be dated the Dated Date set forth above. (SEAL) ATTEST: City Clerk CITY OF DELRAY BEACH, FLORIDA Mayor Resolution No. 23 -13 B-3 FORM OF CERTIFICATE OF AUTHENTICATION Date of Authentication: , 2013 This Note is the Note delivered pursuant to the within mentioned Resolution. CITY OF DELRAY BEACH Finance Department, as Registrar By: Authorized Officer Resolution No. 23 -13 B -4 ASSIGNMENT FOR VALUE RECEIVED the undersigned sells, assigns and transfers unto (please print or typewrite name and address of assignee) the within Note and all rights thereundet, and hereby irrevocably constitutes and appoints Attorney to transfer the within Note on the books kept for registration thereof, with full power of substitution in the premises. Signature Guaranteed: In the presence of . NOTICE: The signature to this assignment roust correspond with the name as written upon the face of the within Note in every particular, without alteration or enlargement, or any change whatever. Resolution No. 23 -13 B -5 EXHIBIT C CLOSED -END LINE OF CREDIT AGREEMENT Dated as of April 1, 2013 WHEREAS, TD Bank, N.A., a national banking corporation organized under the laws of the United States (the `Bank" ), has offered to make a closed -end line of credit (the "Line of Credit') available to the City of Delray Beach, Florida, a municipal corporation (the "City ") created and established pursuant to the laws of Florida, as amended and supplemented, in the principal amount of not exceeding $22,250,000 under which the City may, from time to time, make drawings provided that the maximum principal amount of unpaid drawings shall not exceed $22,250,000; and WHEREAS, the City, on April 16, 2013, adopted Resolution No. 23 -13 (the "Resolution ") authorizing the issuance of not exceeding $22,250,000, in aggregate principal amount of City of Delray Beach, Florida Bond Anticipation Revenue Improvement Notes, Series 2013 (the "2013 Notes ") which 2013 Notes shall represent the City's obligation to reimburse the Bank for drawings made under the Line of Credit; WHEREAS, the City and the Bank find it necessary to enter into this Closed -End Line of Credit Agreement (the "Agreement "), to acknowledge the terms and provisions of the Resolution adopted by the City and the extension of the Line of Credit by the Bank; and WHEREAS, capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Resolution or to the extent applicable, the Bond Resolution No. 76 -99 adopted by the City on December 14, 1999 (the "Bond Resolution "), as the case may be. NOW THEREFORE, the City and the Bank hereby agree as follows: Line of Credit. That the Bank shall make available to the City, pursuant to the terms and provisions of the Resolution, the Bond Resolution, the Note Purchase Agreement and this Agreement, the Line of Credit in a maximum principal amount of not exceeding $22,250,000 outstanding, which shall be available to the City in one. or more drawings prior to the Final Draw Date as defined below. Final Draw Date; Maturity Date. That the outstanding principal amount of the drawings with interest thereon, shall become due and payable in accordance with the terms and provisions of the Resolution. The Final Draw Date shall be not later than May 1, 2016, unless the City notifies the Bank in writing prior to such date that they will not request further Draws under the Line of Credit. Principal of and interest on the 2013 Notes shall be payable at the times and in the amounts set forth in the Resolution. The outstanding principal and accrued and unpaid interest of the 2013 Notes shall mature and be due and payable in full on the Maturity Date. Resolution No. 23 -13 C -1 3. Draws. From the date hereof until the Final Draw Date, subject to the terms and conditions of this Agreement and the City's performance of and compliance with each of the Resolution, the Bond Resolution (to the extent applicable) and the Note Purchase Agreement, and so long as no event of default (including, without limitation, the breach of any warranty or representation) hereunder or under any of the Resolution, the Bond Resolution and Note Purchase Agreement shall have occurred, be continuing or would result, the Bank agrees to extend to the City the Line of Credit in an amount not to exceed $22,250,000 (the "Borrowing Base "). Within such Emits and subject to the terms of this Agreement, the Bond Resolution (to the extent applicable) and the Resolution, the City may borrow and .repay without penalty or premium, from the Closing Date until the Final Draw Date in an aggregate principal amount of not exceeding $22,250,000. It is expressly understood and agreed that the Bank shall have no obligation to pay a Draw requested by the City under the Line of Credit if the amount of such Draw together with the amount outstanding under the Line of Credit exceeds or would exceed $22,250,000. The City, through an authorized representative, shall provide the Bank with written notification of its request for a Draw and instructions for the disbursement of the proceeds thereunder. Subject to the terms hereof, all Draw requests made by the City prior to 2:00 p.m. on a Business Day shall be funded that same business day and Draw requests made after 2:00 p.m. on a Business Day or on a non- Business Day shall be funded on the subsequent Business Day. City's Loan Account. All Draws made under the Line of Credit shall be evidenced by the 2013 Notes and by entering such Draws on the books and records of the Bank (herein, the "City's Loan Account") which unpaid amounts in the City's Loan Account shall be conclusive and binding against the City absent manifest error. The Bank shall also record in the City's Loan Account all other charges, expenses and items properly chargeable to the City hereunder, all payments made by the City on account of indebtedness under the Line of Credit and other appropriate debits and credits. The debit balance of the City's Loan Account shall also be evidenced by the 2013 Notes and shall reflect the amount of the City's indebtedness to the Bank from time to time hereunder and under the Resolution. Duration. The Line of Credit shall terminate on the Final Draw Date, at which time all unpaid principal of and accrued interest on the 2013 Notes shall be payable on the Maturity Date. No modification or amendment of this Agreement or extension of the Maturity Date shall be effective unless placed in writing and duly executed by the Bank and the City and Bond Counsel delivers its opinion that such extension shall not adversely affect the tax status of the 2013 Notes. It is expressly agreed that this Agreement shall survive the maturity or termination of the Line of Credit in all respects necessary for the Bank to exercise its rights and remedies hereunder and the Bond Resolution. The City covenants that it will use its best efforts to submit Draws in accordance with the estimated draw schedule attached hereto as Exhibit A. If the City fails to Draw at least the amount set forth on such attached draw schedule, and such failure continues for 30 days after receipt of written notice from the Bank, the Bank inay charge the City a penalty in the amount of .50% of the un -drawn principal amount, which penalty shall be deducted from the next succeeding Draw. This penalty may be charged for each successive failure to Draw at least the amount set forth Resolution No. 23 -13 C -2 on the attached Draw schedule. In lieu of such penalty, the Bank may deposit the un -drawn amount have complete dominion and control over such account, except that prior to the City utilizing such moneys, the Owner of the 2013 Notes shall have a lien thereon. The maturity or termination of the Line of Credit shall in no way affect any transactions entered into or rights created or obligations incurred prior to such maturity or termination; rather, such rights and obligations shall be fully operative until the same are fully disposed of, concluded and /or liquidated. Without limitation to the generality of the foregoing, such maturity or termination shall not release nor diminish any of (i) the City's obligations and agreements relating to the Line of Credit, or (ii) the Bank's rights and remedies arising hereunder or in connection herewith until full and final payment and performance of all of the liabilities of the City to the Bank under this Agreement, the Resolution, the Bond Resolution (to the extent applicable) and the Note Purchase Agreement. This Agreement shall be a continuing agreement in every respect. Acceptance of Terms. That the Bank hereby accepts the terms and conditions set forth in the Resolution applicable to the Line of Credit. Waiver of Jury Trial, The City and the Bank, for mutual consideration, each acknowledged to be received by the other party hereto, mutually and willingly waive the right to a teal by a jury in connection with any and all claims by any party hereto against the other arising from or in connection with the transactions contemplated by this Agreement and the Note Purchase Agreement. 7. Amendment. No modification, alteration or amendment to this Agreement shall be binding upon any party until such modification, alternation or amendment is reduced to writing and executed by all parties hereto. 8. Governing Law. The laws of the State of Florida shall govern this Agreement. 9. Counterparts. This Agreement may, be signed in any number of counterparts with the same effect as if the signatures thereto and hereto were signatories upon the same instrument. TB BANK, N.A. By: Name: Date: Resolution No. 23 -13 C -3 [SEAL] Attest By: Name: Tide: By: Name: Title: Dated: Resolution No. 23 -13 C-4 EXHIBIT A Estimated Draw Schedule Resolution No. 23 -13 C -5 N FEDERAL BEACH TOTAL HIGHWAY RENOURISHENT DATE OF CLOSING 9,144,000 9,144,000 APRIL 2013 - MAY 2013 - JUNE 2013 503,403 503,403 JULY 2013 503,403 503,403 AUG 2013 503,403 503,403 SEPT 2013 789,403 306,000 1,095,403 OCT 2013 417,E53 417,653 NOV 2013 569,353 569,353 DEC 2013 569,353 569,353 JAN 2014 569,353. 50,000 619,353 FEB 2014 853,103 853,1Q3 MAR 2014 567,103 567,103 APR 2014 567,103 567,103 MAY 2014 415,403 415,403 JUNE 2014 415,403 415,403 JULY 2014 415,403 415,403 AUG 2014 415,403 415,403 SEPT 2014 415,403 415,403 OCT 2014 191,500 191,500 NOV 2014 191,500 191,500 DEC 2014 708,122 708,122 JAN 2015 708,122 708,122 1 LB 2015 1,978,108 1,978,108 MAR 2015 116,500 116,500 APR 2015 115,5001 115,500 MAY 2015 Y 250,000 250,000 12,750,000 9,500,000 22,250,000 Resolution No. 23 -13 C -5 EXHIBIT D 2013 Projects (1) "Beach Renoutishment Project ": the engineering, construction, and fill placement as well as environmental monitoring of the City's 2.7 mile long beach. (2) "Federal Highway Beautification Project ": The enhancing of pedestrian safety and beautification of Federal Highway through downtown. The entire corridor will be reduced from three through lanes in each direction to two through lanes in each direction. The first two blocks north and south of E. Atlantic Avenue will include wider sidewalks and decorative street lights. The entire corridor will include additional landscaping and the intersections of southbound Federal Highway and SE 15` St., E. Atlantic Avenue and NE 15` Street will have signalized intersections upgraded. (3) All related, necessary and incidental engineering, design, labor, contingency relating to such capital projects and costs of issuing the 2013 Notes. IIPB 383001399x61999903.426594 Resolution No. 23 -13 D -1