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Res 11-02 RESOLUTION NO. 11-02 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AUTHORIZING THE ISSUANCE OF NOT TO EXCEED $22,000,000 IN AGGREGATE PRINCIPAL AMOUNT OF REVENUE BONDS, SERIES 2002, OF THE CITY OF DELRAY BEACH, FLORIDA FOR THE PURPOSE OF FINANCING THE ACQUISITION OF CERTAIN LANDS INITHIN THE CITY OF DELRAY BEACH, FLORIDA; TO FINANCE CERTAIN BEACH RENOURISHMENT PROJECTS; AND TO FINANCE ALL OR A PORTION OF THE COSTS OF ACQUIRING, CONSTRUCTING AND EQUIPPING A MUNICIPAL PARKING FACILrI'Y, AND ALL INCIDENTAL AND NECESSARY COSTS RELATING THERETO; DETERMINING THE NEED FOR A NEGOTIATED SALE OF SUCH BONDS TO SUNTRUST BANK; PROVIDING FOR THE TERMS AND PAYMENT OF SAID REVENUE BONDS, SERIES 2002, AND THE RIGHTS, REMEDIES AND SECURITY OF THE OWNERS THEREOF; MAKING CERTAIN COVENANTS RELATING TO THE ISSUANCE OF SAID REVENUE BONDS, SERIES 2002; APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION OF A LINE OF CREDIT 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 the City of Delray Beach, Florida (the 'City Commission"), hereby determines that it is in the best interest of the City of Delray Beach, Florida (the 'City"), to finance the acquisition of certain lands within the City of Delray Beach, Florida; to finance certain beach renourishment projects; and to finance all or a portion of the costs of acquiring, constructing and equipping a municipal parking facility, as further described on Exhibit C attached hereto, together with all incidental and necessary costs relating thereto (collectively, the '2002 Projects"); and WHEREAS, on December 14, 1999, the City Commission did adopt Resolution No. 76-99 (the 'Bond Resolution") authorizing the issuance, from time to time, of revenue bonds (the 'Bonds") to financial 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 each series of Bonds issued thereunder shall be payable solely 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; and WHEREAS, pursuant to the terms and provisions of the Bond Resolution and this Resolution, the City shall Issue a series of Bonds known as 'City of Delray Beach, Florida Revenue Bonds, Series 2002" (herein, the '2002 Bonds") to finance the costs of the 2002 Projects, including the costs of issuing such 2002 Bonds; and WHEREAS, the principal amount of the 2002 Bonds authorized under this Resolution shall not exceed $22,000,000; and Resolution No. 11-02 WHEREAS, the 2002 Bonds shall be secured by a pledge of and lien on the Pledged Revenues; and WHEREAS, City staff has previously solicited bids from qualified lending institutions to provide a line of credit or term loan as the vehicle by which the 2002 Bonds are to be issued and the 2002 Projects are to be financed; and WHEREAS, City staff has determined and the City Commission hereby mncurs that SunTrust 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 2002, and other factors described herein, it would be in the best interest of the City to sell the 2002 Bonds to the Bank on a negotiated basis pursuant to the terms and provisions of the Bond Resolution, this Resolution and that certain Line of Credit Agreement dated as of February 1, 2002 (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 STA?U'I'ORY 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 ct' Delray Beach, Florida, as amended and supplemented, the Florida Constitution, Chapter 166, Florida Statutes, as amended and supplemented, and other applicable provisions of law (collectively, the 'Act") and the authority provided for in the Bond Resolution. SECTION 1.2. FINDINGS. It is hereby ascertained, determined and declared: (a) That the City hereby authorizes that the 2002 Projects be financed from all or a part of the proceeds derived from the 2002 Bonds issued pursuant t~ this 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 to acquire, construct and implement the 2002 Projects in order to (7 provide the lands necessary to sell to the Palm Beach County School District (the 'District") in order for the District to construct a new high school servicing the Delrey Beach area; (ii) to provide for necessary beach renourishment in order to protect and enhance the City's beach and coastal resources; and (iii) to provide for a municipal public parking facility. (c) That the 2002 Projects will serve a valid municipal purpose. (d) That the cost of lhe 2002 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 Resolution No. 11-02 the 2002 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 2002 Projects and the issuance of the 2002 Bonds herein authorized. (e) That the principal of end interest on the 2002 Bonds shall be secured solely by the Pledged Revenues and payable from the Non-Ad Valorem Revenues Including such pledged revenues provided that the Owner of the 2002 Bonds shall have no lien on the NomAd 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 2002 Bonds, and the 2002 Bonds issued pursuant to this Resolution shall not constitute a lien upon any other property whatsoever of or in the City. (f) That the City, having previously solicited bids for the sale of the 2002 Bonds, has determined that the best qualif'~d bid for the 2002 Bonds was delivered by the Bank. (g) That the negotiated sale of the 2002 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 2002 Projects and the sale of the School Site (as defined below) to the District, the aforementioned solicitation of bids 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 pursuant to the provisions of the Bond Resolution and this Resolution, the City may issue obligations secured by Pledged Revenues. O) That any capitalized term not otherwise defined herein, shall have the meaning ascribed to such term in the Bond Resolution. SECTION 1.3 DEFINITIONS. That, in addition to terms defined elsewhere in this Resolution, the following terms shall have the following meanings unless the context otherwise clearly requires: 'Bond Counsel" shall mean Greenberg Traurlg, P.A. or my 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, as amended and supplemented. *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 goveming body of the City. Resolution No. 11-02 '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. 'District" shall mean the Palm Beach County ~chool District and its successors and assigns. "Determination of Taxability' shall mean the circ~mstance of Interest paid or payable on the 2002 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 2002 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 any interest payable on the 2002 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 2002 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 2002 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 2002 Bonds, unless the 2002 Bonds bear interest at the Taxable Rate or the interest rate is otherwise adjusted pursuant to Section 3.7 hereof, a variable rate ,of interest on the 2002 Bonds which, shall be equal to the sum of eighty- two percent (82%) of 30-day LIBOR, plus fifty-three basis points (.53%). The Interest Rate shall be adjusted monthly and shall be calculated on the basis of a 365/366 day year for actual days elapsed. 'LIBOR" shall mean the London Interbank Offered Rate offered by a specific group of London banks for U.S. dollar deposits of a stated maturity. LIBOR will be that rate as shown on the Telerate System, page 3750. 'Maturity Date" shall mean, with respect to the unpaid principal of and Interest on the 2002 Bonds, June 1, 2005. '2002 Bonds" shall mean the not to exceed $22,000,000 aggregate principal amount of Revenue Bonds, Series 2002, authorized by the Bond Resolution and this Resolution. 'Owner," 'Bondholder" or 'registered holder" or any stnilar term shall mean the Bank or, subject to the provisions of Section 2.4 hereof, any successor registered holder of the 2002 Bonds; provided no Bondholder may be the registered owner of less than $1,000,000 in the aggregate principal amount of the 2002 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 2002 Bonds, each June 1 and December 1, commencing June 1, 2002 and with respect to scheduled principal on the 2002 Bonds, the Maturity Date, and, prior to the Maturity Date, on any date the principal of the Resolution No. 11-02 2002 Bonds is optionally or mandatorily 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 (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 lhereunder, other than the escrow deposit bust fund established under a escrow deposit agreement, and (iii) any other moneys deposited in the Debt Service Fund or received by the Paying Agent in connection with the repayment of any Bonds. 'Registrar' shall mean the City's Finance Department or, if the City Commission shall so determine by subsequent proceeding, any bank or bust company and any successor bank or bust 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. 'School Site' means that certain tract of land within the City which will be purchased with a portion of the proceeds of the 2002 Bonds. Such land will only be purchased by the City if the District is obligated pursuant to an interlocal agreement with the City to purchase said land from the City. 'Taxable Rate" shall mean one hundred twenty-five percent (125%) of the Interest Rate adjusted monthly as the Interest Rate is adjusted. 'Tax Certificate~shall mean the Arbitrage Certificate of the City executed on the date of initial delivery of the 20'02 Bonds. 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 2002 Bonds authorized to be issued hereunder by those who shall own the same from time to time, Ibis 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, TERMS, EXECUTION AND REGISTRATION OF 2002 BONDS SECTION 2.1 AUTHORIZATION OF 2002 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 Bonds, Series 2002" are hereby authorized to be issued in the aggregate principal amount of not exceeding Twenty-Two Million Dollars ($22,000,000) for lhe purpose of financing the costs of the 2002 Projects. Until repaid, the principal amount of the 2002 Bonds will be equal to the principal amounts drawn and received by the City under the Agreement. Resolution No. 11-02 SECTION 2.2 DESCRIPTION OF 2002 BONDS. Notwithstanding the form of Bonds set forth in the Bond Resolution, the text of the 2002 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 2002 Bonds (initially issued in one (1) typewritten certificate) shall be dated the date of initial issuance. Unless the Interest rate on the 2002 Bonds is adjusted in accordance with Section 3.7 hereof, the 2002 Bonds shall bear interest on the outstanding principal amount of the 2002 Bonds from time to time at the Interest Rate and shall be payable on each Payment Date, commencing June 1, 2002. Unless all or a portion of the Bonds is optionally or mandatorily prepaid in accordance with the terms of this Resolution, the outstanding principal of the 2002 Bonds shall be payable on the Maturity Date. The 2002 Bonds shall be issued in registered form. Principal and Interest on the 2002 Bonds shall be payable at the dfice 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 2002 Bonds shall be numbered in such manner as may be prescribed by the Registrar. The 2002 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 paragraph, the City shall be obligated to prepay a portion of the 2002 Bonds, without penalty or premium, with the net proceeds received by the City in connection with the closing of the sale of the School Site to the District. Unless the Bank provides for an extension, the City shall be required to effect such mandatory prepayment within ten (10) Business Days of the closing of the sale of the School Site tothe District. The City may also prepay the 2002 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 2002 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, provided that notice of prepayment of the 2002 Bonds in full shall be provided to the registered owner of the 2002 Bonds at least ten (10) 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 2002 Bonds is to be paid, upon presentation and surrender of the 2002 Bond or 2002 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 2002 Bonds is to be paid, upon presentation of such 2002 Bond or 2002 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 2002 Bond in the principal amount not redeemed. Notwithstanding the provisions of clause (ii) above, if all of the 2002 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 a~:rued thereon, without surrender of the 2002 Bonds. 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 Resolution No. 11o02 provided to the Paying Agent, as above provided, the prindpal amount of the 2002 Bonds shall continue to be outstanding and to bear interest until payment thereof at the Interest Rate. SECTION 2.3 EXECUTION OF THE 2002 BONDS. The 2002 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 2002 Bonds may be manual or facstnile signatures. In case any one or more of the officers who shall have signed or sealed the 2002 Bonds shall cease to be such officer of the City before the 2002 Bonds so signed and sealed shall have been actually sold and delivered, such 2002 Bonds may nevertheless be sold and delivered as herein provided and may be issued as if the person who signed or sealed such 2002 Bonds had not ceased to hold such office. The 2002 Bonds may be signed and sealed on behalf of the City by such person who at the actual time of the execution of the 2002 Bonds shall hold the proper office, although at the date the 2002 Bonds shall be actually delivered such person may not have held such office or may not have been so authorized. The 2002 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 2002 Bonds as shall bear thereon such certificate of authentication shall be entitled to any right or benefit under this Resolution and no 2002 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 2002 Bonds executed on behalf of the City shall be conclusive evidence that the 2002 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 2002 Bonds and for the registration of transfers of the 2002 Bonds. The 2002 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 sun'ender 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 2002 Bond, the City shall issue in the name of the transferee a new 2002 Bond. The City, the Paying Agent and the Registrar shall deem and treat the person in whose name the 2002 Bonds shall be registered upon the books kept by the Registrar as the absolute Owner of such 2002 Bonds, whether such 2002 Bonds shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal of and interest on such 2002 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 Resolution No. 11-02 upon such 2002 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 2002 Bonds is exercised, the City shall execute and the Registrar shall authenticate ;nd deliver the 2002 Bonds in accordance with the provisions of this Resolution. The 2002 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 2002 Bonds paid or redeemed, in whole, either at or before maturity, shall be delivered to the Registrar when the payment or redemption is made, and such 2002 Bonds shall thereupon be promptly canceled. The 2002 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 off'~..ers describing the 2002 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 2002 Bonds. In case any 2002 Bond shall become mutilated, destroyed, stolen or lost, the City shall execute and the Registrar shall authenticate and deliver a new 2002 Bond of like date, maturity and denomination as the 2002 Bond so mutilated, destroyed, stolen or lost; provided that, in the case of any mutilated 2002 Bond, such mutilated 2002 Bond shall first be surrendered to the City and, in the case of~ny lost, stolen or destroyed 2002 Bond, there shall first be furnished to the City and the RegisVar (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 2002 Bonds shall be about to mature or have matured, Instead of issuing a duplicate 2002 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 2002 Bond their reasonable fees and expenses in connection with this transaction. Any 2002 Bonds surrendered for replacement shall be canceled in the same manner as provided in Section 2.4 hereof. Any such duplicate 2002 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 2002 Bond be at any time found by anyone, and such duplicate 2002 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 2002 Bond issued hereunder. SECTION 2.6 CONDITIONS FOR ISSUANCE OF THE 2002 BONDS. Prior to the issuance of the 2002 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 flied 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 2002 Bonds and the due aJoption of this Resolution (enforceability of such Instruments may be Resolution No. 11-02 subject to standard bankruptcy exceptions and the like) and the exclusion of Interest on the 2002 Bonds from gross income for federal income tax purposes, that the 2002 Bonds are not specified 'private activity bonds" within the meaning of Section 57(a)(5) of the Code and, therefore, the interest on the 2002 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 2002 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 he City Attorney, satisfactory to the Bank, regarding the due authorization, execution, delivery, validity and enforceability of the 2002 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. A~though the 2002 Bonds delivered to the Bank will set forth the notional amount of $22,000,000, the actual principal amount of the 2002 Bonds will, in all cases, be equal to the principal amount of moneys drawn and received under the Agreement and not otherwise previously prepaid. To the extent that the City does not issue all of the $22,000,000 in principal amount of the 2002 Bonds at the time of the initial draw under the Agreement, the City shall provide written notice to the Bank (signed by the City Manager, Finance Director or Treasurer of the City) of the City's intention to draw additional amounts under the Agreement at least two (2) Business Days prior to the date the City intends to receive the funds. Such notice shall confirm that the City is in co[npliance with terms and provisions of this Resolution and the Bond Resolution. Such additional amounts drawn under the Agreement shall constitute additional principal amount of 2002 Bonds without any further action required. Notwithstanding anything in this Resolution or the Agreement to the contrary, the City shall not be authorized to draw in excess of $11,500,000 under the Agreement prior to the time the City provides the Bank with a copy of an executed intedocal agreement between the City and the District reflecting the District's obligation to purchase the School Site from the City for a purchase price of at least $10,500,000, or until the date the Bank, in its sole discretion, otherwise allows the City to draw the full amount under the Agreement even if the aforementioned interlocal agreement has not been entered into. 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 2002 Bonds are incorporated herein by reference and such terms shall have the same effect as if expressly stated herein. Notwithstanding the foregoing, the Bank hereby agrees that it will not be necessary for the City to comply with Section 4.E of Article III of the Bond Resolution each time a draw is made under the Agreement. ARTICLE III COVENANTS, FUNDS AND APPLICATION THEREOF SECTION 3.1 2002 BONDS NOT TO BE INDEBTEDNESS OF THE CITY. The 2002 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 solely by the Pledged Revenues and payable from Non-Ad Valorem Revenues including the Pledged Revenues. No Bondholder shall ever have the fight to compel the exercise of the ad valorem Resolution No. 11-02 taxing power of the City, or taxation in any form of any real property therein, to pay said 2002 Bonds or the interest thereon. The pledge of the Pledged Revenues will not constitute a lien upon any property of the City including any Non-Ad Valorem Revenues which have not been deposited into the Debt Service Fund. SECTION 3.2 2002 BONDS. The lien of the 2002 Bonds on the Pledged Revenues shall be on parity with any of the Bonds issued pursuant to the requirements of the Bond Resolution except as such requirements have been made not applicable by the last sentence of Section 2.7 hereof. SECTION 3.3 ,2002 BONDS SECURED BY PLEDGE OF PLEDGED REVENUES. From and after the issuance of any of the 2002 Bonds, and continuing until the payment of all 2002 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 2002 Bonds, SECTION 3.4 COVENANTS OF THE CITY. As long as any of Ihe principal of or Interest on any of the 2002 Bonds shall be outstanding and unpaid, or until there shall have been set apart in the Debt Service Fund in accordance with Section 4.H of Article III of the Bond Resolution a sum sufficient to pay, when due, the entire principal of the 2002 Bonds remaining unpaid, together with interest accrued and to accrue thereon, the City covenants with the Bondholders as follows: (a) Tax Covenants Relating to the Internal Revenue Code of 1986, es amended. (1) In. order to maintain the exclusion from gross income for purposes of federal income taxation of Interest on the 2002 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 omissbn, if reasonably expected on the date of initial issuance and delivery of the 2002 Bonds, would cause any of the 2002 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 mede to the United States Department of the Treasury in connection with the 2002 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 2002 Bonds, the covenants contained in this Section shall survive the payment of the 2002 Bonds and the Interest thereon, including any payment or discharge thereof pursuant to Section 4.H of the Bond Resolution. (b) Debt Service Fund. The Debt Service Fund created and established under the Bond 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 prov'~ed in this Resolution. Notwithstanding the ~,~t~o~m~o~2/~,~a~o~o 10 Resolution No. 11-02 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 he funds on deposit therein for the various purposes of such funds. 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 seE-balancing fund, as such term is commonly defined and used in governmental accounting, but rather is intended solely to constitute an allocation of certain revenues of the City for certain purposes and to establish certain priorities for application of such revenues as provided herein. Any excess amounts remaining in the Debt Service Fund after payment has been made on the 2002 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. 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 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. (c) Non.Ad Valorem Revenues. The City will not repeal, amend or modify any resolution or ordinance or take any action within its power to take relating to the imposition and collection of NomAd Valorem Revenues in any manner so as to impair or adversely affect in any manner the availability of such Non- Ad Valorem Revenues to pay debt service on the 2002 Bonds as provided her~n. (d) Budget and Other Financial Information. The City shall demonstrate in each annual budget that there are sufficient Non-Ad Valorem Revenues to pay the principal of and interest on the 2002 Bonds coming due in such Fiscal Year and to meet the City's other obligations hereunder and under the Bond Resolution. 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. (e) The City shall comply with the terms of the Bond Resolution. SECTION 3.5 REMEDIES OF BONDHOLDER. Subject to the provisions of Section 4 of the Agreement and the equal rights of any registered owner of Bonds issued pursuant to the provisions of the Bond 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 my 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 3.5, and Section 4.G of Article III of the Bond Resolution. Notwithstanding anything in this Section 3.5 to the contrary Resolution No. 11-02 the Bondhoiders' 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 Bond Resolution. SECTION 3.6 APPLIC.a;rlON OF 2002 BONDS PROCEEDS,. The proceeds of the 2002 Bonds shall be used to finance the costs of the 2002 Projects. The City may replace all or a portion of the 2002 Projects for any other capital projects permitted under the Act; provided that Bond Counsel shall first deliver to Ute City and the Bank an opinion to the effect that such substitution will not adversely affect the exclusion of Interest on the 2002 Bonds from gross Income for federal income tax purposes and the Bank consents to such substitution. SECTION 3.7 ADJUSTMENTS TO INTEREST RATE. Upon a Determination of Taxability the interest rate on the Bonds shall be converted to the Taxable Rate. If at any time prior to March 1, 2003 Bond Counsel shall deliver an opinion b the City and the Bank to the effect that the 2002 Bonds are 'qualified tax-exempt obligations' within the meaning of Section 265(b) of the Code, the Interest Rate on the 2002 Bonds will be reduced or the formula to determine the Interest Rate will be modified so that the Bank is provided with the same after tax yield prior to such change. The Bank's good faith recalculation and/or modification will be effective on and after the date the 2002 Bonds are determined to be, in the opinion of Bond Counsel, "qualified tax-exempt obligations" within the meaning of Section 265(b) of the Code, which date may be the initial date of issuance of the 2002 Bonds. 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 SEVERABILFTY OF INVALID PROVISIONS. If any one or more of the covenants, agreements or provisions of this Resolution should be held contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or provisions shall be null and void and shall be deemed separate from the remaining covenants, agreements or provisions, and shall in no way affect the validity of any of the other provisions of this Resolution or of the 2002 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. ~,me.r,o~s,,~oeos~a~o~2/;~s;87~0m~00 12 Resolution No. 11-02 SECTION 4.5 upon its adoption. EFFECTIVE DATE. This Resolution shall be effective immediately PASSED AND ADOPTED IN special session on this 12th day of February, 2002. ATTEST: City Clerk The foregoing resolution and the form of 2002 Bond Iherein contained are hereby approved _1~ me as to form, language and execut~je/~th-is~"~12th day of February,'20~2. ,~ ~ 'City'At~omey "-/ THE CITY OF DELRAY BEACH, FLORIDA Mayor ~,~-,~o1~s^~=c~o$~<r~o~=/~2~o~6787~o~o~o 13 Resolution No. 11-02 EXHIBIT A UNE OF CREDIT AGREEMENT Dated as of February 1, 2002 WHEREAS, SunTrust Bank (the 'Bank'), has offered to make a closed-end line of credit (the 'Line of Credit') available to the City of Delray Beach, Florida (the 'City'), in the principal amount of not exceeding $22,000,000 under which the City may, from time to time, make drawings; and WHEREAS, the City of Commission of the City of Delray Beach, Florida on December 14, 1994, adopted Resolution No. 76-99 and on February 12, 2002, adopted Resolution No. 11-02 (collectively, the '2002 Bond Resolution") authorizing the issuance of not exceeding $22,000,000 in aggregate principal amount of City of Delray Beach, Florida Revenue Bonds, Series 2002 (the '2002 Bonds") which 2002 Bonds shall represent the City's obligation to reimburse the Bank for drawings made under the Line of Credit; and WHEREAS, the City and the Bank find it necessary to enter into this Agreement, to acknowledge the terms and provisions of the 2002 Bond Resolution adopted by the City and the extension of the Une of Credit by the Bank. NOW THEREFORE, the City and the Bank hereby agree as follows: ? 1. That the Bank shall make immediately available to the CI(y, pursuant to the terms and provisions of the 2002 Bond Resolution, the Line of Credit in an aggregate principal amount of not exceeding $22,000,000, which shall be available to the City in one or more drawings prior to January 1,2005. 2. That the Line of Credit shall expire on June 1, 2005. The outstanding principal amount of the drawing with interest thereon, shall become due and payable in accordance with the terms and provisions of the 2002 Bond Resolution. 3. That the Bank hereby accepts the terms and conditions set forth in the 2002 Bond Resolution applicable to the Line of Credit. 4. The City and the Bank, for mutual consideration, each acknowledged to be received by the other party hereto, mutually and willingly waive the dght to a trial by a jury in connection with any and all claims by any party hereto against the other arising from or in connection with the transactions contemplated by this Agreement or the 2002 Bond Resolution. 5. The Bank represents to the City that it is not purchasing the 2002 Bonds with a view to distributing the 2002 Bonds; provided, however, that the Bank, in its sole discretion, shall be permitted to assign or participate all or a ~rtion of the 2002 Bonds to any other financial Institution or accredited Investor (subject to the requirements of Section 2.4 of Resolution No. 11-02). \~wpb-I'v01\$ANFORD~\3~8202v07~2/12/0~I6787.010900 Resolution No. 11-02 SUNTRUST BANK (SEAL) By: Title: Date: February ,2002 CITY OF DELRAY BEACH, FLORIDA Attest By: T~de: Dated: February ,2002 City Clerk ? \~,VI~-srvOI\$ANFORD$\34,8202V07~2/12/O2X16787.Oi0900 Resolution No. 11-02 No. R. EXHIBIT B FORM OF 2002 BOND UNITED STATES OF AMERICA STATE OF FLORIDA CITY OF DELRAY BEACH, FLORIDA REVENUE BOND, SERIES 2002 !nterest Rate Maturity Date ,Dated Date Variable June 1, 2005 , ,2002 REGISTERED OWNER: -- [NAME OF BANK] NOTIONAL PRINCIPAL AMOUNT~--TWENTY.'rwo MILLION DOLLARS ($22,000,000.00)---- 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 mandatory or 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 end any bank or trust company becoming successor paying agent being herein called the 'Paying Agent"), the Principal Amount outstanding from time to time based on draws made by the City and received from the Bank pursuant to the terms of the Agreement (as such terms are defined in the hereinafter described Bond Resolution) and not previously prepaid with interest thereon at the applicable interest rate calculated in the manner described below and in the Bond Resolution calculated on the basis of a 365/366-day year of actual days elapsed, on each Payment Date in the manner specified in the within described Bond Resolution to the registered owner. Unless the interest rate on the Bond is converted to a Taxable Rate or is otherwise adjusted as provided in the Bond Resolution, the interest rate shall be equal to the sum of eighty-two percent (82%) of 30-day LIBOR, plus fifty-three per basis points (.53%). The Notional Principal Amount refiects the maximum principal amount of principal authorized to be issued under the Bond Resolution. 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 up to $22,000,000 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. 76-99 duly adopted on December 14, 1999 and Resolution No. 11-02 duly adopted on February 12, 2002 (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. \\w~V~%Ol\$A~cOROS\~8202~7~2/i2~O2~16787n10900 Resolution No. 11-02 It is hereby certified and recited that all acts, conditions and things required to exist, to happen, md 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 the issuance of this Bond, is in full compliance with all constitutional or statutory limitations or provisions. Thts 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. Interest shall be payable on June 1,2002, and each December 1 and June 1 thereafter end principal on the Bonds, unless prepaid, shall be payable on June 1, 2005 (the final maturity date of this Bond); provided that if such 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 solely by the Pledged Revenues (as defined in the Bond Resolution), and payable from the Non-Ad Valorem Revenues (as such term is defined in the Bond Resolution) including the Pledged Revenues, all in the manner provided in the Bond Resolution. Subject to the terms and provisions of the Section 2.2 of Resolu'don No. 11-02 of the City, the City shall be obligated to prepay a portion of this Bond, without penalty or premium, with the net proceeds ~received by the City in connection with the closing of the sale of the School Site to the District. Unless the Bank provides for an extension, the City shall be required to effect such mandatory prepayment within ten (10) Business Days of the closing of the sale of the School Site to the District. The City may also 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 amount 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, provided that notice of prepayment of the Bonds in full shall be provided to the registered owner of the Bonds at least ten (10) 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 b 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, without s~'render 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 Resolution No. 11-02 provided, the prindpal amount of this Bond shall continue to be outstanding and to bear interest until payment thereof at the Interest Rate. This Bond shall not be and shall not constitute an Indebtedness of the City within the meaning of any constitutional, statutory, charter or other limitations of indebtedness but shall be secured solely by the Pledged Revenues and payable from the Non-Ad Valorem Revenues which Includes the Pledged Revenues. No Holder of this Bond shall ever have the right to compel the exercise of ad valorem taxing power of the City, or taxation in any form of any real property therein to pay the 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 this Bond es though such terms and provisions have been set out in full herein. IN WITNESS WHEREOF, ~ City of Delrey 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 DELRAY BEACH, FLORIDA ATTEST: . ;? By:. By: Clerk of the City of Delray Beach, Florida Mayor Resolution No. 11-02 FORM OF CERTIFICATE OF AUTHENTICATION Date of Authentication: February. ,2002 This Bond is the Bond delivered pursuant to the within mentioned Resolution. CITY OF DELRAY BEACH Finance Department, as Registrar By:. Authorized Officer Resolution No. 11-02 ASSIGNMENT FOR VALUE RECEIVED the undersigned sells, assigns and transfers unto (please print or typewrite name, address and tax idenltfication number of assignee) lhe within Bond and all rights thereunder, and hereby Irrevocably constitutes and appoints , Attorney to transfer the wilhin Bond on the books kept for registration thereof, with full power of substitution in the premises. Dated: Signature Guaranteed: In the presence of: NOTICE: The signature to this assignment must correspond wtth the name as written upon the face of the within Bond in every particular, without alteration or enlargement, or any change whatever. Resolution No. 11-02 EXHIBIT C 2002 Projects (1) (2) (3) (4) Land acquisition costs, including all real estate commission, recording fees, survey costs, title costs and related items. The 2)02 beach renourishrnent project which is a fill placement project designed to protect and enhance the City's beach and coastal resources. The partial funding of the acquisition, construction and equipping of a municipal parking facility. All related, necessary and incidental engineering, design, labor, contingency and costs of issuing 2002 Bonds. Resolution No. 11-02 MEMORANDUM From: Subject: City Commission David T. H~~t~ Manager Proposed $22,000,000 Revenue Line of Credit Resolution No. R 11-02 Date: February 6, 2002 The City Commission approved SunTrust as the lending institution that will provide a Line of Credit to the City. The attached resolution determines the details of the loan transaction which are summarized as follows: Resolution Number 11-02 authorizes the issuance of Revenue Bonds not to exceed $22,000,000; approves the form and execution of a Line of Agreement with SunTrust at a variable rate of 82% of the 30-day Libor plus 53 points (adjusted monthly) for an approximate 3 year term for the purpose of financing the Atlantic High School land acquisition, the Beach Renourishment Program, as well as Library parking facility improvements; designates the borrowing as qualified tax-exempt bonds; and authorizes proper officers of the City to do all things necessary in connection with the issuance. The Finance Department recommends approval of this resolution. I concur with their recommendation. c: R.S. O'Connor, Treasurer $?.1 RESOLUTION NO. 11-02 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AUTHORIZING THE ISSUANCE OF NOT TO EXCEED $22,000,000 IN AGGREGATE PRINCIPAL AMOUNT OF REVENUE BONDS, SERIES 2002, OF THE CITY OF DELRAY BEACH, FLORIDA FOR THE PURPOSE OF FINANCING THE ACQUISITION OF CERTAIN LANDS WITHIN THE CITY OF DELRAY BEACH, FLORIDA; TO FINANCE CERTAIN BEACH RENOURISHMENT PROJECTS; AND TO FINANCE ALL OR A PORTION OF THE COSTS OF ACQUIRING, CONSTRUCTING AND EQUIPPING A MUNICIPAL PARKING FACILITY, AND ALL INCIDENTAL AND NECESSARY COSTS RELATING THERETO; DETERMINING THE NEED FOR A NEGOTIATED SALE OF SUCH BONDS TO SUNTRUST BANK; PROVIDING FOR THE TERMS AND PAYMENT OF SAID REVENUE BONDS, SERIES 2002, AND THE RIGHTS, REMEDIES AND SECURITY OF THE OWNERS THEREOF; MAKING CERTAIN COVENANTS RELATING TO THE ISSUANCE OF SAID REVENUE BONDS, SERIES 2002; APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION OF A LINE OF CREDIT 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 the City of Delray Beach, Florida (the "City Commission"), hereby determines that it is in the best interest of the City of Delray Beach, Flodda (the "City"), finance the acquisition of certain lands within the City of Delray Beach, Florida; to finance certain beach renourishment projects; and to finance all or a portion of the costs of acquiring, constructing and equipping a municipal parking facility, as further described on Exhibit C attached hereto, together with all incidental and necessary costs relating thereto (collectively, the "2002 Projects"); and WHEREAS, on December 14, 1999, the City Commission did adopt Resolution No. 76-99 (the ~Bond Resolution") authorizing the issuance, from time to time, of revenue bonds (the "Bonds") to financial 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 each sedes of Bonds issued thereunder shall be payable solely 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; and WHEREAS, pursuant to the terms and provisions of the Bond Resolution and this Resolution, the City shall issue a series of Bonds known as "City of Delray Beach, Florida Revenue Bonds, Series 2002" (herein, the "2002 Bonds") to finance the costs of the 2002 Projects, including the costs of issuing such 2002 Bonds; and WHEREAS, the principal amount of the 2002 Bonds authorized under this Resolution shall not exceed $22,000,000; and \\wpb-srv01\SANFORDS\3~'z02v04\2/7/02\16787.010900 Resolution No. 11-02 WHEREAS, the 2002 Bonds shall be secured by a pledge of and lien on the Pledged Revenues; and WHEREAS, City staff has previously solicited bids from qualified lending institutions to provide a line of credit or term loan as the vehicle by which the 2002 Bonds are to be issued and the 2002 Projects are to be financed; and WHEREAS, City staff has determined and the City Commission hereby concurs that SunTrust 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 2002, and other factors described herein, it would be in the best interest of the City to sell the 2002 Bonds to the Bank on a negotiated basis pursuant to the terms and provisions of the Bond Resolution, this Resolution and that certain Line of Credit Agreement dated as of February 1, 2002 (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 Bond Resolution. SECTION 1.2. FINDINGS. It is hereby ascertained, determined and declared: (a) That the City hereby authorizes that the 2002 Projects be financed from all or a part of the proceeds derived from the 2002 Bonds issued pursuant to this 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 to acquire, construct and implement the 2002 Projects in order to (i) provide the lands necessary to sell to the Palm Beach County School District (the "District") in order for the District to construct a new high school servicing the Delray Beach area; (ii) to provide for necessary beach renourishment in order to protect and enhance the City's beach and coastal resources; and (iii) to provide for a municipal public parking facility. (c) That the 2002 Projects will serve a valid municipal purpose. (d) That the cost of the 2002 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 \\wpb-a~tOI\SANFORDS\368202v04\2/7/02\16787.0109002 Resolution No. 11-02 the 2002 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 (not exceeding $2,000); 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 2002 Projects and the issuance of the 2002 Bonds herein authorized. (e) That the principal of and interest on the 2002 Bonds shall be secured solely by the Pledged Revenues and payable from the Non-Ad Valorem Revenues including such pledged revenues provided that the Owner of the 2002 Bonds shall have no lien on the 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 2002 Bonds, and the 2002 Bonds issued pursuant to this Resolution shall not constitute a lien upon any other property whatsoever of or in the City. (f) That the City, having previously solicited bids for the sale of the 2002 Bonds, has determined that the best qualified bid for the 2002 Bonds was delivered by the Bank. (g) That the negotiated sale of the 2002 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 2002 Projects and the sale of the School Site (as defined below) to the District, the aforementioned solicitation of bids 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 pursuant to the provisions of the Bond Resolution and this Resolution, the City may issue obligations secured by Pledged Revenues. (j) That any capitalized term not otherwise defined herein, shall have the meaning ascribed to such term in the Bond Resolution. SECTION 1.3 DEFINITIONS. That, in addition to terms defined elsewhere in this Resolution, the following terms shall have the following meanings unless the context otherwise clearly requires: "Bond 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, as amended and supplemented. "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. \\v~l\$ANFORD$\368202v04\2/7tO2\16787010900 3 Resolution No. 11-02 "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. "District" shall mean the Palm Beach County School District and its successors and assigns. "Determination of Taxability" shall mean the circumstance of interest paid or payable on the 2002 Bonds becoming includable for federal income tax purposes in the gross income of the Bondholder as a consequence of an act, omission or event by or within the control of the City. 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 2002 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 any interest payable on the 2002 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 2002 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 2002 Bonds is deemed includable in the gross income of the Bondholder for federal income tax purposes. "Interest Rate" shall mean with respect to the 2002 Bonds, unless the 2002 Bonds bear interest at the Taxable Rate or the interest rate is otherwise adjusted pursuant to Section 3.7 hereof, a variable rate of interest on the 2002 Bonds which, shall be equal to the sum of eighty- two percent (82%) of 30-day LIBOR, plus fifty-three basis points (.53%). The Interest Rate shall be adjusted monthly and shall be calculated on the basis of a 365/366 day year for actual days elapsed. "LIBOR" shall mean the London Interbank Offered Rate offered by a specific group of London banks for U.S. dollar deposits of a stated maturity. LIBOR will be that rate as shown on the Telerate System, page 3750. "Maturity Date" shall mean, with respect to the unpaid principal of and interest on the 2002 Bonds, June 1, 2005. "2002 Bonds" shall mean the not to exceed $22,000,000 aggregate principal amount of Revenue Bonds, Series 2002, authorized by the Bond Resolution and this Resolution. "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 2002 Bonds; provided no Bondholder may be the registered owner of less than $1,000,000 in the aggregate principal amount of the 2002 Bonds. "Paying Agent" shall mean the City's Finance Department or, if the City Commission shall so determine by subsequent proceeding, any bank or trust company and any successor bank or trust company appointed by the City to act as Paying Agent hereunder. "Payment Date" shall mean, with respect to interest on the 2002 Bonds, each June 1 and December 1, commencing June 1, 2002 and with respect to scheduled principal on the 2002 Bonds, the Maturity Date, and, prior to the Maturity Date, on any date the principal of the \\wpb-s~Ol\$ANFORD$\368202vO4\2/Tj02~16787.010900 4 Resolution No. 11-02 2002 Bonds is optionally or mandatorily 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 (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, other than the escrow deposit trust fund established under a escrow deposit agreement, and (iii) any other moneys deposited in the Debt Service Fund or received by the Paying Agent in connection with the repayment of any 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. "School Site" means that certain tract of land within the City which will be purchased with a portion of the proceeds of the 2002 Bonds. Such land will only be purchased by the City if the District is obligated pursuant to an interlocal agreement with the City to purchase said land from the City. "Taxable Rate" shall mean one hundred twenty-five percent (125%) of the Interest Rate adjusted monthly as the Interest Rate is adjusted. "Tax Certificate" shall mean the Arbitrage Certificate of the City executed on the date of initial delivery of the 2002 Bonds. 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 2002 Bonds authorized to be issued hereunder by those who shall own the same from time to time, this Resolution and the Bond Resolution shall be deemed to be and shall constitute a contract between the City and the 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 2002 BONDS SECTION 2.1 AUTHORIZATION OF 2002 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 Bonds, Series 2002" are hereby authorized to be issued in the aggregate principal amount of not exceeding Twenty-Two Million Dollars ($22,000,000) for the purpose of financing the costs of the 2002 Projects. Until repaid, the principal amount of the 2002 Bonds will be equal to the principal amounts drawn and received by the City under the Agreement. \\wpb-s~1\SANFORDS\368202v04\2/7/02\16787010900 5 Resolution No. 11-02 SECTION 2.2 DESCRIPTION OF 2002 BONDS. Notwithstanding the form of Bonds set forth in the Bond Resolution, the text of the 2002 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 2002 Bonds (initially issued in one (1) typewritten certificate) shall be dated the date of initial issuance. Unless the interest rate on the 2002 Bonds is adjusted in accordance with Section 3.7 hereof, the 2002 Bonds shall bear interest on the outstanding principal amount of the 2002 Bonds from time to time at the Interest Rate and shall be payable on each Payment Date, commencing June 1, 2002. Unless all or a portion of the Bonds is optionally or mandatorily prepaid in accordance with the terms of this Resolution, the outstanding principal of the 2002 Bonds shall be payable on the Maturity Date. The 2002 Bonds shall be issued in registered form. Principal and interest on the 2002 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 2002 Bonds shall be numbered in such manner as may be prescribed by the Registrar. The 2002 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 paragraph, the City shall be obligated to prepay a portion of the 2002 Bonds, without penalty or premium, with the net proceeds received by the City in connection with the closing of the sale of the School Site to the District. Unless the Bank provides for an extension, the City shall be required to effect such mandatory prepayment within ten (10) days of the closing of the sale of the School Site to the District. The City may also prepay the 2002 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 2002 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 2002 Bonds is to be paid, upon presentation and surrender of the 2002 Bond or 2002 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 2002 Bonds is to be paid, upon presentation of such 2002 Bond or 2002 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 2002 Bond in the principal amount not redeemed. Notwithstanding the provisions of clause (ii) above, if all of the 2002 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 2002 Bonds. If, on the prepayment date, funds for the payment of the principal amount to be prepaid, together with unpaid interest accrued thereon, shall not have been provided to the Paying Agent, as above provided, the principal amount of the 2002 Bonds shall continue to be outstanding and to bear interest until payment thereof at the Interest Rate. \\wplm. II~:)]\SANFORD$\368202v04\2/7/02\]6787.010900 6 Resolution No. 11-02 In connection with any prepayment (optional or mandatory) while the 2002 Bonds are owned by the Bank, the City shall give the Bank not more than ten, and not less than two Business Days' written notice of any proposed prepayment specifying the prepayment date and the principal amount of the 2002 Bonds to be so prepaid. SECTION 2.3 EXECUTION OF THE 2002 BONDS. The 2002 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 2002 Bonds may be manual or facsimile signatures. In case any one or more of the officers who shall have signed or sealed the 2002 Bonds shall cease to be such officer of the City before the 2002 Bonds so signed and sealed shall have been actually sold and delivered, such 2002 Bonds may nevertheless be sold and delivered as herein provided and may be issued as if the person who signed or sealed such 2002 Bonds had not ceased to hold such office. The 2002 Bonds may be signed and sealed on behalf of the City by such person who at the actual time of the execution of the 2002 Bonds shall hold the proper office, although at the date the 2002 Bonds shall be actually delivered such person may not have held such office or may not have been so authorized. The 2002 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 2002 Bonds as shall bear thereon such certificate of authentication shall be entitled to any right or benefit under this Resolution and no 2002 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 2002 Bonds executed on behalf of the City shall be conclusive evidence that the 2002 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 2002 Bonds and for the registration of transfers of the 2002 Bonds. The 2002 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 2002 Bond, the City shall issue in the name of the transferee a new 2002 Bond. The City, the Paying Agent and the Registrar shall deem and treat the person in whose name the 2002 Bonds shall be registered upon the books kept by the Registrar as the absolute Owner of such 2002 Bonds, whether such 2002 Bonds shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal of and interest on such 2002 Bonds as the same become due and for all other purposes. All such payments so made to any such \\wpb-st~01\SANFORD$\3~8202vO4\2/7/02\16787.0109007 Resolution No. 11-02 Owner or upon his/her order shall be valid and effectual to satisfy and discharge the liability upon such 2002 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 2002 Bonds is exercised, the City shall execute and the Registrar shall authenticate and deliver the 2002 Bonds in accordance with the provisions of this Resolution. The 2002 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 2002 Bonds paid or redeemed, in whole, either at or before maturity, shall be delivered to the Registrar when the payment or redemption is made, and such 2002 Bonds shall thereupon be promptly canceled. The 2002 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 2002 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 2002 Bonds. In case any 2002 Bond shall become mutilated, destroyed, stolen or lost, the City shall execute and the Registrar shall authenticate and deliver a new 2002 Bond of like date, maturity and denomination as the 2002 Bond so mutilated, destroyed, stolen or lost; provided that, in the case of any mutilated 2002 Bond, such mutilated 2002 Bond shall first be surrendered to the City and, in the case of any lost, stolen or destroyed 2002 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 2002 Bonds shall be about to mature or have matured, instead of issuing a duplicate 2002 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 2002 Bond their reasonable fees and expenses in connection with this transaction. Any 2002 Bonds surrendered for replacement shall be canceled in the same manner as provided in Section 2.4 hereof. Any such duplicate 2002 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 2002 Bond be at any time found by anyone, and such duplicate 2002 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 2002 Bond issued hereunder. SECTION 2.6 CONDITIONS FOR ISSUANCE OF THE 2002 BONDS. Prior to the issuance of the 2002 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 2002 \\wpb-s~O]\$ANFORDS\368202v04\217/02\16787.010900 8 Resolution No. 11-02 Bonds and the due adoption of this Resolution (enforceability of such instruments may be subject to standard bankruptcy exceptions and the like) and the exclusion of interest on the 2002 Bonds from gross income for federal income tax purposes, that the 2002 Bonds are not specified "private activity bonds" within the meaning of Section 57(a)(5) of the Code and, therefore, the interest on the 2002 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 2002 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 2002 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. Although the 2002 Bonds delivered to the Bank will set forth the notional amount of $22,000,000, the actual principal amount of the 2002 Bonds will, in all cases, be equal to the principal amount of moneys drawn and received under the Agreement and not otherwise previously prepaid. To the extent that the City does not issue all of the $22,000,000 in principal amount of the 2002 Bonds at the time of the initial draw under the Agreement, the City shall provide written notice to the Bank (signed by the City Manager, Finance Director or Treasurer of the City) of the City's intention to draw additional amounts under the Agreement at least two (2) Business Days prior to the date the City intends to receive the funds. Such notice shall confirm that the City is in compliance with terms and provisions of this Resolution and the Bond Resolution. Such additional amounts drawn under the Agreement shall constitute additional principal amount of 2002 Bonds without any further action required. Notwithstanding anything in this Resolution or the Agreement to the contrary, the City will only be authorized to draw $11,500,000 under the Agreement until the City provides the Bank with a copy of an executed interlocal agreement between the City and the Distdct reflecting the District's obligation to purchase the School Site from the City. 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 2002 Bonds are incorporated herein by reference and such terms shall have the same effect as if expressly stated herein. Notwithstanding the foregoing, the Bank hereby consents to the issuance of the Bonds by the City in an initial principal amount of not exceeding $22,000,000, even though additional amounts drawn under the Agreement will from time to time occur during the term of the Agreement without the necessity for the City to comply with Section 4.E of Article III of the Bond Resolution each time a draw is made under the Agreement. ARTICLE III COVENANTS, FUNDS AND APPLICATION THEREOF SECTION 3.'I 2002 BONDS NOT TO BE INDEBTEDNESS OF THE CITY. The 2002 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 solely by the Pledged Revenues and payable from Non-Ad Valorem Revenues including the Pledged \\wpb-sAK)l\SANFORDS\368202v04\2/7/02\16787.0109009 Resolution No. 11-02 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 2002 Bonds or the interest thereon. The pledge of the Pledged Revenues will not constitute a lien upon any property of the City including any Non-Ad Valorem Revenues which have not been deposited into the Debt Service Fund. SECTION 3.2 2002 BONDS. The lien of the 2002 Bonds on the Pledged Revenues shall be on parity with any of the Bonds issued pursuant to the requirements of the Bond Resolution except as such requirements have been made not applicable by the last sentence of Section 2.7 hereof. SECTION 3.3 2002 BONDS SECURED BY PLEDGE OF PLEDGED REVENUES, From and after the issuance of any of the 2002 Bonds, and continuing until the payment of all 2002 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 2002 Bonds. SECTION 3.4 COVENANTS OF THE CITY. As long as any of the principal of or interest on any of the 2002 Bonds shall be outstanding and unpaid, or until there shall have been set apart in the Debt Service Fund in accordance with Section 4.H of Article III of the Bond Resolution a sum sufficient to pay, when due, the entire principal of the 2002 Bonds remaining unpaid, together with interest accrued and to accrue thereon, the City covenants with the Bondholders as follows: (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 2002 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 2002 Bonds, would cause any of the 2002 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 2002 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 2002 Bonds, the covenants contained in this Section shall survive the payment of the 2002 Bonds and the interest thereon, including any payment or discharge thereof pursuant to Section 4.H of the Bond Resolution. (b) Debt Service Fund. The Debt Service Fund created and established under the Bond 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 \\wpD-s~OI\SANFORDS\3~8202v04\2/7/02\16787.010900 ] 0 Resolution No. 11-02 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 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 term is commonly defined and used in governmental accounting, but rather is intended solely to constitute an allocation of certain revenues of the City for certain purposes and to establish certain priorities for application of such revenues as provided herein. Any excess amounts remaining in the Debt Service Fund after payment has been made on the 2002 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. 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 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. (c) Non-Ad Valorem Revenues. The City will not repeal, amend or modify any resolution or ordinance or take any action within its power to take relating to the imposition and collection of Non-Ad Valorem Revenues in any manner so as to impair or adversely affect in any manner the availability of such Non- Ad Valorem Revenues to pay debt service on the 2002 Bonds as provided herein. (d) Budget and Other Financial Information. The City shall demonstrate in each annual budget that there are sufficient Non-Ad Valorem Revenues to pay the principal of and interest on the 2002 Bonds coming due in such Fiscal Year and to meet the City's other obligations hereunder and under the Bond Resolution. 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. (e) The City shall comply with the terms of the Bond Resolution. SECTION 3.5 REMEDIES OF BONDHOLDER. Subject to the provisions of Section 4 of the Agreement and the equal rights of any registered owner of Bonds issued pursuant to the provisions of the Bond 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 3.5, and Section 4.G of \\wpb-stvOI\SANFORDS\368202vO4\2/7/02\]6787.0109001 1 Resolution No. 1 1-02 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 Bonds issued pursuant to the provisions of the Bond Resolution. SECTION 3.6 APPLICATION OF 2002 BONDS PROCEEDS. The proceeds of the 2002 Bonds shall be used to finance the costs of the 2002 Projects. The City may replace all or a portion of the 2002 Projects for any other capital projects permitted under the Act; provided that Bond Counsel shall first deliver to the City and the Bank an opinion to the effect that such substitution will not adversely affect the exclusion of interest on the 2002 Bonds from gross income for federal income tax purposes and the Bank consents to such substitution. SECTION 3.7 ADJUSTMENTS TO INTEREST RATE. Upon a Determination of Taxability the interest rate on the Bonds shall be converted to the Taxable Rate. If at any time Bond Counsel shall deliver an opinion to the City and the Bank to the effect that the 2002 Bonds are "qualified tax-exempt obligations" within the meaning of Section 265(b) of the Code, the Interest Rate on the 2002 Bonds will be reduced or the formula to determine the Interest Rate will be modified so that the Bank is provided with the same after tax yield prior to such change. The Bank's good faith recalculation and/or modification will be effective on and after the date the 2002 Bonds are determined to be, in the opinion of Bond Counsel, "qualified tax-exempt obligations" within the meaning of Section 265(b) of the Code, which date may be the initial date of issuance of the 2002 Bonds. ARTICLE IV MISCELLANEOUS PROVISIONS SECTION 4.t 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 any one or more of the covenants, agreements or provisions of this Resolution should be held contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or provisions shall be null and void and shall be deemed separate from the remaining covenants, agreements or provisions, and shall in no way affect the validity of any of the other provisions of this Resolution or of the 2002 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. \\wpb-srv01\SANFORDS\368202v0~\2/7/02\1678701090012 Resolution No. 11-02 SECTION 4.5 upon its adoption. EFFECTIVE DATE. This Resolution shall be effective immediately PASSED AND ADOPTED IN special session on this 12th day of February, 2002. ATTEST: By: City Clerk The foregoing resolution and the form of 2002 Bond therein contained are hereby approved by me as to form, language and execution this 12th day of February, 2002. By: City Attorney THE CITY OF DELRAY BEACH, FLORIDA By: Mayor \\wpb.s~/O]\$ANFORD$\368202v04\2/7/02\]6787010900 1 3 Resolution No. 1 1-02 EXHIBIT A LINE OF CREDIT AGREEMENT Dated as of February 1, 2002 WHEREAS, SunTrust Bank (the "Bank'), has offered to make a closed-end line of credit (the "Line of Credit') available to the City of Delray Beach, Florida (the "City"), in the principal amount of not exceeding $22,000,000 under which the City may, from time to time, make drawings; and WHEREAS, the City of Commission of the City of Delray Beach, Florida on December 14, 1994, adopted Resolution No. 76-99 and on February 12, 2002, adopted Resolution No. 11- 02 (collectively, the "2002 Bond Resolution") authorizing the issuance of not exceeding $22,000,000 in aggregate principal amount of City of Delray Beach, Florida Revenue Bonds, Series 2002 (the "2002 Bonds") which 2002 Bonds shall represent the City's obligation to reimburse the Bank for drawings made under the Line of Credit; and WHEREAS, the City and the Bank find it necessary to enter into this Agreement, to acknowledge the terms and provisions of the 2002 Bond Resolution adopted by the City and the extension of the Line of Credit by the Bank. NOW THEREFORE, the City and the Bank hereby agree as follows: 1. That the Bank shall make immediately available to the City, pursuant to the terms and provisions of the 2002 Bond Resolution, the Line of Credit in an aggregate principal amount of not exceeding $22,000,000, which shall be available to the City in one or more drawings prior to June 1, 2005. 2. That the Line of Credit shall expire on June 1, 2005. The outstanding principal amount of the drawing with interest thereon, shall become due and payable in accordance with the terms and provisions of the 2002 Bond Resolution. 3. That the Bank hereby accepts the terms and conditions set forth in the 2002 Bond Resolution applicable to the Line of Credit. 4. The City and the Bank, for mutual consideration, each acknowledged to be received by the other party hereto, mutually and willingly waive the dght to a trial by a jury in connection with any and all claims by any party hereto against the other arising from or in connection with the transactions contemplated by this Agreement or the 2002 Bond Resolution. 5. The Bank represents to the City that it is not purchasing the 2002 Bonds with a view to distributing the 2002 Bonds; provided, however, that the Bank, in its sole discretion, shall be permitted to assign or participate all or a portion of the 2002 Bonds to any other financial institution or accredited investor (subject to the requirements of Section 2.4 of Resolution No. 11-02). \\wpb-s~01\SANFORDS\368202v04\2/7/02\16787.010900 Resolution No. 11-02 SUNTRUST BANK (SEAL) By: Title: Date: February ,2002 CITY OF DELRAY BEACH, FLORIDA Attest By: Title: Dated: February ,2002 City Clerk \\wp~] \$ANFOR'D$\368202v0~\2/7/02\] 6787 0] 0~00 Resolution No 11-02 No. R- EXHIBIT B FORM OF 2002 BOND UNITED STATES OF AMERICA STATE OF FLORIDA CITY OF DELRAY BEACH, FLORIDA REVENUE BOND, SERIES 2002 Interest Rate Maturity Date Dated Date Variable December 1, 2004 ,2002 REGISTERED OWNER: ........................... [NAME OF BANK] ...................................... NOTIONAL PRINCIPAL AMOUNT:---TWENTY-TWO MILLION DOLLARS ($22,000,000.00) ..... KNOW ALL MEN BY THESE PRESENTS, that the City of Delray Beach (the uCity") 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 mandatory or 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 based on draws made by the City and received from the Bank pursuant to the terms of the Agreement (as such terms are defined in the hereinafter described Bond Resolution) and not previously prepaid with interest thereon at the applicable interest rate calculated in the manner described in the Bond Resolution calculated on the basis of a 365/366-day year of actual days elapsed, on each Payment Date in the manner specified in the within described Bond Resolution to the registered owner. The Notional Principal Amount reflects the maximum principal amount of principal authorized to be issued under the Bond Resolution. 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 up to $22,000,000 under the authority of and in full compliance with the Constitution and statutes of the State of Florida, including, particularly, Chapter 166, Florida Statutes, as amended and supplemented, the Charter of the City of Delray Beach, Florida, as amended and supplemented, and other applicable provisions of law (the "Act"), and Resolution No. 76-99 duly adopted on December 14, 1999 and Resolution No. 11-02 duly adopted on February 12, 2002 (collectively, the "Bond Resolution"), as such resolutions may be further amended and supplemented from time to time, and is subject to all terms and conditions of said resolution. Any term used in this Bond and not otherwise defined, shall have the meaning ascribed to such term in the Bond Resolution. It is hereby certified and recited that all acts, conditions and things required to exist, to happen, and to be performed, precedent to and in the issuance of this Bond exist, have \\wI::fo-s~Ol\$ANFORD$\368202v04\2/7/02\I6787.010900 Resolution No. 11-02 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 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 a Determination of Taxability this Bond shall bear interest at the Taxable Rate. Interest shall be payable on June 1, 2002, and each December 1 and June 1 thereafter and principal on the Bonds, unless prepaid, shall be payable on June 1, 2005 (the final maturity date of this Bond); provided that if such 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 solely by the Pledged Revenues (as defined in the Bond Resolution), and payable from the Non-Ad Valorem Revenues (as such term is defined in the Bond Resolution) including the Pledged Revenues, all in the manner provided in the Bond Resolution. Subject to the terms and previsions of the Section 2.2 of Resolution No. 11-02 of the City, if this Bond is owned by the Bank, the City shall be obligated to prepay a portion of this Bond, without penalty or premium, with the net proceeds received by the City in connection with the closing of the sale of the School Site to the District. Unless the Bank provides for an extension, the City shall be required to effect such mandatory prepayment within ten (10) days of the closing of the sale of the School Site to the District. The City may also 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 amount 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 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, 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. In connection with any prepayment (optional or mandatory) while this Bond is owned by the Bank, the City shall give the Bank not more than ten, and not less than two, Business Days' \\wpb-s~O1\$ANFORDS\368202v04\2/?/D2\16787.010900 Resolution No. 1 1-02 wdtten notice of any proposed prepayment specifying the prepayment date and the principal amount of this Bond to be so prepaid. This Bond shall not be and shall not constitute an indebtedness of the City within the meaning of any constitutional, statutory, charter or other limitations of indebtedness but shall be secured solely by the Pledged Revenues and payable from the Non-Ad Valorem Revenues which includes the Pledged Revenues. No Holder of this Bond shall ever have the right to compel the exercise of ad valorem taxing power of the City, or taxation in any form of any real property therein to pay the 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 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 DELRAY BEACH, FLORIDA ATTEST: By: By:, Clerk of the City of Delray Beach, Flodda Mayor \\wI:YD-~Ol\$ANFORDS\368202v04\2/7/02\]67870]0900 Resolution No. 1 1-02 FORM OF CERTIFICATE OF AUTHENTICATION Date of Authentication: February ,2002 This Bond is the Bond delivered pursuant to the within mentioned Resolution. CITY OF DELRAY BEACH Finance Department, as Registrar By: Authorized Officer \\wpI~-s~/OI\$ANFORD$\368202v04\2/7/02\I6787010900 Resolution No. 11-02 ASSIGNMENT FOR VALUE RECEIVED the undersigned sells, assigns and transfers unto (please print or typewrite name, address and tax identification number 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. Dated: 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-sn/O1 \$ANFORDS\368202v04\217/02\16787 010900 Resolution No. 11-02 EXHIBIT C 2002 Projects (1) (2) (3) (4) Land acquisition costs, including all real estate commission, recording fees, survey costs, title costs and related items. The 2002 beach renourishment project which is a fill placement project designed to protect and enhance the City's beach and coastal resources. The partial funding of the acquisition, construction and equipping of a municipal parking facility. All related, necessary and incidental engineering, design, labor, contingency and costs of issuing 2002 Bonds. \\WpI~vO1\SANFORDS\368202v04\2/7/02\16787010900 Resolution No. 11-02 Request to be placed on: Regular Agenda When: 2/12/02 Agenda Item No.: AGENDA REQUEST Date: Special Agenda x Workshop Agenda Description of agenda item (who., what, where, how much): Approve Resolution No. 11-02 a,,thnrjz{T~ ¢h~ ioe,,~nr~ of ...... ORDINANCE/ RESOLUTION REQUIRED: YES/NO Draft Attached: YES/NO Recommendation: Approve Resolution No. 11-02 Department Head S~~:n ~~~ Determination of c City Attorney Review/ Recommendation (if applicable): Budget Director of funds): Review (required on all items involving expenditure Funding available: ~ NO Funding alternative .g~r-' Account No. & Description: Account Balance: N/A (if applicable) City Manager Review: Approved for agenda: Hold Until: YES/ NO Agenda Coordinator Review: Received: Action: Approved/Disapproved