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Res 34-13WHEREAS, on December 14, 1999, the City Commission (the "Commission ") of the City of Delray Beach, Florida (the "City ") did adopt Resolution No. 76 -99 (the "Bond Resolution ") authorizing the issuance, from time to tithe, of revenue bonds (the "Bonds ") to finance and refinance capital projects in the City; and WHEREAS, any capitalized term used in this Resolution and not otherwise defined, shall have the meaning ascribed to such term in the Bond. Resolution, and WHEREAS, pursuant to the Bond Resolution, the City Commission adopted. Resolution No. 47 -08, authorizing the issuance of City of Delray Beach, Florida Revenue Improvement Bonds, Series 2008 (taxable) in. the principal amount of not exceeding $2,629,000 (herein, the "Taxable Bonds "); and WHEREAS, the Taxable Bonds were issued in the principal amount of $3,000,000 to finance a portion of the City's Old School Square Parking Garage Project (the "Project "); and WHEREAS, the Taxable Bonds mature on September 1, 2013 and the City Commission has determined to refinance the Project by issuing City of Delray Beach, Florida Revenue Refunding Res No. 34 -13 1 Bonds, Series 2013 (Taxable) (the "2013 Bonds "), pursuant to the terms of the Bond Resolution and. this Resolution to prepay, together with other available moneys of the City, all of the outstanding Taxable Bonds; and WHEREAS, pursuant to the Bond Resolution, each series of Bonds issued thereunder shall be payable from the City's covenant contained in the Bond Resolution to budget and appropriate in each Fiscal Year, by budget amendment if necessary, Non -Ad Valorem Revenues and deposit the same in the Debt Service fund created and established under the Bond Resolution ( herein, the "City's Covenant "); and WHEREAS, pursuant to the terms and provisions of Section S of Article IV of the Bond Resolution and this Resolution, the City shall issue the 2013 Bonds in substantially the form attached hereto as Exhibit B; and WHEREAS, the principal amount of the 2013 Bonds authorized under this Resolution shall not exceed 2,629,000; and WHEREAS, the 2013 Bonds shall be secured by a pledge of and lien on the Pledged Revenues (as herein defined); and WHEREAS, City staff has previously solicited bids from qualified lending institutions to refinance the Project by the purchase of the 2013 Bonds at the most favorable terms to the City; and WHEREAS, City staff has determined and the City Commission hereby concurs that TD Bank, N.A., a national banking association organized under the laws of the United States with its designated office in Fort Lauderdale, Florida (herein, the "Bank ") has provided the best overall bid to the City; and WHEREAS, the City Commission hereby funds that in light of present market conditions, the aforementioned bid provided by the Bank, the necessity for the funds to prepay the Taxable Bonds prior to September 1, 2013 and other factors described herein, it would be in the best interest of the City to sell the 2013 Bonds to the Bank on a negotiated private placement basis pursuant to the terms and provisions of the Bond Resolution, this Resolution and that certain Bond Purchase Agreement dated the date of delivery of issuance of the 2013 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: TICLE I STATUTORY AUTHORITY; FINDINGS GS 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 Res NQ. 34 -13 2 supplemented, the Florida Constitution, Chapter 166, Florida Statutes, as amended and supplemented and other applicable provisions of law (collectively, the "Act ") and the authority provided for in the Bond Resolution. Section 1.2 FINDINGS. GS. It is hereby ascertained, determined and declared.: (a) That the City hereby authorizes that the Project be refinanced from the proceeds derived from the 2013 Bonds issued pursuant to this Resolution and the Bond Resolution, together with any incidental and necessary costs and expenses associated therewvith. (b) That the City Commission has previously detcrinined it to be necessary and in the best economic interest of the City to construct the Project. (c) That the Project serves a valid municipal purpose. (d) That the principal of and interest on the 2013 . Bonds shall be secured solely by the Pledged Revenues in the manner provided herein, provided that the Owner of the 2013 Bonds shall have no lien on any Non -Ad Valorem Revenues until deposited into the Debt 'Service Fund. The ad valorem taxing power of the City will never be necessary or authorized to pay the principal of and interest on the 2013 Bonds and the 2013 Bonds issued pursuant to this Resolution shall not constitute a lien upon any other property whatsoever of or in the City other than the net proceeds of any Take -Out Bonds or Sale Proceeds, when, and if, such proceeds are delivered to the City. (e) That the City, having previously solicited bids for the sale of the 2013 Bonds, has determined that the best qualified bid for the purchase of the 2013 Bonds was delivered by the Bank. (f) That the negotiated sale of the 2013 Bonds to the Bank is in the best interest of the City by reason of the nature of and schedule for need of funds to refinance the Project by prepayment of the Taxable Bonds and in light of present market conditions. (g) That the Agreement, in the form attached hereto as Exhibit A, and the 2013 .Bonds, in the form attached hereto as Exhibit B, are hereby approved, with such omissions, insertions and variations as may be necessary and desirable, as evidenced by the City's execution thereof and the Mayor (or in his absence, the Vice Mayor) and City Clerk are hereby authorized to execute the same on behalf of the City. (h) That pursuant to the provisions of the Bond Resolution and this Resolution, the City may issue obligations in the future secured by certain of the Pledged Revenues. (i) That any capitalized term not otherwise defined herein, shall have the meaning ascribed to such term in the Bond Resolution. Res Flo, 34 -13 3 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 Resolution" shall mean Resolution No. 76 --99, adopted by the City Commission on December 14, 1999. "Business Day" shall mean any day other than a Saturday or Sunday, or a day on which the Bank or London banks are closed. "City" shall mean the City of Delray Beach, 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 authorized principal. amount of the 2013 Bonds. "Default Rate" shall mean four hundred basis points above the actual Interest Rate in effect immediately prior to any default by the City under this Resolution. "Interest Rate" shall mean with respect to the 2013 Bonds, unless the 2013 Bonds bear interest at the Default Rate, a variable rate of interest on the 2013 Bonds which shall be equal to LIBOR, plus 62.5 basis points. The Interest Rate shall be calculated on the basis of a 360 day year of twelve thirty --day months and shall be recalculated by the Bank on the first business day of each month. "LIBOR" shall mean the rate of interest (rounded upwards if necessary to the next 100`' of one percent) equal to the British Bankers Association LIBOR ( "BBA LIBOR ") as published by Bloomberg (or such other commercially available source providing quotations of BBA LIBOR as designated by the Bank from time to time) at approximately 11:00 A.M. (London time) 2 Business Days prior to the first day of such LIBOR Interest Period for a term comparable to such LIBOR Interest Period; provided however, if more than one BBB LIBOR is specified, the applicable rate shall be the arithmetic :mean of all such rates. If, for any reason, such rate is not available, the term LIBOR shall mean the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/100 of 1% o) determined by the Bank to be the average rates per annuin at which deposits in dollars are offered for such LIBOR Interest Period to major banks in the 1 -ondon Interbank Market in London, England at approximately 11:00 A.M. J.ondon time) two Business Days prior to the first day of such LIBOR Interest Period for a term comparable to such LIBOR Interest Period. The effective interest rate applicable to the 2013 Bonds shall change at the end of each Interest Period. LIBOR Interest Period means initially, a period of one month, provided however, (i) if any LIBOR Res No. 34 -13 4 Interest Period would end on a day which is not a Business Day, such LIBOR Interest. Period shall be extended to the next succeeding Business Day (except that where the next succeeding Business Day falls in the next succeeding calendar month, then on the next preceding Business Day), (ii) no LIBOR Interest Period shall extend beyond the Maturity Date and (iii) any LIBOR Interest Period with respect to the 2013 Bonds that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such LIBOR Interest Period) shall end on the last Business Day of the relevant calendar month at the end of such LIBOR Interest Period. "Maturity Date" shall mean, with respect to the unpaid principal of and interest on the 2013 Bonds, April 15, 2016. "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 2013 Bonds; provided no Bondholder may be the registered owner of less than $1,000,000 in the aggregate principal amount of the 2013 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. "Pavinent Date" shall mean, with respect to interest on the 2013 Bonds, each June 1 and December 1, commencing December 1, 2013 and with respect to principal on the 2013 Bonds, the Maturity Date and on any other date the principal of the 2013 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. "Pledged Revenues" shall mean (a) with respect to interest on the 2013 Bonds, (i) the Non - Ad Valorem Revenues deposited in the Debt Service Fund created and established under the Bond Resolution, (ii) investment income received from the investment of moneys in the Debt Service Fund and accounts established thereunder and (iii) any other moneys deposited in the Debt Service Fund or received by the Paying Agent in connection with the payment of interest on the 2013 Bonds; (b) with respect to the payment of the principal of the 2013 Bonds on the Maturity Date, or earlier prepayment date (i) the Non Ad Valorem Revenue deposited in the Debt Service Fund pursuant to the City's Covenant, (ii) any proceeds from the Sale Proceeds, (iii) the net proceeds of the Take -Out Bonds, and (iv) any other moneys deposited in the Debt Service Fund or received by the Paying Agent in connection with the repayment of the 2013 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. Res Nor. 34-13 5 "Resolution" shall mean this Resolution as the same may from tirne to time be amended and supplemented in accordance with the terms hereof. "Sale Proceeds" shall mean the net proceeds received by the City derived from the sale of all or a portion of the Project financed with the proceeds of the T axable Bonds. "Take -Out Bonds" shall mean the Bonds, the City in-ay, but shalll not be required to issue, under the Bond Resolution to retire the 2013 Bonds on the Maturity Date.. "2013 Bonds" shall mean the not to exceed $2,629,000 aggregate principal amount of Revenue Refunding Bonds, Series 2013 (Taxable), authorized by the Bond 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 BOND RESOLUTION CONSTITUTE CONTRACT. In consideration of the acceptance of the 2013 Bonds authorized to be issued hereunder by those who shall own the same from time to tithe, this Resolution and the Bond 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, ATION, TERMS, EXECUTION AND REGISTRATION OF 2013 BONDS Section 2.1 AUTHORIZATION OF 2013 BONDS. Subject and pursuant to the provisions of this Resolution and the Bond Resolution, obligations of the City of Delray Beach, Florida, to be known as "Revenue Refunding Bonds, Series 2013 (Taxable)" are hereby authorized to be issued in the aggregate principal amount of not exceeding Three Million Dollars ($2,629,000) for the purpose of refinancing the Project by prepaying the Taxable Bonds. Section 2.2 DESCRIPTION OF 2013 BONDS. Notwithstanding the forin of Bonds set forth in the Bond Resolution, the text of the 2013 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 2013 Bonds (initially issued in one (1) typewritten certificate) shall be dated the date of initial issuance of such 2013 Bonds. The 2013 Bonds shall be issued in registered form. Unless the interest rate on the 2013 Bonds is adjusted in accordance with Section 3.7 hereof, the 2013 Bonds shall bear interest: on the outstanding principal amount of the 2013 Bonds at the Interest Rate and such interest shall be payable on each Payment Date, commencing December 1, 2013. Unless all or a portion of the 2013 Bonds is optionally prepaid in accordance with the terms of this Resolution, the outstanding principal of the 2013 Bonds shall be payable on the Maturity Date, Res No. 34 -13 6 The 2013 Bonds shall be issued in a not to exceed principal amount of $2,629,000, with the actual principal amount of the 2013 Bonds issued determined by the stated amount on the definitive 2013 Bonds delivered to the Bank. Principal and interest on the 2013 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 2013 Bonds shall be numbered in such manner as may be prescribed by the Registrar. The 2013 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 2013 . Bonds in whole or in part, at any time or from time to time, without penalty or premium, by paying to the registered holder all or part of the principal amount of the 2013 Bonds, together with the unpaid interest accrued on the amount of principal so prepaid to the date of such prepayment. Each prepayment shall be made on such date and in such principal amount as shall be specified by the City in a written notice delivered to the registered owner not less than two (2) Business Days prior. thereto. Notice having been given as aforesaid, the principal amount stated in such notice or the whole thereof, as the case may be, shall become due and payable on the prepayment date stated in such notice; and the amount of principal shall be paid (i) in case the entire unpaid balance of the principal of the 2013 . Bonds is to be paid, upon presentation and surrender of the 2013 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 20113 Bonds is to be paid, upon presentation of such 2013 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 2013 Bond imi the principal amount not redeemed. Notwithstanding the provisions of clause (ii) above, if all of the 2013 . 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, without surrender of the 2013 Bonds. If, on the prepayment date, funds for the payment of the principal amount to be prepaid, together with unpaid interest accreted thereon, shall not have been provided to the Paying Agent, as above provided., the principal amount of the 2013 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 2013 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 without surrender of the 2013 Bond; 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. Res No. 34-13 7 Upon a prepayment iii whole, the City understands that the Bank will promptly thereafter surrender the 2013 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 2013 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 2013 Bonds shall continue to bear interest until payment thereof at the applicable Interest Rate. Any partial prepayment shall not postpone the due dates of, or relieve the amounts of, any payments of interest due hereunder on the unpaid principal of the 2013 Bonds. Once the City prepays a principal amount of the 2013 Bonds, the Bank shall have no obligation to repurchase such amount if the City shall subsequently issue a life amount. Section 2.3 EXECUTION OF THE 2013 BONDS. The 2013 Bonds shall be executed in the name of the City by the signature of the Mayor or '`lice Mayor of the City and its official seal shall be affixed thereto or imprinted or reproduced thereon and attested by the City Clerk. The signatures of the Mayor or Vice Mayor of the City and City Clerk on the 2013 Bonds may be manual or facsimile signatures. In case any one or more of the officers who shall have signed or sealed the 2013 Bonds shall cease to be such officer of the City before the 2013 Bonds so signed and sealed shall have been actually sold and delivered, such 2013 Bonds may nevertheless be sold and delivered as herein provided and may be issued as if the person who signed or sealed such 2013 Bonds had not ceased to hold such office. The 2013 Bonds may be signed and sealed on behalf of dhe City by such person who at the actual time of the execution of the 20 13 Bonds shall hold the proper office, although at the date the 2013 Bonds shall be actually delivered such person may not have held such office or may not have been so authorized. The 2013 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 2013 Bonds as shall bear thereon such certificate of authentication shall be entitled to any right or benefit under this Resolution and no 2013 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 2013 . Bonds executed on behalf of the City shall be conclusive evidence that the 2013 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 boobs for the registration of the 2013 Bonds and for the registration of transfers of the 2013 Bonds. The 2013 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 Res No. 34 -13 letter addressed to the City as to the sophistication of the investor) unless such institutional holder is a bank or trust company, or unless such institutional holder, which is not a bank or trust company, certifies in writing to the City prior to the transfer that it is an "accredited investor" within the meaning of Rule 501 of the Securities Act of 1933, as amended and supplemented (the "33 Act ") or a qualified institutional buyer under Rule 144A of the 33 Act, in which case such approval shall not be required and upon surrender thereof at the office of the Registrar (the designated corporate trust office of the Registrar if the City's Finance Department is not the Registrar) with a written instrument of transfer satisfactory to the Registrar duly executed by the registered Owner or his duly authorized attorney. Upon the transfer of such 2013 Bond, the City shall issue in the name of the transferee a new 2013 Bond. The City, the Paying Agent and the Registrar shall deem and treat the person in whose name the 2013 Bonds shall be registered upon the books kept by the Registrar as the absolute Owner of such 2013 Bonds, whether such 2013 Bonds shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal of and interest on such 2013 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= upon such 2013 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 2013 Bonds is exercised, the City shall execute and the Registrar shall authenticate and deliver the 2013 Bonds in accordance with the provisions of this Resolution. The 2013 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 sure sufficient to pay any tax, fee or other governmental charges required to be paid with respect to such transfer. The 2013 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 2013 . Bonds shall thereupon be canceled upon written acknowledgement from the Owner that the 2013 Bonds have been paid in whole. The 2013 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 2013 Bonds and one executed certificate shall be fled with the City and the other executed certificate shall be retained by the Registrar (if not the City's Finance Department). Section 2.5 MUTILATED, DESTROYED STOLEN OR LOST 2013 FONDS. In case any 2013 . Bond shall become iutilated, destroyed, stolen or lost, the City shall execute and the Registrar shall authenticate and deliver a new 2013 . Bond of like date, maturity and clenonrination as the 2013 Bond so mutilated, destroyed, stolen or lost; provided that, in the case of any mutilated 2013 Bona, such .mutilated 2013 Bond shall first be surrendered to the City and, in the case of any lost, stolen or destroyed 2013 Bond, there shall first be furnished to the City and the Registrar (if not Res No 34 -13 9 the City's Finance Department) evidence of such loss, theft, or destruction satisfactory to the City and the Registrar, together with indemnity satisfactory to them. In the event the 2013 Bonds shall be about to mature or have matured, instead of issuing a duplicate 2013 Bond, the City may pay the same without surrender thereof. The City and the Registrar (if not the City's Finance Department) may charge the Owner of such 2013 . Bond their reasonable fees and expenses in connection with this transaction. Any 2013 Bonds surrendered for replacement shall be canceled in the same manner as provided in Section 2.4 hereof. 'any such duplicate 2013 Bond issued pursuant to this Section shall constitute additional contractual obligations on the part of the City, whether or not the lost, stolen or destroyed 2013 Bond be at any time found by anyone and such duplicate 2013 Bonds shall be entitled to equal . proportionate benefits and rights as to lien on the source and security for payment from. Pledged Revenues Xvith the 2013 . Bond issued hereunder. Section 2.6 CONDITIONS FOR ISSUANCE OF THE 2013 BONDS. Prior to the initial issuance of the 2013 Bonds, the City shall comply with the following conditions: (a) Can the Closing Date, deliver to the Bank an opinion of Bond Counsel, satisfactory to the Bank, regarding the due authorization, execution, delivery, validity and enforceability of the 2013 Bonds and the Agreement and the due adoption of this Resolution and the Bond Resolution (enforceability of such instruments may be subject to standard bankruptcy exceptions and the life); and (b) 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 terms of the Bond Resolution, including the anti- dilution test set forth in Section 4.E of Article III of the Bond Resolution. Section 2.7 INCORPORATION OF TERMS OF BOND RESOLUTION; EXCEPTION. Unless otherwise provided in this Resolution, the terms and provisions of the Bond Resolution applicable to the 2013 Bonds are incorporated herein by reference and such terms shall have the same effect as if expressly stated herein. ARTICLE COVENANTS, !' S AND APPLICATION THEREOF Section 3.12013 BONDS NOT TO BE INDEBTEDNESS OF THE CITY. The 2013 Bonds shall not be or constitute an indebtedness of the City within the meaning of any constitutional, statutory or other limitation of indebtedness, but shall be secured and payable solely by the Pledged Revenues. No Bondholder shall ever have the right to compel the exercise of the ad valorem taxing power of the City, or taxation in any form of any real property therein, to pay said 2013 Bonds or the interest thereon. The pledge of the Pledged Revenues will not constitute alien. upon any property of the City including any Non -Ad Valorem Revenues which have not been Res No. 34 -13 10 deposited into the Debt Service Fund other than the Sale Proceeds and the net proceeds of any Tape -(hut Bonds when, and if, such proceeds are delivered to the City. Section 3.2 2013 BLINDS. The lien of the 2013 Bonds on the Pledged Revenues constituting the Non -Ad Valorem Revenues deposited in the Debt Service Fund shall be on parity with any of the Bonds issued pursuant to the requirements of the Bond Resolution. Section 3.3 2013 BONDS SECURED BY PLEDGE OF PLEDGED REVENUES. From and after the issuance of the 2013 Bonds and continuing until the payment of all 2013 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 2013 Bonds. Section 3.4 COVENANTS OF THE CITE. As long as any of the principal of or interest on the 2013 Bonds shall be outstanding and unpaid, or until there shall have been set apart in the Debt Service Fund in accordance with Section 4.I-I of Article. III of the Bond Resolution a sum sufficient to pay, when due, the entire principal of the 2013 Bonds remaining unpaid, together with interest accrued and to accrue thereon, the City covenants with the Bondholders as follows; (a) Debt .Service Fund The Debt Service Fund created and established under the Bond Resolution shall constitute a trust fund for the benefit of the Bondholders and shall be held by the City and shall be kept separate and distinct from all other funds of the City and shall be used only for the purpose and in the manner provided in this Resolution. Notwithstanding the provisions of the next preceding sentence, the City may deposit the Pledged Revenues in a single bank account for the City, provided that adequate accounting procedures are maintained to reflect and control the restricted allocations of the funds on deposit therein for the various purposes of such funds. The 2013 Bonds shall have a co -equal lien on the Non -Ad Valorem Revenues deposited in the Debt Service Fund created under the Bond Resolution with respect to any Bonds issued or to be issued under the Bond Resolution (the "Parity Debt "). The Parity Debt shall not have a lien on the net proceeds of any Take -Out Bonds or any Sale Proceeds. The designation and establishment of the Debt Service Fund in and by the Bond Resolution shall not be construed to require the establishment of any completely independent self -- balancing fund, as such teen is commonly defined and used in governmental accounting, but rather is intended solely to constitute an allocation of certain revenues of the City for certain purposes and to establish certain priorities for application of such revenues as provided herein. Any excess amounts remaining in the Debt Service Fund constituting Non -Ad Valorem Revenues after payment has been made on the 2013 Bonds and any Parity Bonds on any Payment Date, may be withdrawn and deposited at the direction of the City to be used for any lawful municipal purpose.. Moneys on deposit in the Debt Service Fund may be invested in Permitted Investments as authorized pursuant to the Bond Resolution, provided such investments mature not later than the next succeeding Payment Date. All income and earnings received from the investment and Res No. 34 -13 11 reinvestment of the moneys on deposit in the Debt Service. Fund shall remain on deposit in the Debt Service Fund and be used in the same manner as other moneys on deposit therein. (b) Nora Ad Valorem Revenues, The City will not repeal, amend or modify any resolution or ordinance or tape any action within its power to take relating to the imposition and collection of Non -Ad Valorem Revenues in any manner so as to impair or adversely affect in any manner the availability of such Non -Ad Valorein Revenues to pay debt service on the 2013 Bonds in the manner provided herein. (c) Budget and Other Financial Infonnation. The City shall demonstrate in each annual budget that there are sufficient Non -Ad Valorem Revenues to pay the interest on the 2013 Bonds coining due in such Fiscal Year and sufficient Non -Ad Valorem Revenues to pay the outstanding principal in the Fiscal Year the Maturity Date occurs and to meet the City's other obligations hereunder and under the Bond Resolution. The City shall provide the Bank with a copy of its annual budget within thirty (30) days of adoption, a copy of its Comprehensive. Annual Financial Report ( "CAFW'), within two hundred and seventy (270) days after the end of the City's Fiscal Year and, upon the request of the Bank, such other financial information regarding; the City as the Bank may reasonably request. (d) Complrance a th Bond Resolution. The City shall comply w6th the terms of the Bond Resolution and shall not amend or supplement the Bond Resolution in any way that would have a materially adverse effect on the Bondholders. (e) Financial Covenants. The City covenants annually that based on the City's most recent CAFR that the net available General Fund Non -Ad Valorem Revenues shall be at least equal to 1.30 times the annual debt service on the 2013 Bonds and any Parity Debt. Notwithstanding the foregoing covenant, the term "debt service" shall not include the principal due on the 2013 Bonds or any other balloon debt or bond anticipation obligations. The term "net available General Fund Non -Ad Valorem Revenues" means all of the Non Ad Valorem Revenues of the City, including any surplus or excess froin prior fiscal years available for general use, minus the cost of the portion of essential governmental services that are payable from Non -.Ad Valorem Revenues. The term "essential governmental services" means ,general governmental and public safety expenses. The City fiurther covenants that so long as the 2013 Bonds are Outstanding and notwithstanding the provisions of clause (ii) of the first paragraph of Section 4.E. of Article III of the Bond Resolution, the coverage shall be "130 times average annual debt service" rather than "1.10 tithes average annual debt service," as set forth in such section. (f} Late Charges. If any payment due the Bank is more than fifteen (15) days overdue, a late charge of six percent (6 %) of the overdue payment shall be payable by the City to the Bank. Section 305 REMEDIES OF BONDHOLDERS. Subject to the equal rights of any registered owner of Parity Bonds issued pursuant to the provisions of the Bond Resolution, should Res No. 34 -13 12 the City default in any obligation created by this Resolution, the Bondholders may, in addition to any remedy set forth in this Resolution, either -,it law or in equity, by suit, action, mandamus or other proceeding in any court of competent jurisdiction, protect and enforce any and all rights under the laws of the State of Florida, or granted and contained in this Resolution and the Bond Resolution and may enforce and compel the performance of all duties required by this Resolution and the Bond. Resolution or by any applicable statutes to be performed by the City or by any officer thereof. The City hereby agrees with the Bondholders that the firing 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 3.5 and Section 4.0 of Article III of the Bond Resolution. Notwithstanding anything in this Section 3.5 to the contrary the Bondholders' right to exercise any remedy permitted hereunder shall be consistent with the rights afforded all registered owners of Parity Debt issued . pursuant to the provisions of the Bond Resolution, except that the holders of the Parity Debt shall have no rights or remedies with respect to any Sale Proceeds or the net proceeds of any Take -Out Bonds. Section 3.6 APPLICATION OF 2013 BOND PROCEEDS. The proceeds of the 2013 Bonds received by the City from the Bank shall be used to immediately prepay the Taxable Bonds in full plus pay all unpaid accrued interest thereon to the date of prepayment. Section 3.7 ADJILSTMENTS TO INTEREST RATE. Upon any default by the City under this resolution, the interest rate on the 2013 . Bonds shall be converted to the Default Rate. Notwithstanding any of the foregoing, it is the intention of the Bank (and any subsequent Owner of any of the 2013 Bonds) and the City that the interest rate on the 2013 Bonds never exceed the maximum rate permitted by law (the "Maximum Rate "). In the event the adjustment provided for in this Section 3.7 to the Default Rate with respect to the 2013 Bonds would produce an interest rate on the 2013 Bonds in excess of the Maximum Rate, the Owner shall not be entitled to receive interest in excess of the Maxiinurn Rate (herein, such amount is referred to as "Excess Interest "). At any time thereafter, if the 2013 Bonds shall bear interest at an Interest Rate, which is less than the N4axitnum 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 2013 Bonds, plus the Excess Interest, would exceed the Maximum Rate. Section 4.1 MODIFICATION € R 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. Res No. 34-13 13 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 any one or more of the covenants, agreements or provisions of this Resolution should be held contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or provisions shall be nr-iIl and void and shall be deemed separate from the remaining covenants, agreemcnts or provisions and shall in no way affect the validity of any of the other provisions of this Resolution or of the 2013 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 Bond Resolution, the provisions of this Resolution shall control. Section 4.5 EFFECTIVE DATE. This Resolution shall be effective imirhediately upon its adoption. PASSED AND ADOPTED in regular: session on this 20th day of August, 2013. X1 rEST: City Clerk Res No. 34 -13 14 I 00 - LFlwka -1a tw& _�r V a rat ..rk r.eAV J--iv r +erne tsgreezncily •ualeu :Pv igus-r... a ...4v t..:j.p.. by and between TD Bank, N.A., a national banking association organized under the laws of the United States (herein the "Bank ") and the City of Delray Beach, Florida, a municipal corporation of the State of Florida (together witli its successors and assigns, the "City "). W I T N E S S E T : WHEREAS, pursuant to the Act, as such term is defined in Resolution No. 76 -99, as supplemented by Resolution No. 34 -13 (collectively, the "Resolution "), adopted by the City Commission of the City on December 14, 1999 and .August 20, 2013, respectively, the City authorized the issuance of not exceeding $2,629,000 in aggregate principal amount of City of Delray Beach, Florida Revenue Refunding Bonds, Series 2013 (Taxable) (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, 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 terins and provisions of the Resolution, agreed to purchase all of the Bonds; and WHEREAS, on the date hereof, the Bank shall purchase the Bonds in the principal amount of $ ; 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 Sales. 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 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 fiends, 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 Negotiated Salle. The Bank hereby acknowledges that the purchase of the Bonds from the City is and will be on a negotiated private placement basis and that there has been no offering document prepared by the City in connection with such sales. 3. Conditions for Purchaser 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. 34 -13. Res No, 34-13 A -1 The Bank's purchase of the Bonds will constitute f-LLU evidence that such conditions have been satisfied or waived. accordance with, Section 24 8.385, Florida Statutes, as amended and supplemented. The above - referenced statements are attached to this Agreement as Schedule A. S. 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 Gray Robinson, P.A., which fee, in the amount of not exceeding $4,000 shall be paid by the City. G. Trial by - uly Waived. The City and the Bank, for mutual consideration, each acknowledged to be received by the other party hereto, mutually and willingly waive the right to a trial by a jury in connection with any and all claims by any party hereto against the other arising from or in connection with the transactions contemplated by this Agreement, the Line of Credit or the Resolution. 7. Effectiveness. This Agreement shall become effective upon the execution by the appropriate officials of the City and the Bank. S. Headings. The headings set forth in this Agreement are inserted for convenience only and shall not be deemed to be a part hereof. 9. Amendment. No modification, alteration or amendment to this Agreement shall be binding upon any party until such modification, alternation or amendment is reduced to writing and executed by all parties hereto. 10. Governing Law. The laws of the State of Florida shall govern this Agreement. 1.1. Counterparts. This Agreement may be signed in any number of counterparts with the same effect as if the signatures thereto and hereto were signatories upon the same instrument. [Signature page follows] Res Mho. 34 -13 A -2 IN WITNESS WHEREOF, the City and the Bank has caused this Agreement to be executed by its respective duly authorized officers all as of the date hereof. (SEAL) By: Tit] Date: August 2013 By:_ Title: Date: August , 2013 Res No. 34 -13 A -3 110,14:11 00,1198 i. Thi, interest on this Board is indirdable In the gross income of 'tl)e ! lolder for f deral income tax purposes. No. R- $2,629,000 Variable REGISTERED MMEAMM August , 2013 PRINCIPAL AMOUNT: Hundred 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 and not previously prepaid 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 inanner specified in the within described Bond. Resolution to the registered owner. The interest rate on the Bond may be converted to the Default Rate as provided in the Resolution No. 34 -13. The principal amount and accrued interest thereon is payable in any coin or currency of the United States of America, which, on the date of payment thereof, shall be legal tender for the payment of public, and private debts. This Bond is authorized to be issued in a principal amount of $2,629,000 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 arncndcd 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. 76 -99 duly adopted on December 14, 1999 and Resolution No. 34--13 duly adopted on August 20, 2013 (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 Res No. 34 -13 B-1 said resolution. Any term used in this Bond and not otherwise defined, shall have the meaning ascribed to such terse in the Bond Resolution. 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 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 Resolution No. 34 -13. Upon the occurrence of a default by tlne City under Resolution No. 34 -13, this Bond shall bear interest at the Default Rate. Interest on this Bond shall be payable on December 1, 2013 and each dune 1 and December 1 thereafter and principal on the Bonds, unless prepaid, shall be payable on the Maturity Date, provided that, in either case, if such payment date is not a Business Day, the payment shall be made on the next succeeding Business Day (each a "Payment Date "). The principal of and interest on the Bonds shall be secured and payable solely by the Pledged Revenues (as defined itn the Bond Resolution), all in the manner provided in the Bond Resolution. Subject to the terms and provisions of the Section 2.2 of Resolution No. 34 -13 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, by paying to the registered holder all or part of the principal ainotmt of this Bond, together with the unpaid interest accrued on the amount of principal so prepaid to the date of such prepayment. Each prepayment shall be made on such date and in such principal amount as shall be specified by the City in a written notice delivered to the registered owner not less than two (2) Business Days prior thereto. Notice having been given as aforesaid, the principal amount stated in such notice or the whole thereof, as the case may be, shall become due and payable on the prepayment date stated in such notice; and the amount of principal shall be paid (i) in case the entire unpaid balance of the principal of this Bond is to be paid, upon presentation and surrender of such Bond to the office of the Paying ?gent (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 naive of the Bank, a partial prepayment may be effected by payment to the Bank of the principal, together with unpaid interest accrued thereon, without surrender of this Bond. If, on the prepayment date, funds for the payment of the principal amount to be prepaid, together with unpaid interest accrued thereon, shall not have been provided to the Paying Agent, as above provided, the principal amount of this Bond shall continue to be outstanding and to bear interest until payment thereof at the Interest Rate. Fees No. 34 -13 B -2 Any partial prepayment shall not postpone the due dates of, or relieve the amounts of, any payments due hereunder, This-Bond shall not be a d shall_ _not__constitute_n_indel�tednes - of_the --City - vith�n the secured and payable solely by the Pledged. Revenues. No Holder of this Bond shall ever have the right to compel the exercise of ad valoretn taxing power of the City, or taxation in any form of any real property therein to pay= the Bond or the interest thereon. No holder shall have a lien on any Non -Ad Valorem. Revenues until deposited into the Debt Service Fund created and established under the Bond Resolution. The terms and provisions of the Bond Resolution are incorporated in tb s Bond as though such terms and provisions have been set out in full herein. IN WIT'NE'SS WHEREOF, the City of Delray Beach, Florida, has caused this Bond to be signed by its Mayor, either manually or Nvith his facsimile signature and the seal of the City Coinin scion 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. (Sl SAL) ATTEST: By: Clerk- of the City of Delray Beach, Florida By: Mayor Res No. 34 -13 B`3 Date of Authentication: , 20,13 ____ This Bond is the Bond delivered pursuant to the within mentioned Resolution. CITY OF DEL RAY BEACH Finance Departinent, as li.cgistrar m ", r Authorized Officer Res No. 34 -13 ASSIGNMENT ENT . tie rsi ned sew assigns and transfers unto pO AE iCEI�I_ (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: GF PB 383064972v5/0167S7.012400 NOTICE: The signature to this assignment trust correspond with the name as written upon the face of the within Bond in every particular, without alteration or enlargement, or any change whatever. Res No. 34 -13 B -5