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Res 55-05 (' /"ì RESOLUTION NO. 55-05 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AUTHORIZING THE ISSUANCE OF $10,000,000 IN SERIES 2005 (RECREATIONAL AND CULTURAL PROJECTS), OF THE CITY OF DELRA Y BEACH, FLORIDA FOR THE PURPOSE OF FINANCING ALL OR PORTION OF THE COSTS OF CERTAIN CAPITAL PROJECTS I PARTICULARLY DESCRIBED IN RESOLUTION NO. 72-03; DETERMINING THE NEED FOR A NEGOTIATED SALE OF SUCH BONDS TO SUNTRUST BANK; PROVIDING FOR THE TERMS AND PAYMENT OF SAID GENERAL OBLIGATION BONDS, SERIES 2005 (RECREATIONAL AND CULTURAL PROJECTS) AND THE RIGHTS, REMEDIES AND SECURITY OF THE OWNERS THEREOF; MAKING CERTAIN COVENANTS RELATING TO THE ISSUANCE OF SAID GENERAL OBLIGATION BONDS, SERIES 2005 (RECREATIONAL AND CULTURAL PROJECTS); APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION OF A BOND PURCHASE AGREEMENT WITH SUNTRUST BANK; AUTHORIZING THE PROPER OFFICERS OF THE CITY TO DO ALL OTHER THINGS DEEMED NECESSARY OR ADVISABLE IN CONNECTION WITH THE ISSUANCE OF SAID BONDS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Commission of Delray Beach, Florida (the "City Commission") did, on September 7, 2004, adopt Resolution No. 61-04 (the "Authorizing Resolution") authorizing the issuance of not exceeding $24,000,000 in initial aggregate principal amount of General Obligation Bonds, Series 2004 (Recreational and Cultural Projects) (the "Bonds"), for the purpose of financing all or a portion of the costs of certain capital projects particularly described in Resolution No. 72-03 (the "Projects"), adopted by the City Commission on October 21, 2003; and WHEREAS, any term not otherwise defined in this Resolution shall have the meaning ascribed to such term in the Authorizing Resolution; and WHEREAS, on September 30, 2004, the City, pursuant to the Authorizing Resolution, issued $14,000,000 of its General Obligation Bonds, Series 2004 (Recreational and Cultural : Projects) thereby leaving $10,000,000 of general obligation bonds to be issued under the Authorizing Resolution; and WHEREAS, pursuant to the terms and provisions of the Authorizing Resolution and this Resolution, the City shall issue the remaining of general obligation bonds authorized under the Authorizing Resolution to be known as "City of Delray Beach, Florida General Obligation Bonds, Series 2005 (Recreational and Cultural Projects)" (herein, the "2005 Bonds") to finance all or a portion of the costs of the Projects, including the costs of issuing such 2005 Bonds; and WHEREAS, the principal amount of the 2005 Bonds authorized under this Resolution shall not exceed $10,000,000; and WHEREAS, the 2005 Bonds shall be secured by a pledge of and lien on the Pledged Revenues (as herein defined); and WPB-FS1\SANF0RDSI551 1127.0&.8111105\16787 .011500 ResoIuüon No. 55-05 (' "'\ WHEREAS, City staff has previously solicited bids from qualified lending institutions to purchase the 2005 Bonds on a negotiated private placement basis; and WHEREAS, City staff has determined and the City Commission hereby concurs that designated office in West Palm Beach, 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 2005 and other factors described herein, it would be in the best interest of the City to sell the 2005 I Bonds to the Bank on a negotiated basis pursuant to the terms and provisions of the Authorizing Resolution, this Resolution and that certain Bond Purchase Agreement to be dated the date of delivery of the initial issuance of the 2005 Bonds (herein, the "Agreemenn by and between the City and the Bank in substantially the form attached hereto as Exhibit A. 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 Authorizing Resolution. Section 1.2 FINDINGS. It is hereby ascertained, determined and declared: (a) That the City hereby authorizes that a portion of the Projects be fmanced from a portion of the proceeds derived from the 2005 Bonds issued pursuant to this Resolution and the Authorizing Resolution, together with all incidental and necessary costs and expenses associated therewith, as more fully set forth in Section 1.2(d) hereof. (b) That it is necessary and in the best economic interest of the City at this time to acquire, construct and implement the Projects. (c) That the Projects will serve valid municipal purposes. (d) That the cost of the Projects shall be deemed to include, but not be limited to, the cost of acquisition, construction, improving, renovating and equipping all or a portion of the Projects, the cost of all real or personal property necessary therefor; administrative expenses; design, engineering and legal expenses; the fees and expenses of Bond Counsel; the fees and reasonable expenses of counsel for the Bank; 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 Projects and the issuance of the 2005 Bonds herein authorized. WPB-FS1 1SANF0RDSI5511127.o&.8111105\16787 .011500 2 ResoIuüon No. 55-05 ( '. ""ì (e) That the 2005 Bonds are general obligations of the City and principal of and interest on the 2005 Bonds shall be payable from unlimited ad valorem taxes levied on all taxable property located in the City, all in the manner provided in the Authorizing Resolution. , Bonds, has determined that the best qualified bid for the 2005 Bonds was delivered by the Bank. (g) That the negotiated sale of the 2005 Bonds to the Bank is in the best interest of the City by reason of the nature of and schedule for the completion of the Projects and present market conditions. (h) That the Agreement, in the form attached hereto as Exhibit A, is 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 any capitalized term not otherwise defined herein, shall have the meaning ascribed to such term in the Authorizing 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 Counsel" 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 Authorizing Resolution" shall mean Resolution No. 61-04, adopted by the City Commission on September 7, 2004. "Business Day" shall mean any day other than a Saturday or Sunday, or a day on which the Bank is closed. "City" shall mean the City of Delray Beach, Florida, a municipal corporation in the County of Palm Beach, State of Florida and its successors and assigns. "City Commission" shall mean the duly constituted governing body of the City. "Closing Date" shall mean the date the City issues the 2005 Bonds. "Code" shall mean the Internal Revenue Code of 1986, as amended, the applicable Treasury Regulations promulgated thereunder and any administrative or judicial interpretations of the same published in a form on which the City may rely as a matter of law. "Determination of Taxability" shall mean the circumstance of interest paid or payable on the 2005 Bonds becoming includable for federal income tax purposes in the gross income of the Bondholder. A Determination of Taxability will be deemed to have occurred upon (i) the receipt by the City or Bondholder of an original or a copy of an Internal Revenue Service Technical Advice Memorandum or Statutory Notice of Deficiency which holds that any interest payable on the 2005 Bonds is includable in the gross income of the Bondholder for federal income tax purposes; (ii) the issuance of any public or private ruling of the Internal Revenue Service that WPB-FS1\SANF0RDSI5511127.o&.8111J05\16767 011500 3 Resolution No. 55-05 lm' (' /~ any interest payable on the 2005 Bonds is includable in the gross income of the Bondholder for federal income tax purposes; or (m) receipt by the City or Bondholder of an opinion of a Bond Counsel that any interest on the 2005 Bonds has become includable in the gross income of the Bondholder for federal income tax purposes. For all purposes of this definition. a Determination --- ~ . ... -- --- .-- -, -- -. .. ..-. .. ,- -. ...- ---- .- first deemed includable in the gross income of the Bondholder for federal income tax purposes. "Interest Rate" shall mean with respect to the 2005 Bonds, unless the 2005 Bonds bear interest at the Taxable Rate, a fixed rate of interest on the 2005 Bonds which shall be equal to 4.15% per annum. The Interest Rate shall be calculated on the basis of a 360 day year of I twelve thirty-day months. "Maturity Date" shall mean, with respect to the unpaid principal of and interest on the 2005 Bonds, February 1, 2024. "Owner," "Bondholder" 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 2005 Bonds; provided no Bondholder may be the registered owner of less than $1,000,000 in the aggregate principal amount of the 2005 Bonds. "Paying Agenf 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. i "Payment Date" shall mean, with respect to interest on the 2005 Bonds, each February 1 I and August 1, commencing February 1, 2006 and with respect to scheduled principal on the 2005 Bonds, each February 1, commencing February 1, 2014 and on any other date the principal of the 2005 Bonds is optionally prepaid in whole or in part, provided that if such date is I not a Business Day, the payment shall be made on the next succeeding Business Day. The principal amount of 2005 Bonds payable each February 1 shall be set forth in Section 2.2 hereof. "Pledged Revenues" shall mean (i) the ad valorem taxes levied by the City on all taxable property in the City each year without limitation, as to rate or amount sufficient to pay debt service on the 2005 Bonds, deposited in the Sinking Fund created and established under the Authorizing Resolution, (ii) investment income received from the investment of moneys in the Sinking Fund and accounts established thereunder allocable to the 2005 Bonds and (iii) any other moneys deposited in the Sinking Fund or received by the Paying Agent in connection with the payment of principal and interest on the 2005 Bonds. "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. "Taxable Rate" shall mean the Interest Rate times 1.332. "Tax Certificate" shall mean the Arbitrage Certificate of the City executed on the Closing Date. WPB-FS1\SANF0RDSI5511127.o&.8111105\18787.0115OO 4 Resolution No. 55-05 ( " /,\ "2005 Bonds" shall mean the $10,000,000 aggregate principal amount of General Obligation Bonds, Series 2005 (Recreational and Cultural Projects), authorized by the Authorizing Resolution and this Resolution T -.., - r , case may be and words importing persons shall include firms and corporations. Section 1.4 RESOLUTION AND AUTHORIZING RESOLUTION CONSTITUTE CONTRACT. In consideration of the acceptance of the 2005 Bonds authorized to be issued hereunder by those who shall own the same from time to time, this Resolution and the Authorizing Resolution shall be deemed to be and shall constitute a contract between the City and the Bondholders 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 Bondholders. ARTICLE II ; AUTHORIZATION, TERMS, EXECUTION AND REGISTRATION OF 2005 BONDS Section 2.1 AUTHORIZATION OF 2005 Bonds. Subject and pursuant to the provisions of this Resolution and the Authorizing Resolution, obligations of the City of Delray Beach, Florida, to be known as "General Obligation Bonds, Series 2005" are hereby authorized to be issued, in the aggregate principal amount of Ten Million Dollars ($10,000,000) for the purpose of financing a portion of the costs of the Projects. Section 2.2 DESCRIPTION OF 2005 BONDS. Notwithstanding the form of Bonds set forth in the Authorizing Resolution, the text of the 2005 Bonds 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 2005 Bonds (initially issued in one (1) typewritten certificate) shall be dated the date of initial issuance of such 2005 Bonds. The 2005 Bonds shall be issued in registered form. Unless the interest rate on the 2005 Bonds is adjusted in accordance with Section 3.6 hereof, the 2005 Bonds shall bear interest on the outstanding principal amount of the 2005 Bonds at the Interest Rate and shall be payable on each Payment Date, commencing February 1, 2006. Unless all or a portion of the Bonds is optionally prepaid in accordance with the terms of this Resolution, the outstanding principal of the 2005 Bonds shall be payable on each February 1 in the years and amounts set forth below: [Left blank intentionally] WPB-FS1\SANF0RDSI5511127.o&.8111J05\18787 .011500 5 Resolution No. 55-05 I (' /~ Year Amount 2014 $ 120,000 2015 750,000 2016 785,000 2017 820,000 2018 860,000 2019 895,000 2020 940,000 2021 985,000 2022 1,030,000 2023 1,080,000 2024* 1.135.000 Total $10,000,000.00 *Final Maturity Principal and interest on the 2005 Bonds 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 2005 Bonds shall be numbered in such manner as may be prescribed by the Registrar. The 2005 Bonds 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. Subject to the next succeeding paragraphs, the City may prepay the 2005 Bonds in whole or in part, at any time or from time to time, without penalty or premium, except as may be applicable by the provisions set forth below, by paying to the registered holder all or part of the principal amount of the 2005 Bonds, together with the unpaid interest accrued on the amount of principal so prepaid to the date of such prepayment and any applicable breakage fee described below. 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 2005 Bonds is to be paid, upon presentation and surrender of the 2005 Bonds 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 2005 Bonds is to be paid, upon presentation of such 2005 Bonds 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 i principal then paid or for issuance of a replacement 2005 Bond in the principal amount not redeemed. Notwithstanding the provisions of clause (ii) above, if all of the 2005 Bonds are WPB-FS1 1SANF0RDS\5511127v06\8111J05\16787 .011500 6 Resolution No. 55-05 I I (" /~ 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 and any applicable breakage fee described below, without surrender of the 2005 Bonds. If, on the prepayment I date. fu~~s for the ~a~ment ~! ~inci~~I_~"]~~~~:o_~:_.~r:~~~~: ~~~7.t~:~ ~~~~_ uhn"p~~d~~~~~~:s~ ...,,"" "'''1 .." _ ."'''' """'....",..,"''''' ..,"',"'.. .."u.. ""'. "u.'" '-'.. I to the Paying Agent, as above provided, the principal amount of the 2005 Bonds 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 2005 Bonds are registered in the name of the Bank, payments shall be effected by payment to the Bank of the principal and interest then due and any applicable breakage fee described below without surrender of the 2005 Bond so paid; 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 2005 Bonds 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 2005 Bonds which are prepaid shall cease to accrue. If said funds shall not have been so paid on the prepayment date, the principal amount of such 2005 Bonds shall continue to bear interest until payment thereof at the applicable Interest Rate. The 2005 Bonds may, subject to the calculations to be performed by the Bank at the time it receives notice from the City of its intent to prepay all or a portion of the 2005 Bonds, require a payment to the Bank of a "breakage fee," described below. In the event of prepayment, the City may be required pay the Bank an additional fee, determined in the manner provided below, to compensate the Bank for all losses, costs and expenses incurred In connection with such prepayment. Such additional fee, if applicable, shall be equal to the present value of the difference between (1) the amount that would have been realized by the Bank on the prepaid amount for the remaining term of the 2005 Bonds (taking into account the scheduled principal amortization of the 2005 Bonds) at 4.949% (the Federal Reserve H.15 Statistical Release rate for fixed-rate payers in interest rate swaps for a term corresponding to the term of the 2005 Bonds, interpolated to the nearest month, if necessary, that was in effect three Business Days prior to the delivery date of the 2005 Bonds) and (2) the amount that would be realized by the Bank by reinvesting such prepaid funds for the remaining term of the 2005 Bonds (taking into account the scheduled principal amortization of the 2005 Bonds) at the Federal Reserve H.15 Statistical Release rate for fixed-rate payers in interest rate swaps, interpolated to the nearest month, that was in effect three Business Day's prior to the prepayment date; both (1) and (2) discounted at the Interest Rate. Should the present value have no value or a negative value, the City may prepay the 2005 Bonds without paying any additional fee. Should the Federal Reserve no longer release rates for fixed-rate payers in interest rate swaps, the Bank may substitute the Federal Reserve H.15 Statistical Release with another similar index. The Bank shall provide the City with a written statement explaining the calculation of the additional payment, which statement shall, in absence of manifest error, be conclusive and binding on the City. Partial prepayments may be made subject to payment of an additional fee based upon the same calculation methodology described above. Any partial prepayment shall be applied WPB-FS11SANF0RDS\551 1127\105\1/11/05\16787.011500 7 Resolution No. 55-05 (' "~ first to any applicable breakage fee, then to accrued interest and then to installments of principal in inverse order of maturity and shall not postpone the due dates of, or relieve the amounts of, any scheduled installment payments due hereunder. 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 2005 Bonds may be ! manual or facsimile signatures. In case anyone or more of the officers who shall have signed I or sealed the 2005 Bonds shall cease to be such officer of the City before the 2005 Bonds so signed and sealed shall have been actually sold and delivered, such 2005 Bonds may nevertheless be sold and delivered as herein provided and may be issued as if the person who signed or sealed such 2005 Bonds had not ceased to hold such office. The 2005 Bonds may be signed and sealed on behalf of the City by such person who at the actual time of the execution of the 2005 Bonds shall hold the proper office, although at the date the 2005 Bonds shall be actually delivered such person may not have held such office or may not have been so authorized. The 2005 Bonds 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 2005 Bonds as shall bear thereon such certificate of authentication shall be entitled to any right or benefit under this Resolution and no 2005 Bonds 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 2005 Bonds executed on behalf of the City shall be conclusive evidence that the 2005 Bonds 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 CANCELLATION. The Registrar shall keep books for the registration of the 2005 Bonds and for the registration of transfers of the 2005 Bonds. The 2005 Bonds 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, 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 2005 Bond, the City shall issue in the name of the transferee a new 2005 Bond. The City, the Paying Agent and the Registrar shall deem and treat the person in whose name the 2005 Bonds shall be registered upon the books kept by the Registrar as the absolute Owner of such 2005 Bonds, whether such 2005 Bonds shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal of and interest on such 2005 Bonds as the same become due and for all 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 WPB-FS1\SANF0RDSI551 SI27.o&.8111/05\18787 .011500 8 Resolution No. 55-05 ( " /,\ upon such 2005 Bonds to the extent of the sum or sums so paid and neither the City, the Paying Agent nor the Registrar shall be affected by any notice to the contrary. In all cases in which the privilege of transferring the 2005 Bonds is exercised. the City $flail execl.ltEr~nd lh~ RUYI~~~I ~It~1l ~ulhunlluulu ~mJ d~h"~1 lltu 2005 !::Jundt:; in üccordül1oo ¡ with the provisions of this Resolution. The 2005 Bonds surrendered in any such transfers shall I 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 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 2005 Bonds 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 I made and such 2005 Bonds shall thereupon be canceled upon written acknowledgement from the Owner that the 2005 Bonds have been paid in whole. The 2005 Bonds so canceled may at I 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 2005 Bonds and one executed certificate shall be filed 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 2005 Bonds. In case any 2005 Bond shall become mutilated, destroyed, stolen or lost, the City shall execute and the Registrar shall authenticate and deliver a new 2005 Bond of like date, maturity and denomination as the 2005 Bond so mutilated, destroyed, stolen or lost; provided that, in the case of any mutilated 2005 Bond, such mutilated 2005 Bond shall first be surrendered to the City and, in the case of any lost, stolen or destroyed 2005 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 I destruction satisfactory to the City and the Registrar, together with indemnity satisfactory to them. In the event the 2005 Bonds shall be about to mature or have matured, instead of issuing a duplicate 2005 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 2005 Bond their reasonable fees and expenses in connection with this transaction. Any 2005 Bonds surrendered for replacement shall be canceled in the same manner as provided in Section 2.4 hereof. Any such duplicate 2005 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 2005 Bond be at any time found by anyone and such duplicate 2005 Bonds shall be entitled to equal proportionate benefits and rights as to lien on the source and security for payment from Pledged Revenues with the 2005 Bond issued hereunder. Section 2.6 CONDITIONS FOR ISSUANCE OF THE 2005 Bonds. Prior to the issuance of the 2005 Bonds, the City shall comply with the following conditions: (a) Deliver to the Bank a fully executed Tax Certificate; and (b) Deliver to the Bank a copy of a completed and executed Form 8038-G to be filed by the City with the Internal Revenue Service; and (c) Deliver to the Bank an opinion of Bond Counsel, satisfactory to the Bank, regarding the due authorization, execution, delivery, validity and enforceability of the 2005 WPB-FS1\SANF0RDSI5511127\/05\8111/05\18787.0115OO 9 Resolution No. 55-05 \ ( " ""ì Bonds and the due adoption of this Resolution and the Authorizing Resolution (enforceability of such instruments may be subject to standard bankruptcy exceptions and the like) and the exclusion of interest on the 2005 Bonds from gross income for federal income tax purposes, that the 2005 Bonds are not s ecified" rivate activit bonds" within the meanin of Section 57 a 5 , , item for purposes of computing the alternative minimum tax imposed by Section 55 of the Code (however, a portion of the interest on the 2005 Bonds owned by corporations may be subject to the federal alternative minimum tax which is based in part on adjusted current earnings); and (d) Deliver to the Bank an opinion of the City Attorney, satisfactory to the Bank, regarding the due authorization, execution, delivery, validity and enforceability of the 2005 Bonds, the Agreement and the due adoption of this Resolution and the Bond Resolution (enforceability may be subject to standard bankruptcy exceptions and the like); and (e) Deliver to the Bank one or more certificates of the City in form satisfactory to the Bank certifying, among other things, that the City is in compliance with the term of the Bond Resolution. Section 2.7 INCORPORATION OF TERMS OF AUTHORIZING RESOLUTION: EXCEPTION Unless otherwise provided in this Resolution, the terms and provisions of the Authorizing Resolution applicable to the 2005 Bonds are incorporated herein by reference and such terms shall have the same effect as if expressly stated herein. The Authorizing Resolution is hereby deemed amended to reflect that any authorized bonds not issued in calendar year 2004 will have the designation of the calendar year said authorized bonds are issued. ARTICLE III COVENANTS, FUNDS AND APPLICATION THEREOF Section 3.1 2005 BONDS GENERAL OBLIGATIONS OF THE CITY. That in each year while any of the 2005 Bonds are outstanding and unpaid, there shall be levied and collected a tax on all the taxable property within the City sufficient in an amount to pay the interest on the 2005 Bonds as it becomes due, and to provide for the payment of the principal of said Bonds at their maturity or earlier installment date, and the City is, and shall be irrevocably and unconditionally obligated to levy and collect such ad valorem taxes without limitation as to rate or amount on all the taxable property within the City, sufficient in amount to pay all principal of and interest on said 2005 Bonds, as the same shall become due. Section 3.2 2005 BONDS SECURED BY PLEDGE OF PLEDGED REVENUES. From and after the issuance of any of the 2005 Bonds and continuing until the payment of all 2005 Bonds as to principal and interest, the Pledged Revenues shall continue to be pledged for the prompt payment of principal of and interest on said 2005 Bonds and any applicable breakage fees. Section 3.3 COVENANTS OF THE CITY. As long as any of the principal of or interest on any of the 2005 Bonds shall be outstanding and unpaid, or until there shall have been set apart in the Sinking Fund in accordance with Section 13.H of the Authorizing Bond Resolution a sum sufficient to pay, when due, the entire principal of the 2005 Bonds remaining unpaid, together with interest accrued and to accrue thereon, the City covenants with the Bondholders as follows: ! I WPß.F81\SANF0RDSI/5611127\Q6\/11/05\18717 .011500 10 Resolution No. 55-05 , I I I I (" /~ (a) Tax Covenants Relating to the Internal Revenue Code of 1986, as amended. I f.ð.1'4.ð.."",1 i.... "'ð(1~ ..+i I~ ~r~~~~~+ ~:i~~~n')I~~~ ~X~~~i~~...t~¡~. ~~~~:~~;:o~e"'~~~~~~?::S3"o~ , requirement of the Code. In furtherance of the covenant contained in the preceding sentence, the City agrees to continually comply with the provisions of the Tax Certificate, as such certificate may be amended from time to time, as a source of guidance for achieving compliance with the Code. (2) The City covenants and agrees with the Bondholders that the City shall not take any action or omit to take any action, which action or omission, if reasonably expected on the date of initial issuance and delivery of the 2005 Bonds, would cause any of the 2005 ¡ Bonds to be "private activity bonds" or "arbitrage bonds" within the meaning of Sections 141(a) ! and 148(a), respectively, of the Code. (3) The City shall make any and all payments required to be made to the United States Department of the Treasury in connection with the 2005 Bonds pursuant to Section 148(f) of the Code. (4) Notwithstanding any other provision of this Resolution to the contrary, so long as necessary in order to maintain the exclusion from gross income for purposes of federal income taxation of interest on the 2005 Bonds, the covenants contained in this Section shall survive the payment of the 2005 Bonds and the interest thereon, including any payment or discharge thereof pursuant to Section 4.H of the Bond Resolution. (b) Sinking Fund. The Sinking Fund created and established under the Authorizing Resolution shall constitute a trust fund for the benefit of the Bondholder 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 and the Authorizing 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. Moneys on deposit in the Sinking Fund relating to the 2005 Bonds may be invested in Permitted Investments as authorized pursuant to the Authorizing Resolution, provided such investments mature not later than the next succeeding Payment Date. Subject to the terms and provisions of the Code, all income and earnings received from the investment and reinvestment of the moneys on deposit in the Sinking Fund shall remain on deposit in the Sinking Fund and be used in the same manner as other moneys on deposit therein. (c) Budget and Other Financial Information. The City shall, upon the request of the Bank, provide the Bank with a copy of its annual budget within thirty (30) days of adoption, a copy of its Comprehensive Annual Financial Report, when available and, upon the request of the Bank, such other financial information regarding the City as the Bank may reasonably request. (d) Compliance with Authorizing Resolution. The City shall comply with the terms of the Authorizing Resolution. WPB-FS11SANF0RDSI5511127.o&.8111/05\18787.0115OO 11 I Resolution No. 55-05 I i~ ( , ""\ Section 3.4 REMEDIES OF BONDHOLDER. Subject to the equal rights of any registered owner of Bonds issued pursuant to the provisions of the Authorizing Resolution, should the City default in any obligation created by this Resolution, the Bondholders may, in addition to any remedy set forth in this Resolution, either at law or in equity. by suit. action. , and all rights under the laws of the State of Florida, or granted and contained in this Resolution and may enforce and compel the performance of all duties required by this Resolution, or by any applicable statutes to be performed by the City or by any officer thereof. The City hereby agrees with the Bondholders 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 Bondholders the right to exercise any of the remedies provided to them under this Section 3.4 and Section 21 of the Authorizing Resolution. Notwithstanding anything in this Section 3.4 to the contrary the Bondholders' right to exercise any remedy permitted hereunder shall be consistent with the rights afforded all registered owners of Bonds issued pursuant to the provisions of the Authorizing Resolution. Section 3.5 APPLICATION OF 2005 Bonds PROCEEDS. The proceeds of the 2005 Bonds received by the City from the Bank on the Closing Date shall be used to finance the costs of a portion of the Projects. Section 3.6 ADJUSTMENTS TO INTEREST RATE. Upon a Determination of Taxability the interest rate on the Bonds shall be converted to the Taxable Rate. In addition, the City shall also pay to the Bank any additions to tax, penalties and any interest on the 2005 Bonds and any arrears in interest resulting from a Determination of Taxability. Any penalties in the form of interest or otherwise shall be paid by the City on the next succeeding Payment Date. The Interest Rate on the 2005 Bonds shall be adiusted automaticallv as of the effective date of any change in the maximum corporate tax interest rate presently being 35% (the "Maximum Corporate Tax Rate") based upon the following calculations. Upon such change, the Interest Rate shall be adjusted to the product obtained by multiplying the Interest Rate by a fraction, the numerator of which is equal to (i) one minus the Maximum Corporate Tax Rate in effect as of the day of adjustment and (ii) the denominator of which is equal to one minus the ! Maximum Corporate Tax Rate in effect as of the date the 2005 Bonds were initially issued. Notwithstanding any of the foregoing, it is the intention of the Bank (and any subsequent Owner of any of the 2005 Bonds) and the City that the interest rate on the 2005 Bonds never exceed the maximum rate permitted by law (the "Maximum Rate"). In the event any of the adjustments provided for in this Section 3.6 with respect to the 2005 Bonds would produce an interest rate on the 2005 Bonds in excess of the Maximum Rate, the Owner shall not be entitled I to receive interest in excess of the Maximum Rate (herein, such amount is referred to as "Excess Interesf'). At any time thereafter, if the 2005 Bonds shall bear interest at an Interest Rate, which is less than the Maximum Rate, the City shall also pay to the 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 combination of the Interest Rate on the 2005 Bonds, plus the Excess Interest, would exceed the Maximum Rate. WPB-FS11SANF0RDSI551 1127.0&.8111105\18787 011500 12 Resolution No. 55-05 I (" /,\ ARTICLE IV MISCELLANEOUS PROVISIONS Section 4.1 MODIFICATION OR AMENDMENT. No modification or amendment of , without the consent in writing of all of the Bondholders. i I 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 SEVERABILITY OF INVALID PROVISIONS. If anyone or more of the covenants, agreements or provisions of this Resolution should be held contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or provisions shall be null and void and shall be deemed separate from the remaining covenants, agreements or provisions and shall in no way affect the validity of any of the other provisions of this Resolution or of the 2005 Bonds 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 Authorizing 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 16th day of August, 2005. THE CITY OF DELRA Y BEACH, FLORIDA ATTEST: ~Ma;r ~ By: I'~ The fore oing resolution is hereby approved by as 0 form this 16th day of August, 5. By: I WPB-FS1\SANF0RDSI551 Sl27v05\8111106\16767 .011500 13 Resolution No. 55-05 I (' /,\ I EXHIBIT A BOND PURCHASE AGREEMENT THIS BOND PURCHASE AGREEMENT (the "Agreement") dated August _,2005, by and between SunTrust Bank, a banking corporation organized under the laws of the State of Georgia (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"). W!IN EªSgIH: WHEREAS, pursuant to the Act, as such term is defined in Resolution No. 61-04, as supplemented by Resolution No. 55-05 (collectively, the "Resolution"), adopted by the City Commission of the City on September 7, 2004 and August 16, 2005, respectively, the City authorized the issuance of $10,000,000 in aggregate principal amount of City of Delray Beach, Florida General Obligation Bonds, Series 2005 (Recreational and Cultural Projects), the "Bonds"); and WHEREAS, any capitalized term used in this Agreement and not otherwise defined shall I 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 and this Agreement, agreed to issue and sell to the Bank and the Bank has, pursuant to the terms of this Agreement and the terms and provisions of the Resolution, agreed to purchase, all I but not less than all, of the Bonds; and WHEREAS, on the date hereof, the Bank shall purchase the 2005 Bonds from the City in the principal amount of $10,000,000; and WHEREAS, the City and the Bank have heretofore negotiated the terms of the Bonds 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 Sale. Upon the terms and conditions set forth herein and in the Bonds and the Resolution and upon the representations and warranties of the City set forth in the Resolution, the Tax Certificate and other closing certificates, the City agrees to sell on this date the Bonds 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 Bonds issued by the City. The purchase price for the Bonds shall be equal to the principal amount of the Bonds so issued by the City. Since the dated date of the Bonds is the date the Bonds are issued, there will be no accrued interest as part of the purchase price. WPB-FS11SANF0RDS\551S127.o&.8111105\16787 011500 Resolution No. 55-05 A-1 I i : ] r ' /, 1 2. Private Placement Necotiated Sale. The Bank hereby acknowledges that the purchase of the Bonds from the City was on a negotiated private placement basis and that there has been no offering document prepared by the City in connection with such sale. 3. Conditions for Purchase. The Bank's agreement to purchase the Bonds on this date is subject to the satisfaction of the conditions set forth in Section 2.6 of Resolution No. 55- 05. The Bank's purchase of the Bonds 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 Bonds, the i 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 I 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 Bonds. The Bank represents to the City that it has not employed or used the services of any attorney or other professional in connection with the Bank's negotiations with the City and its purchase of the Bonds other than Shutts & Bowen, LLP, which fee, in the amount of $3,000 shall be paid by the City. 6. Trial bv Jurv 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 I 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 or the Resolution. 7. Effectiveness. This Agreement shall become effective upon the execution by the appropriate officials of the City and the Bank. 8. Headincs. 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. Governinc 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. I I I ! ~S1\SANF0RDSI5511127.o&.8111/05\16787.0115OO Resolution No. 55-05 A-2 I I ( , "'\ 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. SUNTRUST BANK By: Title: (SEAL) Date: August _, 2005 CITY OF DELRA Y BEACH, FLORIDA By: Title: (SEAL) Date: August _' 2005 ! ; i , WP8-FS1ISANFORDSl5611127V05\8111/05\18787.0115OO Resolution No. 55-05 A-3 (' /,\ EXHIBIT B FORM OF 2005 BOND UNITED STATES OF AMERICA STATE OF FLORIDA CITY OF DELRAY BEACH, FLORIDA GENERAL OBLIGATION BOND, SERIES 2005 (RECREATIONAl. AND CULTURAL PROJECTS) I nterest Rate Maturitv Date Dated Date 4.15% February 1, 2024 August _, 2005 REGISTERED OWN ER:-------------------------SU NTRUST BAN K--------------------------------- PRINCIPAL AMOUNT:-----------TEN MILLION DOLLARS ($10,000,000.00)------------------- 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 earlier upon optional prepayment as provided below, upon the presentation and surrender hereof at the City's Finance 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 "Paying Agent"), the Principal Amount outstanding from time to time and not previously repaid with interest thereon at the stated interest rate calculated on the basis of a 360-day year of 12 thirty-day months, on each Payment Date in the manner specified in the within described Bond Resolution to the registered owner. The interest rate on the Bond may be converted to a Taxable Rate or is otherwise adjusted as provided in the Bond Resolution (as defined below). 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 Bond is authorized to be issued in a principal amount of $10,000,000 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 Charter of the City of Delray Beach, Florida, as amended and supplemented and other applicable provisions of law (the "Act") and Resolution No. 61-04 duly adopted on September 7, 2004 and Resolution No. 55-05 duly adopted on August 16, 2005 (collectively, the "Bond 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 Bond and not otherwise defined, shall have the meaning ascribed to such term in the Bond 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 Bond exist, have happened and have been performed in regular and due form and time as required by the Laws and Constitution of the State of Florida and the Charter of the City applicable thereto and that Wf'6.FS11SANF0RDSI551927110518111105\187B7.0115OO Resolution No. 55-05 B-1 ( " /\ the issuance of this Bond, is in full compliance with all constitutional or statutory limitations or provisions. This Bond shall not be valid or become obligatory for any purpose or be entitled to any have been signed by an authorized officer of the Registrar. This Bond shall bear interest at the Interest Rate, as such rate may be adjusted in accordance with the terms of the Bond Resolution. Upon the occurrence of a Determination of Taxability this Bond shall bear interest at the Taxable Rate. The Interest Rate on the Bonds may also be adjusted in the event of a change in the maximum corporate tax rate in the manner described in the Bond Resolution. Interest shall be payable on February 1, 2006 and each August 1 and February 1 thereafter and principal on the Bonds, unless prepaid, shall be payable on each February 1, commencing February 1, 2014 in the years and amounts set forth below, provided that, in either case, 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 Bonds shall be secured and payable solely by the Pledged Revenues (as defined in the Bond i Resolution), all in the manner provided in the Bond Resolution. I Year Amount 2014 $ 720,000 2015 750,000 2016 785,000 2017 820,000 2018 860,000 2019 895,000 2020 940,000 2021 985,000 2022 1,030,000 2023 1,080,000 2024 * 1.135.000 Total $10,000,000.00 *Final Maturity Subject to the terms and provisions of the Section 2.2 of Resolution No. 55-05 of the City, the City may prepay this Bond in whole or in part, at any time or from time to time, without penalty or premium, except as provided below, by paying to the registered holder all or part of the principal amount of this Bond, together with the unpaid interest accrued on the amount of principal so prepaid to the date of such prepayment and any applicable breakage fee described , below. Each prepayment shall be made on such date and in such principal amount as shall be I specified by the City in a written notice delivered to the registered owner not less than two (2) WPB-FS11SANF0RDS\561 1127.0&.8111/05\18787.011500 Resolution No. 55-05 B-2 : ( , /"ì 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 Bond is to be paid. upon presentation and , the Paying Agent is not the City's Finance Department) and (ii) in case only part of the unpaid balance of principal of this Bond is to be paid, upon presentation of such Bond 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 Bond in the principal amount not redeemed. Notwithstanding the provisions of clause (ii) above, if all of the Bonds 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 and any applicable breakage fee described below, without surrender of this Bond. If, on the prepayment date, funds for the payment of the principal amount to be prepaid, together with unpaid interest accrued thereon and any applicable breakage fee described below, shall not have been provided to the Paying Agent, as above provided, the principal amount of this Bond shall continue to be outstanding and to bear interest until payment thereof at the Interest Rate. In the event of such prepayment, the City may be required to pay to SunTrust Bank, as the registered owner of the Bonds (herein, the "Bank"), an additional fee, determined in the manner provided below, to compensate the Bank for all losses, costs and expenses incurred in connection with such prepayment. Such additional fee shall be equal to the present value of the difference between (1) the amount that would have been realized by the Bank on the prepaid amount for the remaining term of the Bonds (taking into account the scheduled principal amortization of the 2005 Bonds) at 4.949% (the Federal Reserve H.15 Statistical Release rate for fixed-rate payers in interest rate swaps for a term corresponding to the term of the Bonds, interpolated to the nearest month, I' if necessary, that was in effect three Business Days prior to the delivery date of the Bonds) and , I (2) the amount that would be realized by the Bank by reinvesting such prepaid funds for the remaining term of the Bonds (taking into account the scheduled principal amortization of the ! 2005 Bonds) at the Federal Reserve H .15 Statistical Release rate for fixed-rate payers in interest rate swaps, interpolated to the nearest month, that was in effect three Business Day's prior to the prepayment date; both (1) and (2) discounted at the Interest Rate stated above. Should the present value have no value or a negative value, the City may prepay the Bonds with no additional fee. Should the Federal Reserve no longer release rates for fixed-rate payers in interest rate swaps, the Bank may substitute the Federal Reserve H.15 Statistical Release with another similar index. The Bank shall provide the City with a written statement explaining the calculation of the additional payment due, which statement shall, in absence of manifest error, be conclusive and binding. Partial prepayments may be made subject to payment of an additional fee based upon the same calculation methodology described above. Any partial prepayment shall be applied first to any applicable breakage fee, then to accrued interest and then to installments of principal in the inverse order of maturity and shall not postpone the due dates of, or relieve the amounts of, any scheduled installment payments due hereunder. This Bond is a general obligation of the City and both principal and interest are payable from ad valorem taxes levied by the City on all taxable property located in the City without limitation as to rate or amount. WPB-FS1ISANF0RDS\561 1127.0&.8111105\16787 .011500 Resolution No. 55-05 B-3 [ ( "- /",\ The terms and provisions of the Bond Resolution are incorporated in this Bond 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 Bond to be _ - ¿ -¿'. _ -J Commission 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 Bond to be dated the Dated Date set forth above. (SEAL) CITY OF DELRA Y BEACH, FLORIDA ATTEST: By: Mayor By: Clerk of the City of Delray Beach, Florida I WPB-FS1 1SANF0RDSI5511127.o&.8111/05\16787 .011500 Resolution No. 55-05 8-4 r " /,\ FORM OF CERTIFICATE OF AUTHENTICATION Date of Authentication: ,2005 r CITY OF DELRA Y BEACH Finance Department, as Registrar By: Authorized Officer i WPB-FS1 ISANFORDS\551927.o&.8111/05\16787 .011500 Resolution No. 55-05 8-5 (' /"\ ASSIGNMENT FOR VALUE RECEIVED the undersiQned sells, assigns and transfers unto (please print or typewrite name and address of assignee) the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints Attorney to transfer the within Bond 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 must correspond with the name as written upon the face of the within Bond in every particular, without alteration or enlargement, or any change whatever WPB-FS1ISANFORDSl551927\/05\8111/05\16787.0115OO Resolution No. 55-05 B-6 MEMORANDUM To: City Commission From: David T. Harden, City Manager f1lt1 r Subject: Proposed $10,000,000 General Obligation Bonds Date: August8,2005 The Finance Department has provided an analysis of bids received relative to the proposed Series 2005 $10,000,000 General Obligation Bond Issue that shall be executed for the purpose of financing a portion of the costs of acquisition and construction, reconstruction, and equipping of new and certain existing parks, new and existing recreation centers, a parking garage and capital improvements as part of the expansion of Old School Square and furnishings and fixtures for the new library (collectively, the Projects") and (ii) pay the costs of issuance of the Series 2005 Bonds. The Finance Department recommends passing Resolution No. 55-05 which authorizes SunTrust Bank, the low bidder, as the provider of the Series 2005 $10,000,000 Bonds. SunTrust Bank bid a fixed rate of 4.15% for a 19 year term. I concur with their recommendation. c: R.S. O'Connor, Treasurer commiss05taxememptgo.doc ~~ --- MEMORANDUM To: David T. Harden, City Manager From: .. Rebecca S. O'Connor, Treasurer ~ Joseph M. saff~5irector of Finance Thru: Subject: Proposed $10,000,000 General Obligation Bonds Backaround On August 5, 2005, the City Finance Department received bids for the above referenced financing (the "2005 Series Bonds"). The $10,000,000 General Obligation 2005 Series Bonds will provide tax exempt financing to finance (i) finance a portion of the costs of acquisition and construction, reconstruction, and equipping of new and certain existing parks, new and existing recreation centers, a parking garage and capital improvements as part of the expansion of Old School Square and the furnishings and fixtures for the new library (collectively, the "Projects"); and (ii) pay the costs of issuance of the Series 2005 Bonds. Terms The term of the Series 2005 Bonds will be approximately 19 years. The City will pay interest on the Series 2005 Bonds on February 1, 2006 and August 1, 2006 and then semi-annually on every February 1 and August 1 thereafter. Principal will be paid annually commencing on February 1, 2014 and ending on February 1, 2024. Bid ResDonses The City received responses from Bank of America, Fifth Third Bank, SunTrust, and Wachovia. The following is a tabulation of the bids. Financial Institution Rate Bank of America 4.53% Fifth Third Bank 6.48% SunTrust Bank 4.15% Wachovia 4.67% Recommendation We recommend the offer submitted by SunTrust, the lowest bidder. We have attached a draft Resolution No. 55-05 provided by Steve Sanford of Greenberg Traurig, the City's Bond Counsel, which authorizes the agreement with SunTrust. File: rfp/gocm.doc ---- RESOLUTION NO. 55-05 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRA Y BEACH, FLORIDA, AUTHORIZING THE ISSUANCE OF $10,000,000 IN AGGREGATE PRINCIPAL AMOUNT OF GENERAL OBLIGATION BONDS, SERIES 2005 (RECREATIONAL AND CULTURAL PROJECTS), OF THE CITY OF DELRA Y BEACH, FLORIDA FOR THE PURPOSE OF FINANCING ALL OR PORTION OF THE COSTS OF CERTAIN CAPITAL PROJECTS PARTICULARLY DESCRIBED IN RESOLUTION NO. 72-03; DETERMINING THE NEED FOR A NEGOTIATED SALE OF SUCH BONDS TO SUNTRUST BANK; PROVIDING FOR THE TERMS AND PAYMENT OF SAID GENERAL OBLIGATION BONDS, SERIES 2005 (RECREATIONAL AND CULTURAL PROJECTS) AND THE RIGHTS, REMEDIES AND SECURITY OF THE OWNERS THEREOF; MAKING CERTAIN COVENANTS RELATING TO THE ISSUANCE OF SAID GENERAL OBLIGATION BONDS, SERIES 2005 (RECREATIONAL AND CULTURAL PROJECTS); APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION OF A BOND PURCHASE AGREEMENT WITH SUNTRUST BANK; AUTHORIZING THE PROPER OFFICERS OF THE CITY TO DO ALL OTHER THINGS DEEMED NECESSARY OR ADVISABLE IN CONNECTION WITH THE ISSUANCE OF SAID BONDS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Commission of Delray Beach, Florida (the "City Commission") did, on September 7, 2004, adopt Resolution No. 61-04 (the "Authorizing Resolution") authorizing the issuance of not exceeding $24,000,000 in initial aggregate principal amount of General Obligation Bonds, Series 2004 (Recreational and Cultural Projects) (the "Bonds"), for the purpose of financing all or a portion of the costs of certain capital projects particularly described in Resolution No. 72-03 (the "Projects"), adopted by the City Commission on October 21, 2003; and WHEREAS, any term not otherwise defined in this Resolution shall have the meaning ascribed to such term in the Authorizing Resolution; and WHEREAS, on September 30, 2004, the City, pursuant to the Authorizing Resolution, issued $14,000,000 of its General Obligation Bonds, Series 2004 (Recreational and Cultural Projects) thereby leaving $10,000,000 of general obligation bonds to be issued under the Authorizing Resolution; and WHEREAS, pursuant to the terms and provisions of the Authorizing Resolution and this Resolution, the City shall issue the remaining of general obligation bonds authorized under the Authorizing Resolution to be known as "City of Deiray Beach, Florida General Obligation Bonds, Series 2005 (Recreational and Cultural Projects)" (herein, the "2005 Bonds") to finance all or a portion of the costs of the Projects, including the costs of issuing such 2005 Bonds; and WHEREAS, the principal amount of the 2005 Bonds authorized under this Resolution shall not exceed $10,000,000; and WHEREAS, the 2005 Bonds shall be secured by a pledge of and lien on the Pledged Revenues (as herein defined); and WPB-fS1\SANFORDS\551927..o5\8l1111)5\ 16767.011500 Resolution No. 55-05 WHEREAS, City staff has previously solicited bids from qualified lending institutions to purchase the 2005 Bonds on a negotiated private placement basis; and WHEREAS, City staff has determined and the City Commission hereby concurs that Sun Trust Bank, a banking organization organized under the laws of the State of Georgia with its designated office in West Palm Beach, 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 2005 and other factors described herein, it would be in the best interest of the City to sell the 2005 Bonds to the Bank on a negotiated basis pursuant to the terms and provisions of the Authorizing Resolution, this Resolution and that certain Bond Purchase Agreement to be dated the date of delivery of the initial issuance of the 2005 Bonds (herein, the "Agreement") by and between the City and the Bank in substantially the form attached hereto as Exhibit A. 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 Authorizing Resolution. Section 1.2 FINDINGS. It is hereby ascertained, determined and declared: (a) That the City hereby authorizes that a portion of the Projects be financed from a portion of the proceeds derived from the 2005 Bonds issued pursuant to this Resolution and the Authorizing Resolution, together with all incidental and necessary costs and expenses associated therewith, as more fully set forth in Section 1.2(d) hereof. (b) That it is necessary and in the best economic interest of the City at this time to acquire, construct and implement the Projects. (c) That the Projects will serve valid municipal purposes. (d) That the cost of the Projects shall be deemed to include, but not be limited to, the cost of acquisition, construction, improving, renovating and equipping all or a portion of the Projects, the cost of all real or personal property necessary therefor; administrative expenses; design, engineering and legal expenses; the fees and expenses of Bond Counsel; the fees and reasonable expenses of counsel for the Bank; 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 Projects and the issuance of the 2005 Bonds herein authorized. , WPB-fS1\SANFORDS\551927v0518111105\16787.0115OO 2 Resolution No. 55-05 (e) That the 2005 Bonds are general obligations of the City and principal of and interest on the 2005 Bonds shall be payable from unlimited ad valorem taxes levied on all taxable property located in the City, all in the manner provided in the Authorizing Resolution. (f) That the City, having previously solicited bids for the sale of the 2005 Bonds, has determined that the best qualified bid for the 2005 Bonds was delivered by the Bank. (g) That the negotiated sale of the 2005 Bonds to the Bank is in the best interest of the City by reason of the nature of and schedule for the completion of the Projects and present market conditions. (h) That the Agreement, in the form attached hereto as Exhibit A, is 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 any capitalized term not otherwise defined herein, shall have the meaning ascribed to such term in the Authorizing 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 Counsel" 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 Authorizing Resolution" shall mean Resolution No. 61-04, adopted by the City Commission on September 7, 2004. "Business Day" shall mean any day other than a Saturday or Sunday, or a day on which the Bank is closed. "City" shall mean the City of Delray Beach, Florida, a municipal corporation in the County of Palm Beach, State of Florida and its successors and assigns. "City Commission" shall mean the duly constituted governing body of the City. "Closing Date" shall mean the date the City issues the 2005 Bonds. "Code" shall mean the Internal Revenue Code of 1986, as amended, the applicable Treasury Regulations promulgated thereunder and any administrative or judicial interpretations of the same published in a form on which the City may rely as a matter of law. "Determination of Taxability" shall mean the circumstance of interest paid or payable on the 2005 Bonds becoming includable for federal income tax purposes in the gross income of the Bondholder. A Determination of Taxability will be deemed to have occurred upon (i) the receipt by the City or Bondholder of an original or a copy of an Internal Revenue Service Technical Advice Memorandum or Statutory Notice of Deficiency which holds that any interest payable on the 2005 Bonds is includable in the gross income of the Bondholder for federal income tax purposes; (ii) the issuance of any public or private ruling of the Internal Revenue Service that WPB-FS1 ISANFORDS\551927v05\8111105\ 16787 .011500 3 Resolution No. 55-05 any interest payable on the 2005 Bonds is includable in the gross income of the Bondholder for federal income tax purposes; or (iii) receipt by the City or Bondholder of an opinion of a Bond Counsel that any interest on the 2005 Bonds has become includable in the gross income of the Bondholder for federal income tax purposes. For all purposes of this definition, a Determination of Taxability will be deemed to occur on the date as of which the interest on the 2005 Bonds is first deemed includable in the gross income of the Bondholder for federal income tax purposes. "Interest Rate" shall mean with respect to the 2005 Bonds, unless the 2005 Bonds bear interest at the Taxable Rate, a fixed rate of interest on the 2005 Bonds which shall be equal to 4.15% per annum. The Interest Rate shall be calculated on the basis of a 360 day year of twelve thirty-day months. "Maturity Date" shall mean, with respect to the unpaid principal of and interest on the 2005 Bonds, February 1, 2024. "Owner," "Bondholder" 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 2005 Bonds; provided no Bondholder may be the registered owner of less than $1,000,000 in the aggregate principal amount of the 2005 Bonds. "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. "Payment Date" shall mean, with respect to interest on the 2005 Bonds, each February 1 and August 1, commencing February 1, 2006 and with respect to scheduled principal on the 2005 Bonds, each February 1, commencing February 1, 2014 and on any other date the principal of the 2005 Bonds 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. The principal amount of 2005 Bonds payable each February 1 shall be set forth in Section 2.2 hereof. "Pledged Revenues" shall mean (i) the ad valorem taxes levied by the City on all taxable property in the City each year without limitation, as to rate or amount sufficient to pay debt service on the 2005 Bonds, deposited in the Sinking Fund created and established under the Authorizing Resolution, (ii) investment income received from the investment of moneys in the Sinking Fund and accounts established thereunder allocable to the 2005 Bonds and (iii) any other moneys deposited in the Sinking Fund or received by the Paying Agent in connection with the payment of principal and interest on the 2005 Bonds. "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. "Taxable Rate" shall mean the Interest Rate times 1.332. "Tax Certificate" shall mean the Arbitrage Certificate of the City executed on the Closing Date. WPB-FS1\SANFORDSI551927v05\8/11105\16787.011500 4 Resolution No. 55-05 "2005 Bonds" shall mean the $10,000,000 aggregate principal amount of General Obligation Bonds, Series 2005 (Recreational and Cultural Projects), authorized by the Authorizing Resolution and this Resolution 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 AUTHORIZING RESOLUTION CONSTITUTE CONTRACT. In consideration of the acceptance of the 2005 Bonds authorized to be issued hereunder by those who shall own the same from time to time, this Resolution and the Authorizing Resolution shall be deemed to be and shall constitute a contract between the City and the Bondholders 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 Bondholders. ARTICLE II AUTHORIZATION, TERMS, EXECUTION AND REGISTRATION OF 2005 BONDS Section 2.1 AUTHORIZATION OF 2005 Bonds. Subject and pursuant to the provisions of this Resolution and the Authorizing Resolution, obligations of the City of Delray Beach, Florida, to be known as "General Obligation Bonds, Series 2005" are hereby authorized to be issued, in the aggregate principal amount of Ten Million Dollars ($10,000,000) for the purpose of financing a portion of the costs of the Projects. Section 2.2 DESCRIPTION OF 2005 BONDS. Notwithstanding the form of Bonds set forth in the Authorizing Resolution, the text of the 2005 Bonds 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 2005 Bonds (initially issued in one (1) typewritten certificate) shall be dated the date of initial issuance of such 2005 Bonds. The 2005 Bonds shall be issued in registered form. Unless the interest rate on the 2005 Bonds is adjusted in accordance with Section 3.6 hereof, the 2005 Bonds shall bear interest on the outstanding principal amount of the 2005 Bonds at the Interest Rate and shall be payable on each Payment Date, commencing February 1, 2006. Unless all or a portion of the Bonds is optionally prepaid in accordance with the terms of this Resolution, the outstanding principal of the 2005 Bonds shall be payable on each February 1 in the years and amounts set forth below: [Left blank intentionally] WPB-FS1\SANFORDS\551927v05\8I11105\16787.0115OO 5 Resolution No. 55-05 - Year Amount 2014 $ 720,000 2015 750,000 2016 785,000 2017 820,000 2018 860,000 2019 895,000 2020 940,000 2021 985,000 2022 1,030,000 2023 1,080,000 2024* 1.135.000 Total $10,000,000.00 *Final Maturity Principal and interest on the 2005 Bonds 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 2005 Bonds shall be numbered in such manner as may be prescribed by the Registrar. The 2005 Bonds 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. Subject to the next succeeding paragraphs, the City may prepay the 2005 Bonds in whole or in part, at any time or from time to time, without penalty or premium, except as may be applicable by the provisions set forth below, by paying to the registered holder all or part of the principal amount of the 2005 Bonds, together with the unpaid interest accrued on the amount of principal so prepaid to the date of such prepayment and any applicable breakage fee described below. 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 2005 Bonds is to be paid, upon presentation and surrender of the 2005 Bonds 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 2005 Bonds is to be paid, upon presentation of such 2005 Bonds 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 2005 Bond in the principal amount not redeemed. Notwithstanding the provisions of clause (ii) above, if all of the 2005 Bonds are WPB-FS1\SANFORDS\551927v05\8111105\16787.011500 6 Resolution No. 55-05 - 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 and any applicable breakage fee described below, without surrender of the 2005 Bonds. If, on the prepayment date, funds for the payment of the principal amount to be prepaid, together with unpaid interest accrued thereon and any applicable breakage fee described below shall not have been provided to the Paying Agent, as above provided, the principal amount of the 2005 Bonds 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 2005 Bonds are registered in the name of the Bank, payments shall be effected by payment to the Bank of the principal and interest then due and any applicable breakage fee described below without surrender of the 2005 Bond so paid; 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 2005 Bonds 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 2005 Bonds which are prepaid shall cease to accrue. If said funds shall not have been so paid on the prepayment date, the principal amount of such 2005 Bonds shall continue to bear interest until payment thereof at the applicable Interest Rate. The 2005 Bonds may, subject to the calculations to be performed by the Bank at the time it receives notice from the City of its intent to prepay all or a portion of the 2005 Bonds, require a payment to the Bank of a "breakage fee," described below. In the event of prepayment, the City may be required pay the Bank an additional fee, determined in the manner provided below, to compensate the Bank for all losses, costs and expenses incurred In connection with such prepayment. Such additional fee, if applicable, shall be equal to the present value of the difference between (1) the amount that would have been realized by the Bank on the prepaid amount for the remaining term of the 2005 Bonds (taking into account the scheduled principal amortization of the 2005 Bonds) at 4.949% (the Federal Reserve H.15 Statistical Release rate for fixed-rate payers in interest rate swaps for a term corresponding to the term of the 2005 Bonds, interpolated to the nearest month, if necessary, that was in effect three Business Days prior to the delivery date of the 2005 Bonds) and (2) the amount that would be realized by the Bank by reinvesting such prepaid funds for the remaining term of the 2005 Bonds (taking into account the scheduled principal amortization of the 2005 Bonds) at the Federal Reserve H.15 Statistical Release rate for fixed-rate payers in interest rate swaps, interpolated to the nearest month, that was in effect three Business Day's prior to the prepayment date; both (1) and (2) discounted at the Interest Rate. Should the present value have no value or a negative value, the City may prepay the 2005 Bonds without paying any additional fee. Should the Federal Reserve no longer release rates for fixed-rate payers in interest rate swaps, the Bank may substitute the Federal Reserve H.15 Statistical Release with another similar index. The Bank shall provide the City with a written statement explaining the calculation of the additional payment, which statement shall, in absence of manifest error, be conclusive and binding on the City. Partial prepayments may be made subject to payment of an additional fee based upon the same calculation methodology described above. Any partial prepayment shall be applied WPB-FS1\SANFORDS\5519271105\8111105\16787.0115OO 7 Resolution No. 55-05 first to any applicable breakage fee, then to accrued interest and then to installments of principal in inverse order of maturity and shall not postpone the due dates of, or relieve the amounts of, any scheduled installment payments due hereunder. Section 2.3 EXECUTION OF THE 2005 Bonds. The 2005 Bonds 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 2005 Bonds may be manual or facsimile signatures. In case anyone or more of the officers who shall have signed or sealed the 2005 Bonds shall cease to be such officer of the City before the 2005 Bonds so signed and sealed shall have been actually sold and delivered, such 2005 Bonds may nevertheless be sold and delivered as herein provided and may be issued as if the person who signed or sealed such 2005 Bonds had not ceased to hold such office. The 2005 Bonds may be signed and sealed on behalf of the City by such person who at the actual time of the execution of the 2005 Bonds shall hold the proper office, although at the date the 2005 Bonds shall be actually delivered such person may not have held such office or may not have been so authorized. The 2005 Bonds 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 2005 Bonds as shall bear thereon such certificate of authentication shall be entitled to any right or benefit under this Resolution and no 2005 Bonds 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 2005 Bonds executed on behalf of the City shall be conclusive evidence that the 2005 Bonds 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 CANCELLATION. The Registrar shall keep books for the registration of the 2005 Bonds and for the registration of transfers of the 2005 Bonds. The 2005 Bonds 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, 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 2005 Bond, the City shall issue in the name of the transferee a new 2005 Bond. The City, the Paying Agent and the Registrar shall deem and treat the person in whose name the 2005 Bonds shall be registered upon the books kept by the Registrar as the absolute Owner of such 2005 Bonds, whether such 2005 Bonds shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal of and interest on such 2005 Bonds as the same become due and for all 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 WPB-FS1\SANFORDSI551927V05\8l11105\16787.011500 8 Resolution No. 55-05 --- upon such 2005 Bonds to the extent of the sum or sums so paid and neither the City, the Paying Agent nor the Registrar shall be affected by any notice to the contrary. In all cases in which the privilege of transferring the 2005 Bonds is exercised, the City shall execute and the Registrar shall authenticate and deliver the 2005 Bonds in accordance with the provisions of this Resolution. The 2005 Bonds 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 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 2005 Bonds 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 2005 Bonds shall thereupon be canceled upon written acknowledgement from the Owner that the 2005 Bonds have been paid in whole. The 2005 Bonds 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 2005 Bonds and one executed certificate shall be filed 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 2005 Bonds. In case any 2005 Bond shall become mutilated, destroyed, stolen or lost, the City shall execute and the Registrar shall authenticate and deliver a new 2005 Bond of like date, maturity and denomination as the 2005 Bond so mutilated, destroyed, stolen or lost; provided that, in the case of any mutilated 2005 Bond, such mutilated 2005 Bond shall first be surrendered to the City and, in the case of any lost, stolen or destroyed 2005 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 2005 Bonds shall be about to mature or have matured, instead of issuing a duplicate 2005 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 2005 Bond their reasonable fees and expenses in connection with this transaction. Any 2005 Bonds surrendered for replacement shall be canceled in the same manner as provided in Section 2.4 hereof. Any such duplicate 2005 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 2005 Bond be at any time found by anyone and such duplicate 2005 Bonds shall be entitled to equal proportionate benefits and rights as to lien on the source and security for payment from Pledged Revenues with the 2005 Bond issued hereunder. Section 2.6 CONDITIONS FOR ISSUANCE OF THE 2005 Bonds. Prior to the issuance of the 2005 Bonds, the City shall comply with the following conditions: (a) Deliver to the Bank a fully executed Tax Certif!cate; and (b) Deliver to the Bank a copy of a completed and executed Form 8038-G to be filed by the City with the Internal Revenue Service; and (c) Deliver to the Bank an opinion of Bond Counsel, satisfactory to the Bank, regarding the due authorization, execution, delivery, validity and enforceability of the 2005 WPB-FS1\SANFORDS\551927v05\8111/05\ 16787 .011500 9 Resolution No. 55-05 Bonds and the due adoption of this Resolution and the Authorizing Resolution (enforceability of such instruments may be subject to standard bankruptcy exceptions and the like) and the exclusion of interest on the 2005 Bonds from gross income for federal income tax purposes, that the 2005 Bonds are not specified "private activity bonds" within the meaning of Section 57(a)(5) of the Code and, therefore, the interest on the 2005 Bonds will not be treated as a preference item for purposes of computing the alternative minimum tax imposed by Section 55 of the Code (however, a portion of the interest on the 2005 Bonds owned by corporations may be subject to the federal alternative minimum tax which is based in part on adjusted current earnings); and (d) Deliver to the Bank an opinion of the City Attomey, satisfactory to the Bank, regarding the due authorization, execution, delivery, validity and enforceability of the 2005 Bonds, the Agreement and the due adoption of this Resolution and the Bond Resolution (enforceability may be subject to standard bankruptcy exceptions and the like); and (e) Deliver to the Bank one or more certificates of the City in form satisfactory to the Bank certifying, among other things, that the City is in compliance with the term of the Bond Resolution. Section 2.7 INCORPORATION OF TERMS OF AUTHORIZING RESOLUTION: EXCEPTION Unless otherwise provided in this Resolution, the terms and provisions of the Authorizing Resolution applicable to the 2005 Bonds are incorporated herein by reference and such terms shall have the same effect as if expressly stated herein. The Authorizing Resolution is hereby deemed amended to reflect that any authorized bonds not issued in calendar year 2004 will have the designation of the calendar year said authorized bonds are issued. ARTICLE III COVENANTS, FUNDS AND APPLICATION THEREOF Section 3.1 2005 BONDS GENERAL OBLIGATIONS OF THE CITY. That in each year while any of the 2005 Bonds are outstanding and unpaid, there shall be levied and collected a tax on all the taxable property within the City sufficient in an amount to pay the interest on the 2005 Bonds as it becomes due, and to provide for the payment of the principal of said Bonds at their maturity or earlier installment date, and the City is, and shall be irrevocably and unconditionally obligated to levy and collect such ad valorem taxes without limitation as to rate or amount on all the taxable property within the City, sufficient in amount to pay all principal of and interest on said 2005 Bonds, as the same shall become due. Section 3.2 2005 BONDS SECURED BY PLEDGE OF PLEDGED REVENUES. From and after the issuance of any of the 2005 Bonds and continuing until the payment of all 2005 Bonds as to principal and interest, the Pledged Revenues shall continue to be pledged for the prompt payment of principal of and interest on said 2005 Bonds and any applicable breakage fees. Section 3.3 COVENANTS OF THE CITY. As long as any of the principal of or interest on any of the 2005 Bonds shall be outstanding and unpaid, or until there shall have been set apart in the Sinking Fund in accordance with Section 13.H of the Authorizing Bond Resolution a sum sufficient to pay, when due, the entire principal of the 2005 Bonds remaining unpaid, together with interest accrued and to accrue thereon, the City covenants with the Bondholders as follows: WPB-FS1ISANFORDSI551927\105\8111105\16787.0115OO 10 Resolution No. 55-05 (a) Tax Covenants Relating to the Internal Revenue Code of 1986, as amended. (1 ) In order to maintain the exclusion from gross income for purposes of federal income taxation of interest on the 2005 Bonds, the City covenants to comply with each requirement of the Code. In furtherance of the covenant contained in the preceding sentence, the City agrees to continually comply with the provisions of the Tax Certificate, as such certificate may be amended from time to time, as a source of guidance for achieving compliance with the Code. (2) The City covenants and agrees with the Bondholders that the City shall not take any action or omit to take any action, which action or omission, if reasonably expected on the date of initial issuance and delivery of the 2005 Bonds, would cause any of the 2005 Bonds to be "private activity bonds" or "arbitrage bonds" within the meaning of Sections 141(a) and 148(a), respectively, of the Code. (3) The City shall make any and all payments required to be made to the United States Department of the Treasury in connection with the 2005 Bonds pursuant to Section 148(f) of the Code. (4) Notwithstanding any other provision of this Resolution to the contrary, so long as necessary in order to maintain the exclusion from gross income for purposes of federal income taxation of interest on the 2005 Bonds, the covenants contained in this Section shall survive the payment of the 2005 Bonds and the interest thereon, including any payment or discharge thereof pursuant to Section 4.H of the Bond Resolution. (b) Sinking Fund. The Sinking Fund created and established under the Authorizing Resolution shall constitute a trust fund for the benefit of the Bondholder 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 and the Authorizing 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. Moneys on deposit in the Sinking Fund relating to the 2005 Bonds may be invested in Permitted Investments as authorized pursuant to the Authorizing Resolution, provided such investments mature not later than the next succeeding Payment Date. Subject to the terms and provisions of the Code, all income and earnings received from the investment and reinvestment of the moneys on deposit in the Sinking Fund shall remain on deposit in the Sinking Fund and be used in the same manner as other moneys on deposit therein. (c) Budget and Other Financial Information. The City shall, upon the request of the Bank, provide the Bank with a copy of its annual budget within thirty (30) days of adoption, a copy of its Comprehensive Annual Financial Report, when available and, upon the request of the Bank, such other financial information regarding the City as the Bank may reasonably request. (d) Compliance with Authorizing Resolution. The City shall comply with the terms of the Authorizing Resolution. WPB-FS1\SANFORDSI551927v05\8/11105\16787 .011500 11 Resolution No. 55-05 Section 3.4 REMEDIES OF BONDHOLDER. Subject to the equal rights of any registered owner of Bonds issued pursuant to the provisions of the Authorizing Resolution, should the City default in any obligation created by this Resolution, the Bondholders 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 may enforce and compel the performance of all duties required by this Resolution, or by any applicable statutes to be performed by the City or by any officer thereof. The City hereby agrees with the Bondholders 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 Bondholders the right to exercise any of the remedies provided to them under this Section 3.4 and Section 21 of the Authorizing Resolution. Notwithstanding anything in this Section 3.4 to the contrary the Bondholders' right to exercise any remedy permitted hereunder shall be consistent with the rights afforded all registered owners of Bonds issued pursuant to the provisions of the Authorizing Resolution. Section 3.5 APPLICATION OF 2005 Bonds PROCEEDS. The proceeds of the 2005 Bonds received by the City from the Bank on the Closing Date shall be used to finance the costs of a portion of the Projects. Section 3.6 ADJUSTMENTS TO INTEREST RATE. Upon a Determination of Taxability the interest rate on the Bonds shall be converted to the Taxable Rate. In addition, the City shall also pay to the Bank any additions to tax, penalties and any interest on the 2005 Bonds and any arrears in interest resulting from a Determination of Taxability. Any penalties in the form of interest or otherwise shall be paid by the City on the next succeeding Payment Date. The Interest Rate on the 2005 Bonds shall be adiusted automaticallv as of the effective date of any change in the maximum corporate tax interest rate presently being 35% (the "Maximum Corporate Tax Rate") based upon the following calculations. Upon such change, the Interest Rate shall be adjusted to the product obtained by multiplying the Interest Rate by a fraction, the numerator of which is equal to (i) one minus the Maximum Corporate Tax Rate in effect as of the day of adjustment and (ii) the denominator of which is equal to one minus the Maximum Corporate Tax Rate in effect as of the date the 2005 Bonds were initially issued. Notwithstanding any of the foregoing, it is the intention of the Bank (and any subsequent Owner of any of the 2005 Bonds) and the City that the interest rate on the 2005 Bonds never exceed the maximum rate permitted by law (the "Maximum Rate"). In the event any of the adjustments provided for in this Section 3.6 with respect to the 2005 Bonds would produce an interest rate on the 2005 Bonds 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 2005 Bonds shall bear interest at an Interest Rate, which is less than the Maximum Rate, the City shall also pay to the 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 combination of the Interest Rate on the 2005 Bonds, plus the Excess Interest, would exceed the Maximum Rate. WPB-FS1ISANFORDSI551927v05\8111105\16787.0115OO 12 Resolution No. 55-05 ----~--- ARTICLE IV 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 Bondholders. 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 SEVERABILITY OF INVALID PROVISIONS. If anyone or more of the covenants, agreements or provisions of this Resolution should be held contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or provisions shall be null and void and shall be deemed separate from the remaining covenants, agreements or provisions and shall in no way affect the validity of any of the other provisions of this Resolution or of the 2005 Bonds 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 Authorizing 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 16th day of August, 2005. THE CITY OF DELRA Y BEACH, FLORIDA ATTEST: By: Mayor By: City Clerk The foregoing resolution is hereby approved by me as to form this 16th day of November, 2005. By: City Attorney WPß.FS1\SANFORDS\551927\105\8111105\16787.011500 13 Resolution No. 55-05 -- --- --- EXHIBIT A BOND PURCHASE AGREEMENT THIS BOND PURCHASE AGREEMENT (the "Agreement") dated August _,2005, by and between SunTrust Bank, a banking corporation organized under the laws of the State of Georgia (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"). W!I N s§§sI H: WHEREAS, pursuant to the Act, as such term is defined in Resolution No. 61-04, as supplemented by Resolution No. 55-05 (collectively, the "Resolution"), adopted by the City Commission of the City on September 7, 2004 and August 16, 2005, respectively, the City authorized the issuance of $10,000,000 in aggregate principal amount of City of Delray Beach, Florida General Obligation Bonds, Series 2005 (Recreational and Cultural Projects), the "Bonds"); and WHEREAS, any capitalized term 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 and this Agreement, agreed to issue and sell to the Bank and the Bank has, pursuant to the terms of this Agreement and the terms and provisions of the Resolution, agreed to purchase, all but not less than all, of the Bonds; and WHEREAS, on the date hereof, the Bank shall purchase the 2005 Bonds from the City in the principal amount of $10,000,000; and WHEREAS, the City and the Bank have heretofore negotiated the terms of the Bonds 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 Sale. Upon the terms and conditions set forth herein and in the Bonds and the Resolution and upon the representations and warranties of the City set forth in the Resolution, the Tax Certificate and other closing certificates, the City agrees to sell on this date the Bonds 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 Bonds issued by the City. The purchase price for the Bonds shall be equal to the principal amount of the Bonds so issued by the City. Since the dated date of the Bonds is the date the Bonds are issued, there will be no accrued interest as part of the purchase price. 2. Private Placement Necotiated Sale. The Bank hereby acknowledges that the purchase of the Bonds from the City was on a negotiated private placement basis and that there has been no offering document prepared by the City in connection with such sale. WPB-FS1\SANFORDSI551927v05\S111105\1S787.011500 Resolution No. 55-05 A-1 3. Conditions for Purchase. The Bank's agreement to purchase the Bonds on this date is subject to the satisfaction of the conditions set forth in Section 2.6 of Resolution No. 55- 05. The Bank's purchase of the Bonds 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 Bonds, 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 Bonds. The Bank represents to the City that it has not employed or used the services of any attorney or other professional in connection with the Bank's negotiations with the City and its purchase of the Bonds other than Shutts & Bowen, LLP, which fee, in the amount of $3,000 shall be paid by the City. 6. Trial by JUry 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 or the Resolution. 7. Effectiveness. This Agreement shall become effective upon the execution by the appropriate officials of the City and the Bank. 8. Headinos. 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. Governino 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. WPB-FS1\SANFORDSI551927v05\8111J05\16787.0115OO Resolution No. 55-05 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. SUNTRUST BANK By: Title: (SEAL) Date: August _, 2005 CITY OF DELRA Y BEACH, FLORIDA By: Title: (SEAL) Date: August _' 2005 WPB-FS1\SANFORDS\551927v05\BI11105\16787 .011500 Resolution No. 55-05 A-3 -- EXHIBIT B FORM OF 2005 BOND No. R- $10,000,000 UNITED STATES OF AMERICA STATE OF FLORIDA CITY OF DELRA Y BEACH, FLORIDA GENERAL OBLIGATION BOND, SERIES 2005 (RECREATIONAL AND CULTURAL PROJECTS) I nterest Rate Maturity Date Dated Date 4.15% February 1, 2024 August _' 2005 RE:(;ISlrE:RE:[) O\nlNE:R:-----------------------------SLJ,.lrRLJSlr ElANt(--------------------------------------- PRINCIPAL AMOUNT:--------------TEN MILLION DOLLARS ($10,000,000.00)--------------------- K,.OW 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 earlier upon optional prepayment as provided below, upon the presentation and surrender hereof at the City's Finance 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 "Paying Agent"), the Principal Amount outstanding from time to time and not previously repaid with interest thereon at the stated interest rate calculated on the basis of a 360-day year of 12 thirty-day months, on each Payment Date in the manner specified in the within described Bond Resolution to the registered owner. lrhe interest rate on the Bond may be converted to a Taxable Rate or is otherwise adjusted as provided in the Bond Resolution (as defined below). 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 Bond is authorized to be issued in a principal amount of $10,000,000 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 Charter of the City of Delray Beach, Florida, as amended and ~pplemented and other applicable provisions of law (the "Act") and Resolution No. 61-04 duly adopted on September 7, 2004 and Resolution No. 55-05 duly adopted on August 16, 2005 (collectively, the "Bond 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 Bond and not otherwise defined, shall have the meaning ascribed to such term in the Bond 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 Bond exist, have happened and have been performed in regular and due form and time as required by the Laws and Constitution of the State of Florida and the Charter of the City applicable thereto and that WPB-FS1ISANFOROS\551927v05\B/11105\16787.0115OO Resolution No. 55-05 B-1 the issuance of this Bond, is in full compliance with all constitutional or statutory limitations or provisions. This Bond shall not be valid or become obligatory for any purpose or be entitled to any security or benefit under the Bond Resolution until the certificate of authentication hereon shall have been signed by an authorized officer of the Registrar. This Bond shall bear interest at the Interest Rate, as such rate may be adjusted in accordance with the terms of the Bond Resolution. Upon the occurrence of a Determination of Taxability this Bond shall bear interest at the Taxable Rate. The Interest Rate on the Bonds may also be adjusted in the event of a change in the maximum corporate tax rate in the manner described in the Bond Resolution. Interest shall be payable on February 1, 2006 and each August 1 and February 1 thereafter and principal on the Bonds, unless prepaid, shall be payable on each February 1, commencing February 1,2014 in the years and amounts set forth below, provided that, in either case, 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 Bonds shall be secured and payable solely by the Pledged Revenues (as defined in the Bond Resolution), all in the manner provided in the Bond Resolution. Year Amount 2014 $ 720,000 2015 750,000 2016 785,000 2017 820,000 2018 860,000 2019 895,000 2020 940,000 2021 985,000 2022 1,030,000 2023 1,080,000 2024* 1.135,000 Total $10,000,000.00 *Final Maturity Subject to the terms and provisions of the Section 2.2 of Resolution No. 55-05 of the City, the City may prepay this Bond in whole or in part, at any time or from time to time, without penalty or premium, except as provided below, by paying to the registered holder all or part of the principal amount of this Bond, together with the unpaid interest accrued on the amount of principal so prepaid to the date of such prepayment and any applicable breakage fee described below. 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) WPB-FS1 ISANFOROSI551927v0518/11105\16787 .011500 Resolution No. 55-05 B-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 Bond is to be paid, upon presentation and surrender of such Bond 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 Bond is to be paid, upon presentation of such Bond 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 Bond in the principal amount not redeemed. Notwithstanding the provisions of clause (ii) above, if all of the Bonds 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 and any applicable breakage fee described below, without surrender of this Bond. If, on the prepayment date, funds for the payment of the principal amount to be prepaid, together with unpaid interest accrued thereon and any applicable breakage fee described below, shall not have been provided to the Paying Agent, as above provided, the principal amount of this Bond shall continue to be outstanding and to bear interest until payment thereof at the Interest Rate. In the event of such prepayment, the City may be required to pay to SunTrust Bank, as the registered owner of the Bonds (herein, the "Bank"), an additional fee, determined in the manner provided below, to compensate the Bank for all losses, costs and expenses incurred in connection with such prepayment. Such additional fee shall be equal to the present value of the difference between (1) the amount that would have been realized by the Bank on the prepaid amount for the remaining term of the Bonds (taking into account the scheduled principal amortization of the 2005 Bonds) at 4.949% (the Federal Reserve H.15 Statistical Release rate for fixed-rate payers in interest rate swaps for a term corresponding to the term of the Bonds, interpolated to the nearest month, if necessary, that was in effect three Business Days prior to the delivery date of the Bonds) and (2) the amount that would be realized by the Bank by reinvesting such prepaid funds for the remaining term of the Bonds (taking into account the scheduled principal amortization of the 2005 Bonds) at the Federal Reserve H.15 Statistical Release rate for fixed-rate payers in interest rate swaps, interpolated to the nearest month, that was in effect three Business Day's prior to the prepayment date; both (1) and (2) discounted at the Interest Rate stated above. Should the present value have no value or a negative value, the City may prepay the Bonds with no additional fee. Should the Federal Reserve no longer release rates for fixed-rate payers in interest rate swaps, the Bank may substitute the Federal Reserve H.15 Statistical Release with another similar index. The Bank shall provide the City with a written statement explaining the calculation of the additional payment due, which statement shall, in absence of manifest error, be conclusive and binding. Partial prepayments may be made subject to payment of an additional fee based upon the same calculation methodology described above. Any partial prepayment shall be applied first to any applicable breakage fee, then to accrued interest and then to installments of principal in the inverse order of maturity and shall not postpone the due dates of, or relieve the amounts of, any scheduled installment payments due hereunder. This Bond is a general obligation of the City and both principal and interest are payable from ad valorem taxes levied by the City on all taxable property located in the City without limitation as to rate or amount. WPB-FS1\SANFORDS\551927\105\B111105\16787.0115OO Resolution No. 55-05 B-3 The terms and provisions of the Bond Resolution are incorporated in this Bond 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 Bond to be signed by its Mayor, either manually or with his facsimile signature and the seal of the City Commission 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 Bond to be dated the Dated Date set forth above. (SEAL) CITY OF DELRA Y BEACH, FLORIDA ATTEST: By: . Mayor By: Clerk of the City of Delray Beach, Florida WPB-FS1\SANFORDSI551927v05\8111105I16787.011500 Resolution No. 55-05 8-4 FORM OF CERTIFICATE OF AUTHENTICATION Date of Authentication: ,2005 This Bond is the Bond delivered pursuant to the within mentioned Resolution. CITY OF DELRA Y BEACH Finance Department, as Registrar By: Authorized Officer WPB-FS1\SANFORDS\551927v05\8111/05\16767 011500 Resolution No. 55-05 B-5 ASSIGNMENT FOR VALUE RECEIVED the undersigned sells, assigns and transfers unto (please print or typewrite name and address of assignee) the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints Attorney to transfer the within Bond 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 must correspond with the name as written upon the face of the within Bond in every particular, without alteration or enlargement, or any change whatever WPB-FS1 ISANFORDS\551927\105\8111105\ 16787 .011500 Resolution No. 55-05 B-6 AGENDA ITEM NUMBER: ~(Y) AGENDA REQUEST Date: August 8, 2005 Request to be placed on: - Consent Agenda Special Agenda Workshop Agenda When: August 16, 2005 Description of agenda item: Approve Resolution #55-05 authorizing the issuance of $10,000,000 General Obligation Bonds and authorize the sale of such bonds to SunTrust Bank. ORDINANCE/RESOLUTION REQUIRED: YES NO Draft of Resolution Attached: X YES NO Recommendation: Recommend approval of the above. Department Head Signature: :?~~ " Determination of Consistency with Comprehensive Plan: City Attorney Review/Recommendation (if applicable): Budget Director Review (required on all items involving expenditure of funds): Funding available: Yes ~ No Funding alternatives (if applicable): n/a ~ Account Number: Account Description: Account Balance: City Manager Review: (/M Approved for Agenda: G) No Hold Until: Agenda Coordinator Review: Received: Action: Approved: Disapproved: P.O. #