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Res 56-98 RESOLUTION NO. 56-98 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AUTHORIZING THE ISSUANCE OF NOT TO EXCEED $350,000 IN AGGREGATE PRINCIPAL AMOUNT OF UTILITIES TAX REVENUE BONDS, SUBORDINATE SERIES 1998, OF THE CITY OF DELRAY BEACH, FLORIDA FOR THE PURPOSE OF FINANCING ALL OR A PORTION OF THE COSTS OF DESIGN, ENGINEERING, CONSTRUCTION, IMPROVING AND EQUIPPING OF A PUBLIC GOLF COURSE CLUBHOUSE; DETERMINING THE NEED FOR A NEGOTIATED SALE OF SUCH BONDS TO SUNTRUST BANK, SOUTH FLORIDA, N.A.; PROVIDING FOR THE TERMS AND PAYMENT OF SAID UTILITIES TAX REVENUE BONDS, SUBORDINATE SERIES 1998, AND THE RIGHTS, REMEDIES AND SECURITY OF THE OWNERS THEREOF; MAKING CERTAIN COVENANTS RELATING TO THE ISSUANCE OF SAID UTILITIES TAX REVENUE BONDS, SUBORDINATE SERIES 1998; APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION OF A LINE OF CREDIT AGREEMENT WITH SUNTRUST BANK, SOUTH FLORIDA, N.A.; DESIGNATING THE UTILITIES TAX REVENUE BONDS, SUBORDINATE SERIES 1998 AS "QUALIFIED TAX-EXEMPT OBLIGATIONS" WITHIN THE MEANING OF SECTION 265(b) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED; 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 make improvements and renovations to the City's Lakeview golf course clubhouse (herein, the "Improvements"); and WHEREAS, the City Commission hereby determines that it would be in the best economic interest of the City to finance the costs of the Improvements and all incidental and necessary costs relating thereto (collectively, the "1998 Project"); and WHEREAS, pursuant to the terms and provisions of this Resolution, the City shall issue at one time obligations known as "City of Delray Beach, Florida Utilities Tax Revenue Bonds, Subordinate Series 1998" (herein, the "1998 Bonds") to finance the costs of the 1998 Project including the costs of issuing such 1998 Bonds; and WHEREAS, the principal amount of the 1998 Bond authorized under this Resolution shall not exceed $350,000; and WHEREAS, the 1998 Bonds shall be secured by a pledge of and lien on the proceeds of the Utilities Tax (as such term is defined below), on parity with the City's outstanding Utilities Tax Revenue Bonds, Subordinate Series 1996 (herein the "1996 Bonds"), issued pursuant to the provisions of Resolution No. 79-96 of the City adopted on November 5, 1996 (the "1996 Resolution") but subject and subordinate in all respects to the pledge of and lien on such Utilities Tax proceeds for the payment of Senior Obligations (as such term is defined below); 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 1998 Bonds are to be issued and the 1998 Project is to be financed; and WHEREAS, City staff has determined and the City Commission hereby concurs that SunTrust Bank, South Florida, N.A., a national banking association 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 subordinate nature of the 1998 Bonds, and other factors described herein, it would be in the best interest of the City to sell the 1998 Bonds to the Bank on a negotiated basis pursuant to the terms and provisions of this Resolution and that certain Line of Credit Agreement dated as of September 1, 1998 (herein, the "Agreement") by and between the City and the Bank in substantially the form attached hereto as Exhibit A; and WHEREAS, the City does not expect to issue more than $10,000,000 of its tax-exempt obligations in calendar year 1998, and based upon the advice of its Bond Counsel, the City Commission shall designate the 1998 Bonds as "qualified tax-exempt obligations" within the meaning of Section 265(b) of the Code. 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"). SECTION 1.2. FINDINGS. It is hereby ascertained, determined and declared: (a) That the City hereby authorizes the following capital project and 'the financing of such capital project namely: (i) to make the Improvements and (ii) to pay all other incidental and necessary costs and expenses associated therewith, as more fully set forth in Section 1.2(d) hereof (the Improvements, together with such other costs and expenses, are collectively referred to as the "1998 Project"). The 1998 Project shall be financed from all or a part of the proceeds derived from the 1998 Bonds issued pursuant to this Resolution, all in accordance with plans and specifications filed or to be filed with and approved or to be approved by the City Commission. (b) That it is necessary and essential to construct and acquire the 1998 Project in order to preserve and promote tourism and recreation in the City and that such 1998 Project will be in the best economic interest of the City. (c) That the Improvements will serve a valid municipal purpose. WPB/SANFORDS/19 734 7 /489vO3!.DOC /9 /11/98/16787.010600 2 (d) That the cost of the Improvements shall be deemed to include, but not be limited to, the cost of acquisition, construction, improving, renovating and equipping all or a portion of the Improvements, the cost of real estate, including easements and other interests therein, or any other property real or personal, necessary therefor; administrative expenses; design, engineering and legal expenses; expenses for fiscal agents or financial services; the fees and expenses of Bond Counsel; expenses for estimates of costs; expenses for plans, specifications and surveys; and such other expenses as may be necessary or incidental to the Improvements and the issuance of the 1998 Bonds herein authorized. (e) That pursuant to the terms and provisions of the Original Resolution (as herein defined), the City has heretofore issued and has now outstanding its Utilities Tax Revenue Refunding and Improvement Bonds, Series 1992, its Utilities Tax Revenue Refunding and Improvement Bonds, Series 1994 and its Utilities Tax Revenue Bonds, Series 1995 (herein collectively, the "Prior Senior Obligations"). (f) That pursuant to the 1996 Resolution, the City has authorized and issued the 1996 Bonds to finance certain capital projects described therein. (g) That pursuant to the Utilities Tax Ordinance (as herein defined), the City has been levying a tax on the purchase of certain utilities services as more particularly described in Section 1.3 hereof (herein, the "Utilities Tax"), the proceeds of such tax are not pledged or encumbered, in whole or in part, in any manner or for any purpose other than for the payment of the 1996 Bonds and the Prior Senior Obligations. (h) That the principal of and interest on the 1998 Bonds shall be secured solely by and paid from the Pledged Revenues (as herein defined) on parity with the 1996 Bonds; and the ad valorem taxing power of the City will never be necessary or authorized to pay the principal of and interest on the 1998 Bonds or the 1996 Bonds, and the 1998 Bonds issued pursuant to this Resolution shall not constitute a lien upon any other property whatsoever of or in the City. (i) That the City, having previously solicited bids for the sale of the 1998 Bonds, has determined that the best qualified bid for the 1998 Bonds was delivered by the Bank. (j) That the negotiated sale of the 1998 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 1998 Project, the aforementioned solicitation of bids, present market conditions and the subordinate nature of the 1998 Bonds. (k) 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) The City hereby designates the 1998 Bonds to be "qualified tax-exempt obligations" within the meaning of Section 265(b) of the Code. WPB/SANFORDS/197347/489v03LDOC/9/11/98/16787.010600 3 (m) That pursuant to the provisions of the Original Resolution and this Resolution, the City may issue obligations on parity with the Prior Senior Obligations. 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: "Act" shall mean the Florida Constitution, 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 the law. "Amortization Assumption" shall mean with respect to any Senior Obligation or Parity Obligation issued pursuant to the provisions of the Original Resolution, this Resolution or any other resolution of the City, that does not have scheduled amortization, the assumption that the principal amount of such Senior Obligation or Parity Obligation is payable in substantially equal amounts each year over the term of each Parity Obligation. "Authorized Investments" shall mean any of the following: (1) U.S. Obligations; (2) bonds, debentures, notes or other evidences of indebtedness payable in cash issued by any one or a combination of any of the following federal agencies: Farmer's Home Administration (or its successor), Federal Housing Administration, Maritime Administration, Public Housing Authority, Government National Mortgage Association; (3) the following investments fully insured by the Federal Deposit Insurance Corporation ("FDIC") (i) certificates of deposit, (ii) savings account, (iii) deposit accounts, or (iv) depository receipts of a bank, savings and loan associations and mutual savings bank; (4) certificates of deposit, either in excess of FDIC insurance or without FDIC insurance, properly secured at all times, by collateral security described in clause (1) and (2) above or secured as required for a "qualified public depository" under the Florida Security for Public Deposits Act, being Chapter 280, Florida Statutes, as amended, or any successor statute. Such agreements are only acceptable with commercial banks, savings and loan associations and mutual savings banks or other "qualified public depository"; (5) commercial paper rated in one of the two highest rating categories by at least two nationally recognized rating agencies or commercial paper backed by a letter of credit or line of credit rated in one of the two highest rating categories; (6) written repurchase agreements with any bank, savings institution or trust company which is insured by the FDIC or with any broker dealer with retail customers which falls under Securities Investors Protection Corporation protection, provided that such repurchase agreements are fully secured by collateral security described in clause (1) above, and provided further that (i) such collateral is held by the City or any agent WPB/S A NFORDS /19 734 7 / 489v03! .DOC /9 /11/98 /16 78 7.010600 4 acting solely for the City during the term of such repurchase agreement, (ii) such collateral is not subject to lien or claims of third parties, (iii) such collateral has a market value (determined at least once every 14 days) at least equal to the amount invested in the repurchase agreement, (iv) the City has a perfected first security interest in the collateral, (v) the agreement shall be for a term not longer than 270 days, and (vi) the failure to maintain such collateral at the level required in (iii) above will require the City to liquidate the collateral; (7) money market funds rated in the highest rating category of either Standard & Poor's or Moody's Investors Service, or any successor thereto; (8) investments in the Local Government Surplus Funds Trust Fund established pursuant to Part IV of Chapter 218, Florida Statutes, as amended, or any successor trust fund established for the investment of surplus municipal funds; and (9) any other investments permitted under Florida law and acceptable to the Bank. "Bank" shall mean SunTrust Bank, South Florida, N.A., the initial Bondholder. "Bond Counsel" shall mean Greenberg Traurig, P.A. or any other firm of nationally recognized bond counsel selected by the City. "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. "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. "Debt Service Fund" shall mean the Delray Beach Subordinated Utilities Tax Revenue Bond Debt Service Fund, created and established pursuant to the 1996 Resolution and continued hereunder and which is the fund in which the Pledged Revenues shall be deposited by the City for the payment of the 1996 Bonds and 1998 Bonds in accordance with the provisions hereof and the 1996 Resolution. "Defeasance Obligations" shall mean, to the extent permitted by law, the following securities: (1) U.S. Obligations; (2) Any bonds or other obligations of any state of the United States of America or of any agency, instrumentality or local governmental unit of any such state (i) which are not callable prior to maturity or as to which irrevocable instructions have been given to the trustee of such bonds or other obligations by the obligor to give due notice of redemption and to call such bonds for redemption on the date or dates specified in such instructions, (ii) which are secured as to principal and interest and redemption WPB/SANFORDS/197347/489v03LDOC/9/I 1/98/16787.010600 5 premium, if any, by a fund consisting only of cash or bonds or other obligations of the character described in clause (1) hereof which fund may be applied only to the payment of such principal of and interest and redemption premium, if any, on such bonds or other obligations on the maturity date or dates thereof or the redemption date or dates specified in the irrevocable instructions referred to in subclause (i) of this clause (2), as appropriate, and (iii) as to which the principal of and interest on the bonds and obligations of the character described in clause (I) hereof which have been deposited in such fund along with any cash on deposit in such fund are sufficient to pay principal of and interest and redemption premium, if any, on the bonds or other obligations described in this clause (2) to and including the maturity date or dates thereof or to and including the redemption date or dates specified in the irrevocable instructions referred to in subclause (i) of this clause (2), as appropriate; (3) Evidences of indebtedness issued by the Federal Home Loan Banks, Federal Home Loan Mortgage Corporation (including participation certificates), Federal Financing Banks, or any other agency or instrumentality of the United States of America created by an act of Congress provided that the obligations of such agency or instrumentality are unconditionally guaranteed by the United States of America or any other agency or instrumentality of the United States of America or of any corporation wholly-owned by the United States of America; and (4) Evidences of ownership of proportionate interests in future interest and principal payments on obligations described in clause (1) above held by a bank or trust company as custodian. "Interest Rate" shall mean the rate of interest on the 1998 Bonds which, when calculated on an actual 365/366-day year basis, shall be equal to four and forty-nine hundredths percent (4.49%) per annum. "Maturity Date" shall mean, with respect to the unpaid principal of and interest on the 1998 Bonds, June 1, 2013. "1998 Bonds" shall mean the not to exceed $350,000 aggregate principal amount of Utilities Tax Revenue Bonds, Subordinate Series 1998, authorized by 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 1998 Bonds, provided that there shall never be more than I registered holder at any one time. "Original Resolution" shall mean Resolution No. 98-91, adopted by the City Commission on December 3, 1991, as amended and supplemented. "Parity Obligations" shall mean any notes, bonds or other forms of indebtedness, payable from the Pledged Revenues on parity with the 1996 Bonds and the 1998 Bonds, whether or not such obligations are issued under this Resolution or the 1996 Resolution. "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. WPB/SANFORDS/197347/489v03!.DOC/9/I 1/98/I 6787.010600 6 "Payment Date" shall mean each June 1 and December 1, commencing December 1, 1998, the Maturity Date and any date the principal of the 1998 Bonds is optionally prepaid in whole or in part, provided that if such date is a Saturday, Sunday or legal holiday in Palm Beach County, Florida, the payment shall be made on the next succeeding business day. "Pledged Revenues" shall mean all moneys on deposit in the Debt Service Fund derived from the proceeds of the Utilities Tax required to be deposited therein each month after the deposits required by Article III, Section 4.D of the Original Resolution have been made by the City, subject in all respects to the prior lien on such moneys for the payment of Senior Obligations. "Prime Rate" shall mean the annual interest rate announced by SunTrust Banks, Inc. from time to time as its prime rate, which interest rate is only a bench mark, is purely discretionary and is not necessarily the best or lowest interest rate charged borrowing customers of any subsidiary bank of SunTrust Banks, Inc. "Prior Senior Obligations" shall mean the City's outstanding Utilities Tax Revenue Refunding and Improvement Bonds, Series 1992, its Utilities Tax Revenue Refunding and Improvement Bonds, Series 1994 and its Utilities Tax Revenue Bonds, Series 1995. "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. "Senior Obligations" shall mean the Prior Senior Obligations and any pari .DaSSU additional Bonds issued pursuant to the provisions of Section 4.G of Article III of the Original Resolution, subject to the provisions of Section 3.8 of this Resolution. "Tax Certificate" shall mean the Arbitrage Certificate of the City executed on the date of initial delivery of the 1998 Bonds. "U. S. Obligations" shall mean the direct obligations of, or obligations on which the timely payment of principal and interest are unconditionally guaranteed by the United States of Amedca, and, if determined by subsequent proceedings of the City Commission, certificates which evidence ownership of the right to the payment of the principal of, or interest on, such obligations. "Utilities Tax" shall mean the tax imposed by the City on each and every purchase in the City of electricity, metered and bottled gas (natural liquified petroleum gas or manufactured) and telecommunication services. Said term shall also apply to all taxes imposed by the City on the purchase of utility services, whether levied in the amounts prescribed by the Utilities Tax Ordinance or in any other amounts and whether imposed on the purchase of the same utilities services or any other or additional utilities services, either by amendment to the Utilities Tax Ordinance or otherwise. WPB/SA NFORDS/197347/489v03!.DOC/9/11/98/16787.010600 7 "Utilities Tax Ordinance" shall mean all proceedings imposing the Utilities Tax, including Ordinance No. 535 of the City adopted on July 9, 1945, as amended, and every supplementary ordinance or other ordinance in lieu thereof as may hereafter be adopted. 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 CONSTITUTES CONTRACT. In consideration of the acceptance of the 1998 Bonds authorized to be issued hereunder by those who shall own the same from time to time, this 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 1998 BONDS SECTION 2.1 AUTHORIZATION OF 1998 BONDS. Subject and pursuant to the provisions of this Resolution, obligations of the City of Delray Beach, Florida, to be known as "Utilities Tax Revenue Bonds, Subordinate Series 1998" are hereby authorized to be issued in the aggregate principal amount of not exceeding Three Hundred Fifty Thousand Dollars ($350,000) for the purpose of financing the costs of the 1998 Project. SECTION 2.2 DESCRIPTION OF 1998 BONDS. The text of the 1998 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 1998 Bonds (initially issued in one (1) typewritten certificate) shall be dated the date of initial issuance. Unless the interest rate on the 1998 Bonds is converted to the Prime Rate pursuant to the provisions of Section 2.7 hereof, the 1998 Bonds shall bear interest on the outstanding principal amount of the 1998 Bonds from time to time at the Interest Rate and shall be payable on each Payment Date, commencing December 1, 1998. Principal of the 1998 Bonds shall be payable on each June 1 commencing June 1, 1999, in the amounts set forth below. All unpaid principal of the 1998 Bonds and all accrued and unpaid interest on the 1998 Bonds shall be payable on the Maturity Date. The 1998 Bonds shall be issued in registered form. Date Amount 1999 $18 000.00 2000 18 000.00 2001 18 000.00 2002 19 000.00 2003 20 000.00 2004 21 000.00 2005 22 000.00 2006 23 000.00 2007 24 000.00 2008 25 000.00 WPB/SANFORDS/197347/489vO3!.DOC/9/11/98/16787.0106~ 8 Date Amount 2009 26,000.00 2010 27,000.00 2011 29,000.00 2012 29,000.00 2013 31.000.00 TOTAL $350,000.00 Principal and interest on the 1998 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 1998 Bonds shall be numbered in such manner as may be prescribed by the Registrar. The 1998 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. The City may prepay the 1998 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 1998 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. If such prepayment shall be for only a portion of the unpaid principal balance of the 1998 Bonds, the City shall provide in such written notice, which future amortization installments shall be reduced as a result of such prepayment. 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 1998 Bonds is to be paid, upon presentation and surrender of the 1998 Bond or 1998 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 1998 Bonds is to be paid, upon presentation of such 1998 Bond or 1998 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 1998 Bond in the principal amount not redeemed. Notwithstanding the provisions of clause (ii) above, if all of the 1998 Bonds are registered in the name of the Bank, a partial prepayment may be effected by payment to the Bank of the principal without surrender of the 1998 Bonds. If, on the prepayment date, funds for the payment of the principal amount to be prepaid shall have been provided to the Paying Agent, as above provided, then from and after the prepayment date interest on such principal amount of the 1998 Bonds shall cease to accrue. If said funds shall not have been so paid on the prepayment date with respect to principal and on the next succeeding Payment Date with respect to interest, the principal amount of the 1998 Bonds shall continue to bear interest until payment thereof at the Interest Rate or Prime Rate, as the case may be. SECTION 2.3 EXECUTION OF THE '1998 BONDS. The 1998 Bonds shall be executed in the name of the City by the signature of the Mayor of the City and its official seal shall be affixed thereto or imprinted or reproduced thereon and attested by the City Clerk. The WPB/SANFORDS/197347/489vO3!.DOC/9/11/98/16787.010600 0 signatures of the Mayor of the City and City Clerk on the 1998 Bonds may be manual or facsimile signatures. In case any one or more of the officers who shall have signed or sealed the 1998 Bonds shall cease to be such officer of the City before the 1998 Bonds so signed and sealed shall have been actually sold and delivered, such 1998 Bonds may nevertheless be sold and delivered as herein provided and may be issued as if the person who signed or sealed such 1998 Bonds had not ceased to hold such office. The 1998 Bonds may be signed and sealed on behalf of the City by such person who at the actual time of the execution of the 1998 Bonds shall hold the proper office, although at the date the 1998 Bonds shall be actually delivered such person may not have held such office or may not have been so authorized. The 1998 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 1998 Bonds as shall bear thereon such certificate of authentication shall be entitled to any right or benefit under this Resolution and no 1998 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 1998 Bonds executed on behalf of the City shall be conclusive evidence that the 1998 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 1998 Bonds and for the registration of transfers of the 1998 Bonds. The 1998 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 1998 Bond, the City shall issue in the name of the transferee a new 1998 Bond. The City, the Paying Agent and the Registrar shall deem and treat the person in whose name the 1998 Bonds shall be registered upon the books kept by the Registrar as the absolute Owner of such 1998 Bonds, whether such 1998 Bonds shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal of and interest on such 1998 Bonds as the same become due and for all other purposes. All such payments so made to any such Owner or upon his/her order shall be valid and effectual to satisfy and discharge the liability upon such 1998 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. WPB/SANFORDS/! 97347/489v03].DOC/9/11/98/16787.010600 1 0 In all cases in which the privilege of transferring the 1998 Bonds is exercised, the City shall execute and the Registrar shall authenticate and deliver the 1998 Bonds in accordance with the provisions of this Resolution. The 1998 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. There may be a reasonable charge for any transfer of the 1998 Bonds, and 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 1998 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 1998 Bonds shall thereupon be promptly canceled. The 1998 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 1998 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. Dt~$TROYED. STOLEN OR LOST 1998 Bonds. In case any 1998 Bond shall become mutilated, destroyed, stolen or lost, the City shall execute and the Registrar shall authenticate and deliver a new 1998 Bond of like date, maturity and denomination as the 1998 Bond so mutilated, destroyed, stolen or lost; provided that, in the case of any mutilated 1998 Bond, such mutilated 1998 Bond shall first be surrendered to the City and, in the case of any lost, stolen or destroyed 1998 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 1998 Bonds shall be about to mature or have matured, instead of issuing a duplicate 1998 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 1998 Bond their reasonable fees and expenses in connection with this transaction. Any 1998 Bonds surrendered for replacement shall be canceled in the same manner as provided in Section 2.4 hereof. Any such duplicate 1998 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 1998 Bond be at any time found by anyone, and such duplicate 1998 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 1998 Bond issued hereunder. SECTION 2.6 CONDITIONS FOR ISSUANCE OF THE 1998 BONDS. Prior to the issuance of the 1998 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 1998 Bonds and the due adoption of this Resolution (enforceability of such instruments may be WPB/SANFORDS/197347/489vO3!.DOC/9/11/98/16787.010600 I 1 subject to standard bankruptcy exceptions and the like) and the exclusion of interest on the 1998 Bonds from gross income for federal income tax purposes, that the 1998 Bonds are not specified "private activity bonds" within the meaning of Section 57(a)(5) of the Code and, therefore, the interest on the 1998 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 1998 Bonds owned by corporations may be subject to the federal alternative minimum tax which is based in part on adjusted current earnings). Such opinion shall also state that the 1998 Bonds are "qualified tax-exempt obligations" within the meaning of Section 265(b) of the Code; 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 1998 Bonds, the Agreement and the due adoption of this 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 Original Resolution and that, as certified by the City's Finance Director, the conditions set forth in Section 3.8 of the 1996 Resolution have been satisfied. To the extent that the City does not issue all of the $350,000 in principal amount of 1998 Bonds at the time of initial issuance, 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 Original Resolution. Such additional amounts drawn under the Agreement shall constitute additional principal amount of 1998 Bonds without any further action required. SECTION 2.7 INTEREST RATE ADJUSTMENT. If the interest on the 1998 Bonds while registered in the name of the Bank becomes includable in the gross income of the Bank for federal income tax purposes as determined in the manner set forth below (herein a "Determination of Taxability") the interest rate on the 1998 Bonds shall be adjusted so that the 1998 Bonds shall bear interest at the Prime Rate. Such adjustment shall be retroactive to the date interest on the 1998 Bonds first become includable in the gross income of the Bonds for federal income tax purposes. A Determination of Taxability shall have deemed to occur when (i) the Bank has been advised in writing by the Internal Revenue Service that the interest payable on the 1998 Bonds must be includable in the gross income of the Bank for federal income tax purposes or (ii) the entry by a court of a final judgment or order or the promulgation by the Internal Revenue Service of a final ruling or decision, in either such case to the effect that the interest on the 1998 Bonds is includable for federal income tax purposes in the gross income of the Bank. Notwithstanding the foregoing, there shall be no Determination of Taxability unless the inclusion of interest on the 1998 Bonds in the gross income of the Bank is the result of actions taken by City or is a result of the City's failure to take actions required to be taken by the City and it is within the City's power to take such action. A Determination of Taxability shall not include inclusion of interest on any 1998 Bond in the income of the Bank for purposes of any alternative minimum tax, environmental tax or branch profits tax. WPB/SANFORD$/197347/489vO3!.DOC/9/11/98/16787.010600 12 In the case of (i) above, no Determination of Taxability shall be deemed to occur unless the City has been given timely written notice by the Bank of such determination by the Internal Revenue Service and afforded an opportunity to participate in and seek at its own expense, a final administrative determination or determination by a court of competent jurisdiction (from which no further right of appeal exists) as to the existence of such Determination of Taxability; provided that the City, at its own expense, delivers to the Bank an opinion of Bond Counsel acceptable to the Bank to the effect that such appeal or action for judicial or administrative review is not without merit and there is a reasonable possibility that the judgment, order, ruling or decision from which such appeal or action for judicial or administrative review is taken will be reversed, vacated or otherwise set aside. In the event of a Determination of Taxability, the City covenants that it shall also pay any interest, additions to tax or penalties, resulting from the interest on the 1998 Bonds being includable in the Bank's gross income for federal income tax purposes, and any arrears in interest resulting from such Determination of Taxability. Any such additional amounts (established to the satisfaction of the City) shall be payable by the City to the Bank on the next succeeding Payment Date or, if such amounts become payable after the Maturity Date of the 1998 Bonds within 60 days of the date the City is notified by the Bank that such amounts are due. ARTICLE III COVENANTS, FUNDS AND APPLICATION THEREOF SECTION 3.1 1998 BONDS NOT TO BE INDEBTEDNESS OF THE CITY. The 1998 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 and payable from the Pledged Revenues on a parity with the 1996 Bonds. 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 1998 Bonds or the interest thereon. The pledge of the Pledged Revenues will not constitute a lien upon any property of the City. SECTION 3.2 1996 and 1998 BONDS JUNIOR AND SUBORDINATE TO SENIOR OBLIGATIONS. The lien of the 1996 Bonds and 1998 Bonds on the Pledged Revenues shall be junior and subordinate, as to the lien of the Senior Obligations on the Utilities Tax proceeds and in all other respects, to the pledge and lien granted to the Senior Obligations. SECTION 3.3 1998 BONDS SECURED BY PLEDGE OF PLEDGED REVENUES. From and after the issuance of any of the 1998 Bonds, and continuing until the payment of all 1998 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 1998 Bonds on parity with the 1996 Bonds. SECTION 3.4 COVENANTS OF THE CITY. As long as any of the principal of or interest on any of the 1998 Bonds shall be outstanding and unpaid, or until there shall have been set apart in the Debt Service Fund in accordance with Section 3.7 hereof a sum sufficient to pay, when due, the entire principal of the 1998 Bonds remaining unpaid, together with interest accrued and to accrue thereon, the City covenants with the Bondholders as follows: WPB/SANFORDS/197347/489v03!.DOC/9/11/98/t 6787.010600 13 (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 1998 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 1998 Bonds, would cause any of the 1998 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 1998 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 1998 Bonds, the covenants contained in this Section shall survive the payment of the 1998 Bonds and the interest thereon, including any payment or discharge thereof pursuant to Section 3.7 of this Resolution. (b) Continuation of Debt Service Fund. The "Delray Beach Subordinate Utilities Tax Revenue Bond Debt Service Fund" (hereinafter referred to as the "Debt Service Fund") created and established under the 1996 Resolution is hereby continued under this Resolution. The Debt Service Fund shall constitute a trust fund for the benefit of the Bondholder and shall be held by the City and shall be kept separate and distinct from all other funds of the City, and shall be used only for the purpose and in the manner provided in this Resolution. Notwithstanding the provisions of the next preceding sentence, the City may deposit the proceeds of the Utilities Tax in a single bank account for the City, provided that adequate accounting procedures are maintained to reflect and control the restricted allpcations 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 this 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 1996 Bonds and 1998 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 Authorized Investments, 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 WPB/SANFORDS/197347/489v03LDOC/9/i 1/98/16787.010600 14 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) Disposition of Pledged Revenues. Not later than the fifteenth day of each month commencing October 15, 1998, the City shall deposit in the Debt Service Fund the proceeds of the Utilities Tax, subject to and dependent upon satisfaction of all current deposit requirements of such Utilities Tax proceeds set forth in Article III, Section 4.D of the Original Resolution, in an amount equal to one-sixth (1/6) of the interest becoming due on the 1996 Bonds and 1998 Bonds on the next Payment Date and an amount equal to one-twelfth (1/12) of an amount sufficient to pay the principal becoming due on the 1996 Bonds and 1998 Bonds on the next June 1 Payment Date, and shall further deposit into the Debt Service Fund one business day prior to each Payment Date the proceeds of the Utilities Tax in an amount necessary to satisfy any deficiency in the Debt Service Fund on such date; provided, however, that such deposit of the interest and principal amount shall not be required to be made to the extent that moneys on deposit in the Debt Service Fund are sufficient for such purpose. The City covenants to deposit, on the business day prior to the Maturity Date, the proceeds of the Utilities Tax (or other legally available moneys) into the Debt Service Fund in an amount sufficient to pay the outstanding principal of and interest on the 1998 Bonds. (d) Levy of Utilities Tax. The City will not repeal, amend or modify the Utilities Tax Ordinance in any manner so as to (i) impair or adversely affect the power and obligation of the City to levy and collect the Utilities Tax, (ii) impair or adversely affect in any manner the pledge of the Utilities Tax made herein, or (iii) reduce the rate at which the Utilities Tax is collected or the persons from whom it is collected. (e) Enforcement of Collections. The City will diligently enforce and collect the Utilities Tax, will take steps, actions and proceedings for the enforcement and collection of such Utilities Tax as shall become delinquent to the full extent permitted or authorized by law, and will maintain accurate records with respect thereof. (f) Budget and Other Financial Information. The City shall demonstrate in each annual budget that there are sufficient proceeds of the Utilities Tax to pay the principal of and interest on the 1996 Bonds and 1998 Bonds and Senior Obligations coming due in such fiscal year. The City shall, upon the request of the Bank, provide the Bank with a copy of its annual budget and such other financial information regarding the City as the Bank may reasonably request. SECTION 3.5 REMEDIES OF BONDHOLDER. Subject to the provisions of Section 4 of the Agreement, 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 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. In addition, if the City shall breach any of its WPB/SANFORDS/197347/489v03!.DOC/9/11/98/16787.010600 15 obligations set forth in the Original Resolution the Bondholders will have the right to exercise any of the remedies provided to them under this Section 3.5. Notwithstanding anything in this Section 3.5 to the contrary the Bondholders' right to exercise any remedy permitted hereunder shall be subordinate in all respect to the rights of the owners of the Senior Obligations. SECTION 3.6 APPLICATION OF 1998 BONDS PROCEEDS. The proceeds of the 1998 Bonds shall be used to provide permanent financing for the costs of the 1998 Project. The City may replace all or a portion of the 1998 Project for any other capital project 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 1998 Bonds from gross income for federal income tax purposes. SECTION 3.7 DISCHARGE AND SATISFACTION OF 1998 BONDS. The covenants, liens and pledges entered into, created or imposed pursuant to this Resolution may be fully discharged and satisfied with respect to the 1998 Bonds in any one or more of the following ways: (a) by paying the principal of and interest on the 1998 Bonds when the same shall become due and payable; or (b) by depositing in the Debt Service Fund or such other accounts as the City may hereafter create and establish by resolution moneys sufficient at the time of such deposit to pay the 1998 Bonds and all interest thereon as the same become due on said 1998 Bonds on or prior to the maturity date thereof; or (c) by depositing in the Debt Service Fund or such other accounts as the City may hereafter create and establish by resolution (which Debt Service Fund or other account and all moneys and securities deposited therein shall be irrevocably pledged to the Bondholders for the payment of the 1998 Bonds and all interest thereon) moneys which, when invested in Defeasance Obligations, will provide moneys which shall be sufficient to pay the 1998 Bonds and, all interest thereon as the same shall become due on said 1998 Bonds on or prior to the Maturity Date thereof. Upon such payment or deposit in the amount and manner provided in this Section 3.7, the 1998 Bonds shall no longer be deemed to be outstanding for the purposes of this Resolution and all liability of the City with respect to the 1998 Bonds shall cease, terminate and be completely discharged and extinguished, and the Bondholders shall be entitled for payment solely out of the moneys or securities so deposited. SECTION 3.8 ADDITIONAL OBLIGATIONS. The City covenants with the Bondholders that as long as the 1998 Bonds issued under this Resolution are outstanding, it will not issue any Senior Obligations or any Parity Obligations (collectively referred to as "Utility Tax Debt") unless the following conditions are complied with. (a) The City must be current in all deposits into the various funds and accounts and all payments required to have been theretofore deposited or made by it under the provisions of the Original Resolution, 1996 Resolution and this Resolution, and any supplemental resolutions hereafter adopted for the issuance of Utilities Tax Debt, and has complied with the covenants and provisions of the Original Resolution and this Resolution, and any supplemental resolutions hereafter adopted for the issuance of Utilities Tax Debt. WPB/SA NFORDS/197347/489vO3!.DOC/9/1 !/98/16787.010600 16 (b) The Utilities Tax proceeds collected by the City during any twelve (12) consecutive months of the eighteen (18) months immediately preceding the issuance of said Utilities Tax Debt, as evidenced by a certificate executed by the Finance Director of the City and as may be adjusted, as hereinafter provided, will be equal to one hundred twenty-five per centum (125%) of the maximum annual debt service on (1) the Senior Obligations issued pursuant to the Original Resolution then outstanding, (2) the outstanding 1996 Bonds and 1998 Bonds heretofore issued, less any repayments of principal made by the City, and (3) the Utilities Tax Debt then proposed to be issued; provided that for the purpose of determining the maximum annual debt service under this Section, the interest rate on variable or adjustable rate Utilities Tax Debt then outstanding shall be the greater of (i) the average daily interest rate on such variable or adjustable rate Utilities Tax Debt during the preceding Fiscal Year, or (ii) the actual rate of interest applicable to such variable or adjustable rate Utilities Tax Debt on the date of issuance of such variable or adjustable rate Utilities Tax Debt; and provided further, that if variable or adjustable rate Utilities Tax Debt is to be issued, the interest rate thereon for purposes of this paragraph shall be calculated in accordance with the 30-year Revenue Bond Index, as published by The Bond Buyer as of the last week of the month preceding the date of issuance of such variable or adjustable rate Utilities Tax Debt, or if that index is no longer published, the interest rate as of the last week of such month, as published in an index that is deemed to be substantially equivalent. If the City, prior to the issuance of the proposed Utilities Tax Debt shall have, by amendment or supplement to the Utilities Tax Ordinance, increased the Utilities Tax to be collected, the Utilities Tax proceeds for the twelve (12) consecutive months immediately preceding the issuance of the Utilities Tax Debt shall be adjusted to include the Utilities Tax proceeds which would have been collected by the City in such twelve (12) consecutive months as if such increase in the Utilities Tax had been in effect during all of such twelve (12) consecutive months. (c) In the event any Utilities Tax Debt is issued for the purpose of refunding any Utilities Tax Debt then outstanding, the condition of paragraph (b) above shall not apply, provided that the issuance of such Utilities Tax Debt shall result in a reduction or shall not increase the annual debt service payments in any year over the life of the Utilities Tax Debt so refunded. For purposes of paragraph (b) set forth above, the principal component of the maximum annual debt service on any outstanding Utility Tax Debt or Utility Tax Debt proposed to be issued where principal is payable only at final maturity shall be determined by using the Amortization Assumption. ARTICLE IV MISCELLANEOUS PROVISIONS SECTION 4.'1 MODIFICATION OR AMENDMENT. Except as provided in the next succeeding paragraph, 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. This Resolution may be amended, changed, modified and altered without the consent of the Bondholders, (i) to cure any ambiguity, correct or supplement any provision contained herein which may be defective or inconsistent with any other provisions contained herein, (ii) to provide other changes which will not adversely affect the interest of such Bondholders, or (iii) to WPB/SANFORDS/197347/489v03!.DOC/9/11/98/16787.010600 17 maintain the exclusion of interest on the 1998 Bonds from gross income for federal income tax purposes. SECTION 4.2 ADDITIONAL AUTHORIZATION. The 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 1998 Bonds issued hereunder. SECTION 4.4 J~,P_J~.F.~. 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. SECTION 4.5 EFFECTIVE DATE. This Resolution shall be effective immediately upon its adoption. Passed and adopted in regular session on this 15th day of S.e, pte, rnber, 1998. The foregoing resolution and the form of 1998 Bond therein contained are hereby approved by me as to form, language and execution this 15th day of City Attorney WPB/SANFORDS/197347/489vO3L DOC/9/11/98/16787.010600 1 8 Exhibit A LINE OF CREDIT AGREEMENT Dated as of September 1, 1998 WHEREAS, SunTrust Bank, South Florida, N.A. (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 $350,000 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 September 15, 1998, adopted Resolution No. 56-98 (the "1998 Bond Resolution") authorizing the issuance of not exceeding $350,000 in aggregate principal amount of City of Delray Beach, Florida Utilities Tax Revenue Bonds, Subordinate Series 1998 (the "1998 Bonds")which 1998 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 1998 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 1998 Bond Resolution, the Line of Credit in an aggregate principal amount of not exceeding $350,000 which shall be available to the City in one or more drawings prior to June 1, 1999. 2. That the Line of Credit shall expire on May 31, 1999. The outstanding principal amount of all drawings with interest thereon, shall become due and payable in accordance with the terms and provisions of the 1998 Bond Resolution. 3. That the Bank hereby accepts the terms and conditions set forth in the 1998 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 right to a trial by a jury in connection with any and all claims by any party hereto against the other arising from or in connection with the transactions contemplated by this Agreement or the 1998 Bond Resolution. WPB/SANFORDS/} 97347/489v01 !.DOC/9/11/98/16787.010600 WP B/SA NFORDS/197347/489v03[.DOC/9/11/98/16787.010600 5. The Bank represents to the City that it is not purchasing the 1998 Bonds with a view to distributing the 1998 Bonds. SUNTRUST BANK, SOUTH FLORIDA, N.A. By:. Title: Date: September 25, 1998 (SEAL) CITY OF DELRAY BEACH, FLORIDA Attest By:. Title: Date: September 25, 1998 City Clerk WPB/SANFORDS/J 97347/489v01 !.DOC/9/J 1/98/I 6787.010600 A-2 WPB/SA NFORDS/197347/489vO3!.DOC/9/11/98/16787.0'~0600 Exhibit B FORM OF 1998 BOND No. R- UNITED STATES OF AMERICA STATE OF FLORIDA CITY OF DELRAY BEACH, FLORIDA Utilities Tax Revenue Bond, Subordinate Series 1998 Interest Rate Maturity Date Dated Date 4.49% June 1, 2013 September 25, 1998 Registered Owner: SunTrust Bank, South Florida, N.A. Principal Amount: Three Hundred Fifty Thousand Dollars ($350,000.00) ......................... 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 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 stated above with interest thereon at the Interest Rate specified above (unless interest on this Bond is converted to the Prime Rate (as defined in the Resolution) in the manner provided in the Bond Resolution) calculated on the basis of the actual number of days elapsed in a 365/366-day year, on each Payment Date in the manner specified in the within described Resolution to the registered owner. 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 $350,000 under the authority of and in full compliance with the Constitution and statutes of the State of Florida, including, particularly, Chapter 166, Florida Statutes, as amended and supplemented, the Charter of the City of Delray Beach, Florida, as amended and supplemented, and other applicable provisions of law (the "Act"), and Resolution No. 56-98, duly adopted on September 15, 1998 (the "Bond Resolution"), as such resolution may be further amended and supplemented from time to time, and is subject to all terms and conditions of said resolution. Any term used in this Bond and not otherwise defined, shall have the meaning ascribed to such term in the Bond Resolution. WPB/$A NFORDS/197347/489v02!.DOC/9/] 3 /98/16787.010600 J~- 1 certified and recited that all acts, conditions and things required to exist, to performed, precedent to and in the issuance of this Bond exist, have been performed in regular and due form and time as required by the Laws State of Florida and the Charter of the City applicable thereto, and that Bond, is in full compliance with all constitutional or statutory limitations or not be valid or become obligatory for any purpose or be entitled to any under the Bond Resolution until the certificate of authentication hereon shall authorized officer of the Registrar. otherwise provided in the Bond Resolution in the event of a Determination of shall bear interest at the Interest Rate. only be payable on December 1, 1998, and each June 1 and December 1 on the Bonds shall be payable each June 1 commencing June 1, 1999 forth below as such amounts may be adjusted as provided in the Bond outstanding principal of the Bonds have been paid; provided that if such Sunday or legal holiday in Palm Beach County, Florida, the payment shall succeeding business day (each a "Payment Date"). The principal of and shall be secured solely by and payable from the Pledged Revenues (as Date Amount 1999 $18,000.00 2000 18,000.00 2001 18,000.00 2002 19,000.00 2003 20,000.00 2004 21,000.00 2005 22,000.00 2006 23,000.00 2007 24,000.00 2008 25,000.00 2009 26,000.00 2010 27,000.00 2011 29,000.00 2012 29,000.00 2013 31.000.00 TOTAL $350,000.00 Resolution" shall mean Resolution No. 98-91, adopted by the City Commission as amended and supplemented. shall mean the City's outstanding Utilities Tax Revenue Bonds, 1996, issued pursuant to the 1996 Resolution. WPB/SANFORDS/197347/489vO2!.DOC/9/1 ~/98/~ 6787.010600 B-2 "1996 Resolution" shall mean Resolution No. 79-96, adopted by the governing body of the City on November 5, 1996. "Pledged Revenues" shall mean all moneys on deposit in the Debt Service Fund (created and established under the Bond ResOlution) derived from the proceeds of the Utilities Tax required to be deposited therein each month after the deposits required by Article Ill, Section 4.D of the Original Resolution have been made by the City, subject to the prior lien on such moneys for the payment of the Senior Obligation. "Utilities Tax" shall mean the tax imposed by the City on each and every purchase in the City of electricity, metered and bottled gas (natural liquified petroleum gas or manufactured) and telecommunication services. Said term shall also apply to all taxes imposed by the City on the purchase of utility services, whether levied in the amounts prescribed by the Utilities Tax Ordinance or in any other amounts and whether imposed on the purchase of the same utilities services or any other or additional utilities services, either by amendment to the Utilities Tax Ordinance or otherwise. "Utilities Tax Ordinance" shall mean all proceedings imposing the Utilities Tax, including Ordinance No. 535 of the City adopted on July 9, 1945, as amended, and every supplementary ordinance or other ordinance in lieu thereof as may hereafter be adopted. The City may prepay this Bond in whole or in part, at any time or from time to time, without penalty or premium, by paying to the registered holder all or part of the principal 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 the Bond to the office of the Paying Agent (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 (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 without surrender of this Bond. If, on the prepayment date, funds for the payment of the principal amount to be prepaid shall have been provided to the Paying Agent, as above provided, then from and after the prepayment date interest on such principal amount of this Bond shall cease to accrue. If said funds shall not have been so paid on the prepayment date with respect to principal and on the next succeeding Payment Date with respect to interest, the principal amount of the Bond shall continue to bear interest until payment thereof at the Interest Rate provided for herein. WPBISANFORDS /19 734 7 / 489vO2!.DOC/9 /1 !/98116787.010600 Bo3 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 and payable from the Pledged Revenues on a parity with the 1996 Bonds. 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. 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. THE LIEN GRANTED IN FAVOR OF THE REGISTERED OWNER OF THIS BOND ON THE PROCEEDS OF THE UTILITIES TAX SHALL BE JUNIOR AND SUBORDINATE AS TO THE LIEN GRANTED IN FAVOR OF THE HOLDERS OF THE SENIOR OBLIGATIONS ON THE UTILITIES TAX PROCEEDS AND IN ALL OTHER RESPECTS TO THE PLEDGE AND LIEN GRANTED TO SUCH HOLDERS OF THE SENIOR OBLIGATIONS. 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: Mayor Clerk of the City of Delray Beach, Florida WPB/SA NFORDS/197347/489v02!.DOC/9/11/98/16787.010600 B-4 FORM OF CERTIFICATE OF AUTHENTICATION Date of Authentication: September 25. 1998 This Bond is the Bond delivered pursuant to the within mentioned Resolution. CITY OF DELRAY BEACH Finance Department, as Registrar By: Authorized Officer WPB/SANFORDS/197347/489v02!.DOC/9/11/98/16787.010600 B-5 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/SANFORDS/197347/489v02!.DOC/9/! 1/98/I 6787.070600 B-6 STATE OF FLORIDA ) COUNTY OF PALM BEACH ) I, Alison MacGregor Harty, do hereby certify that I am the duly qualified City Clerk of the City of Delray Beach, Palm Beach County, Florida. I further certify that the above and foregoing constitutes a true and correct copy of the minutes of a meeting of the City Commission of said city held on September 15, 1998, and of a resolution adopted at said meeting, as said minutes and resolution are officially of record in my possession. IN WITNESS WHEREOF, I have hereunto subscribed my official signature and impressed hereon the official seal of the City of Delray Beach this 15th day of September, 1998. City Clerk (SEAL) WPB/SANFORDS/197347/489vO2!.DOC/9Jl 1/98/16787.010600 B-7 MEMORANDUM To: City Commission From: David T. Harden, City Manager~d/~ Subject: Proposed Utility Tax Notes ($350,000) Date: September 9, 1998 The attached resolution authorizes the City to execute a note agreement with SunTrust of up to $350,000 at a rate of 4.49% and a term of approximately 15 years for the purpose of funding, in part, the cost of design, engineering, construction and equipping of a new clubhouse located at Lakeview Golf Course. The Finance Department has provided an analysis of bids received from various banks and recommends approval of the agreement with SunTrust. The agreement will allow for prepayment at any time without penalty and will protect the City against rate changes caused by possible amendments to tax law. I concur with their recommendation. c: R.S. O'Connor, Treasurer file: notes/authres MEMORANDUM To: David T. Harde~anager From: Joseph U. Sa~ector of Finance Subject: Proposed Utility Tax Notes ($350,000) Date: September 9, 1998 Background On September 4, 1998, the City Finance Department received bids for the above referenced financing for the purpose of funding, in part, the construction and equipping of Lakeview Golf Course Clubhouse. The terms and specifics of the request for bid are as follows: Term The term of the Note will be approximately 15 years and will mature June 1, 2013. Security The Note will be secured by a subordinate pledge upon the City's receipt of Utilities Tax revenues. The Note will be subordinate to the City's Utilities Tax Revenue Bonds, Series 1992, 1994 and 1995 currently outstanding in the principal amount of $17,120,000. The Note will be on parity with the City's Utility Tax Note, Series 1996 currently outstanding in the principal amount of $3,143,000. The annual and maximum debt service coverage calculated with the current and proposed debt service is at 2.31 which is more than adequate coverage. Prepayment Provisions/Gross-up Provisions The City asked financial institutions to bid with and without a "prepayment penalty" as well as with and without a "gross-up provision". The "prepayment penalty" is a fee charged or a premium paid by the City in the event the City chooses to prepay the Note. A "gross-up provision" is a protection for the bank which essentially allows the bank to increase the rate of the financing to the bank's effective yield in the event of a change in the tax law. Bid Responses The City received responses from NationsBank, First Union, Republic Security Bank and SunTrust. The bid responses are as follows: FIRST NATIONS- REPUBLIC SUNTRUST UNION BANK SECURITY FIXED RATE: W/O PENALTY/NO DECLINED DECLINED 4.95% 4.49% GROSS-UP W/O PENALTY/WITH DECLINED DECLINED N/A 4.49% GROSS-UP WITH PENALTY/NO DECLINED DECLINED N/A 4.46% GROSS-UP WITH PENALTY/WITH DECLINED DECLINED NIA 4.43% GROSS-UP LEGAL: N/A N/A $1,000 Plus $1,000 Plus O/P Exp. O/P Exp. Recommendation We recommend the fixed rate financing option offered by SunTrust at a rate of 4.49%. This option will allow for prepayment without penalty and will protect the City against rate changes contingent upon amendments to tax law. The cost for each feature equates to $867 over a 15 year period. This additional cost is a small price to pay for the most protection for the City.