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Res 85-94 RESOLWI'ION NO. R..85-94 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AUTHORIZING THE NEGOTIATED SALE OF CITY OF DELRAY BEACH, FLORIDA, UTILITIES TAX REVENUE REFUNDING AND IMPROVEMENT BONDS, SERIES 1994, IN THE AGGREGATE PRINCIPAL AMOUNT OF $5,810,000; DETERMINING CERTAIN DETAILS OF SAID BONDS; PROVIDING FOR THE APPLICATION OF THE BOND PROCEEDS; APPROVING THE FORM OF, AND AUTHORIZING THE EXECUTION AND DELIVERY OF A BOND PURCHASE AGREEMENT TO EFFECT THE NEGOTIATED SALE OF THE BONDS; APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION OF AN OFFICIAL STATEMENT IN CONNECTION WITH THE OFFERING AND SALE OF THE BONDS AND APPROVING, RATIFYING AND CONFIRMING THE DISTRIBIYI'ION OF A PRELIMINARY OFFICIAL STATEMENT BY THE UNDERWRITERS; AWARDING THE BONDS TO THE UNDERWRITERS; APPOINTING A PAYING AGENT; APPOINTING A REGISTRAR; PROVIDING FOR A BOND INSURANCE POLICY FOR THE BONDS PROVIDED BY THE MUNICIPAL BOND INVESTORS ASSURANCE CORPORATION, AND PROVIDING FOR CERTAIN NECESSARY SUPPLEMENTS TO THE BOND RESOLUTION IN CONNECTION THEREWITH; DECLARING THE BONDS TO BE 'QUALIFIED TAX-EXEMPT OBLIGATIONS" WITHIN THE MEANING OF SECTION 265(b)(3)(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 AS TO THE SALE AND DELIVERY OF THE BONDS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Commission (the "Commission") of the City of Delray Beach, Florida (the "City") did, on December 3, 1991, adopt Resolution No. 98-91, as amended and supplemented (herein, the "Original Resolution"), for the purpose, among other things, of authorizing the issuance from time to time of Utilities Tax Revenue Bonds to finance and refinance municipal projects; and WHEREAS, any term not otherwise defined in this Resolution shall have the meaning ascribed to such term in the Original Resolution; ...,~.F~, ..... , ........... ,~.,..,.. Res. No. R-85-94 WItE~, pursuant to the terms and provisions of the Original Resolution, the City did, on February 5, 1992, issue its first series of obligations under the Original Resolution designated as Utilities Tax Revenue Refunding and Improvement Bonds, Series 1992, in the aggregate prindpal amount of $14,800,000 for the purposes authorized thereunder (herein, the "Original Bonds"); and WHERE., pursuant to the terms and provisions of the Original Resolution, the City is authorized to issue obligations that are subordinate in all respects to Bonds issued pursuant to the terms and provisions of the Original Resolution; and WHEREAS, the City did, pursuant to the Original Resolution, Resolution No. 116-92, adopted by the Commission on October 13, 1992, as supplemented (the "1992 Subordinate Resolution"), and an Agreement Regarding Line of Credit, dated as of October 1, 1992 (the "1992 Line of Credit"), between the City and SunBank/South Florida, N.A. (the "Bank"), issue its Utilities Tax Revenue Notes, Subordinate Series 1992, outstanding in the principal amount of $1,918,885 (the "1992 Notes") to finance on a short term basis the acquisition, construction and equipping of the Delray Beach Tennis Stadium and related tennis courts (herein, the "I'ennis Facilities"); and WHEREAS, the City did, pursuant to the Original Resolution, Resolution No. 98-93, as amended and restated by Resolution No. 108-93, adopted by the Commission on October 12, 1993, and December 7, 1993, respectively (such Resolution No. 98-93, as amended and restated by Resolution No. 108-93, herein called the "1993 Subordinate Resolution"), and an Agreement Regarding Line of Credit, dated as of December 1, 1993 (the "1993 Line of Credit"), between the City and the Bank, issue its Utilities Tax Revenue Notes, Subordinate Series 1993, outstanding in the principal amount of $810,000 (the "1993 Res. No. R-85-94 Notes") to finance on a short term basis certain municipal capital projects including improvements and modifications to the Tennis Facilities; and WHEREAS, the 1992 Subordinate Resolution and the 1993 Subordinate Resolution are herein, collectively, referred to as the "Subordinate Resolutions"; and WHEREAS, the 1992 Notes and the 1993 Notes are herein, collectively, referred to as the "Notes"; and WHEREAS, the 1992 Line of Credit and the 1993 Line of Credit are herein, collectively, referred to as the "Line of Credits"; and WHEREAS, pursuant to the Subordinate Resolutions and the Line of Credits, the Notes are prepayable, in whole or in part, at any time without penalty or premium; and WHEREAS, Article III, Section 4.G of the Ori~nal Resolution provides that the City may issue pari passu additional Bonds ff the conditions in such section are complied with; and WHEREAS, the Commission did, on March 22, 1994, adopt Resolution No. R-27-94 (herein the "1994 Resolution") determining it to be in the best economic interest of the City to issue pari pass~ additional Bonds on parity with the Original Bonds to finance the 1994 Project (as such term is defined in the 1994 Indenture); and WHEREAS, for the purpose of this Resolution, the Original Resolution and the 1994 Resolution are sometimes collectively referred to as the "Bond Resolution"; and WHEREAS, the City is desirous of issuing $5,810,000 in aggregate principal amount of its Utilities Tax Revenue Refunding and Improvement Bonds, Series 1994, pursuant to the terms and provisions of the Bond Resolution and this Resolution (herein called the "1994 Bonds") for the purpose of financing the 1994 Project other than the ...,,.,~,,,.,,,.., ........... ,,.,,.,., 3 Res. No. R-85-94 acquisition and comtruction of permanent seating for the Tennis Facilities and a revised determination of the Debt Service Reserve Requirement for the 1994 Bonds (such 1994 Project as described above is herein referred to as the "Amended 1994 Project"); and W}tEREAS, the Bond Resolution provides that certain details of the 1994 Bonds and certain other provisiom of the Bond Resolution shall be determined by subsequent proceedings of the City, which shall be deemed to be supplemental to the Bond Resolution; and WI-IERF_.AS, the City has determined the details of the 1994 Bonds; and WHEREAS, Stifel, Nicolaus & Company, Incorporated, on behalf of Stifel, Nicolaus & Company, Incorporated, and Smith Barney, Inc. (collectively, the "Underwriters"), has submitted to the City a proposal in the form of a Bond Purchase Agreement (the "Purchase Contract"), attached hereto as Exhibit A, between the Underwriters and the City, to purchase the 1994 Bonds, a copy of which is hereby furnished to each of the City Commissioners; and WI-IEREAS, pursuant to Section 218.385, Florida Statutes, an authorized officer of Stifel, Nicolaus & Company, Incorporated, on behalf of the Underwriters, has delivered to the City a disclosure statement and troth-in-bonding statement, both of which are attached to or incorporated in the Purchase Contract; and WI-IEREAS, there has been prepared and submitted to the City a Preliminary Official Statement, dated October 18, 1994, attached hereto as Exhibit B; and WI-IEREAS, based on the advice of the City's financial advisor, it is in the best interest of the City to accept the Bond Purchase Contract and to award the 1994 Bonds to the Underwriters; and ...,,~,,.,~.~,,o ......... ,,0~,.,.. 4 Res. No. R-85-94 WHEREAS, the City's financial advisor has recommended in a letter, attached hereto as Exhibit C, that the principal and interest on the 1994 Bonds be insured by a municipal bond insurance policy (the "Bond ln.~urance Policy") issued by the Municipal Bond Investors Assurance Corporation, or any successor thereto (the "Bond Insurer"); and WHEREAS, the Commission hereby adopts the recommendations of the City's financial advisor regarding the Bond Insurance Policy; and WHEREAS, as a condition of obtaining the Bond Insurance Policy and establishing the Debt Service Reserve Requirement for the 1994 Bonds, it is necessary to amend and supplement the Bond Resolution. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: SECTION 1. DEFINITIONS. That all capitalized terms used in this Resolution not otherwise defined shall have the meanings ascribed to such terms in the Bond Resolution, unless the context clearly indicates otherwise. SECTION 2. PURPOSE AND BOND DESIGNATIONS. That the City hereby determines at this time (i) to issue $5,810,000 in the aggregate principal amount of its 1994 Bonds for the purpose of (a) financing the costs of the Amended 1994 Project, (b) to pay the costs of issuance of the 1994 Bonds, including paying the premium for the Bond Insurance Policy, and (ii) to designate such 1994 Bonds as its "Utilities Tax Revenue Refunding and Improvement Bonds, Series 1994." SECTION 3. DESCRIPTION OF THE 1994 Bonds. The 1994 Bonds shall be dated October 15, 1994 shall bear interest payable on June 1, 1995, and semiannually ~.,~.,.,.~,,, .... , .......... ,,o,.,~ 5 Res. No. R-85-94 thereafter on December 1 and June 1 of each year, and shall mature on June 1 of each of the years, in the amounts, and at the rates as follows: Year Amount Interest Rate 2003 $ 340,000 5.45% 2004 365,000 5.55 2005 385,000 5.65 2006 410,000 5.75 2007 430,000 5.85 2008 1,580,000 6.00 2012 1,010,000 6.25 2016 1,290,000 6.35 SECTION 4. REDEMPTION PROVISIONS. The 1994 Bonds maturing on and prior to June 1, 2004, shall not be redeemable prior to their stated dates of maturity. The 1994 Bonds maturing on June 1, 2005, and thereafter are redeemable at the option of the City from any legally available source, in part, in any order of maturity selected by the City, and by lot within a maturity if less than an entire maturity is to be redeemed, on June 1, 2004, or at any time thereafter, or as a whole, on June 1, 2004, or at any time thereafter, at the redemption prices (expressed as percentages of the principal amount to be redeemed) set forth below, together with accrued interest to the date fixed for redemption: Redemption Period Redemption (Both dates inclusive) Pric~ June 1, 2004 to May 31, 2005 102% June 1, 2005 to May 31, 2006 101% June 1, 2006 and thereafter 100% ,..,~, .... ,, ........... ,~o,.~,,. 6 Res. No. R-85-94 That the 1994 Bonds maturing on June 1, 2012, shall also be subject to mandatory sinking fund redemption prior to maturity by lot, in such manner as the Registrar (as defined herein) may deem appropriate, on June 1, 2009, and on June 1 of each year thereafter, at a price of par plus accrued interest to the date of redemption, in the amount as follows: Year Amount 2009 $230,0OO 2010 245,000 2011 260,000 2012' 275,000 *Final Maturity That the 1994 Bonds maturing on June 1, 2016, shall also be subject to mandatory sinking fund redemption prior to maturity by lot, in such manner as the Registrar may deem appropriate, on June 1, 2013, and on June 1 of each year thereafter, at a price of par plus accrued interest to the date of redemption, in the amount as follows: Year Amount 2013 $295,000 2014 310,000 2015 330,000 2016' 355,000 *Final Maturity Notice of redemption of the 1994 Bonds shall be mailed, postage prepaid, by the Registrar not less than thirty (30) days before the date fixed for redemption to the registered owners of any 1994 Bonds or portions of 1994 Bonds which are to be redeemed, at their addresses as they appear fifteen (15) days prior to the date such notice is mailed on the registration books of the City kept by the Registrar. Res. No. R-85-94 The Registrar also shall mail (by certified mail, return receipt requested) a copy of such notice for receipt not less than two (2) days before the date notice of redemption is mailed to the registered owners of the 1994 Bonds to the following: The Depository Trust Company, 711 Stewart Avenue, Garden City, New York 11530; Midwest Securities Trust Company, Capital Structures - Call Notification, 440 South LaSalle Street, Chicago, Illinois 60605; Philadelphia Depository Trust Company, Reorganization Division, 1900 Market Street, Philadelphia, Pennsylvania 19103; Attention: Bond Department; provided, however, that such mailing shall not be a condition precedent to such redemption and failure to mail any such notice shall not affect the validity of any proceedings for the redemption of the 1994 Bonds. The Registrar shall also provide notice, at the same time notice of redemption is given to the Bondholders, to Kenny Information Systems Notification Service, 65 Broadway, 16th Floor, New York, New York 10006, and Standard & Poor's Called Bond Record, 25 Broadway, New York, New York 10004; provided, however, that such mailing shall not be a condition precedent to such redemption and failure to mail any such notice shall not affect the validity of any proceedings for the redemption of the 1994 Bonds. A second notice of redemption shall be given sixty (60) days after the redemption date in the manner required above to the registered owners of redeemed 1994 Bonds which have not been presented for payment within thirty (30) days after the redemPtion date. Such notice of redemption shall set forth (i) the date fixed for redemption, (ii) the redemption price to be paid, (iii)that such 1994 Bonds will be redeemed at the designated corporate trust office of the Paying Agent (as herein defined), and the name, ...,~..~, ...... ,,.,, ....... ,,o,,.~.. 8 Res. No. R-85-94 address and telephone number of a contact person, (iv) if less than all of the 1994 Bonds shall be called for redemption, the distinctive numbers, letters and CUSIP identification numbers, if any, of such 1994 Bonds to be redeemed, (v) in the case of 1994 Bonds to be redeemed in part only, the portion of the principal amount thereof to be redeemed, and (vi) any other information the City or the Registrar deems relevant. In case any 1994 Bond is to be redeemed in part only, the notice of redemption that relates to such 1994 Bond shall state also that on or after the redemption date, upon surrender of the 1994 Bond, a new 1994 Bond or 1994 Bonds of the same maturity, bearing interest at the same rate and in aggregate principal amount equal to the unredeemed portion of such 1994 Bond, will be issued. Failure of the registered owner of any 1994 Bonds which are to be redeemed to receive any such notice shall not affect the validity of the proceedings for the redemption of 1994 Bonds for which proper notice has been given. Interest shall cease to accrue on any of the 1994 Bonds duly called for prior redemption if payment of the redemption price has been duly made or provided for. SECTION 5. APPLICATION OF 1994 BOND PROCEEDS. That all net proceeds received by the City from the sale of the 1994 Bonds shall be disbursed as provided in Section 2 of Article III of the 1994 Resolution. In addition, the City hereby authorizes the use of not to exceed $45,000 of its general fund moneys to pay a portion of the costs of thc Amended 1994 Project. SECTION 6. NEGOTIATED SALE. That the Commission hereby adopts the recommendations of the City's financial advisor, as described in a letter from the City's financial advisor, dated the date of this Resolution and attached hereto as Exhibit C. The City hereby finds that, due to the nature of the financing and volatile market conditions, it would be in the best interest of the City that the 1994 Bonds be sold on a negotiated basis. SECTION 7. PURCHASE CONTRACT. That the Purchase Contract for the 1994 Bonds, dated the date of this Resolution, between the City and the Underwriters, as submitted to this meeting and attached hereto as Exhibit A, be and the some hereby is approved and accepted, and the 1994 Bonds are hereby sold to the Underwriters at a purchase price of $5,694,058.95 (representing the par amount of the 1994 Bonds, less underwriters' discount of $60,537.90 and less original issue discount of $55,403.15, plus accrued interest from October 15, 1994 to the date of delivery thereof), on the terms and conditions set forth in the Purchase Contract, and the Mayor of the City or, in his absence, the Vice Mayor is hereby authorized and directed to execute, and the Clerk of the City to attest (if so required by the terms of the Purchase Contract), the Purchase Contract and to deliver the same to the Underwriters. SECTION 8. PRELIMINARY AND FINAL OFFICIAL STATEMENT. That the Official Statement of the City to be dated the date of this Resolution, will be in substantially the form of the Preliminary Official Statement presented to this meeting and attached hereto as Exhibit B, with the such insertions and changes as shall be necessary to reflect the terms of the 1994 Bonds, as set forth in the Purchase Contract and as shall be approved by the Mayor of the City (upon advice of Bond Counsel and the City Attorney) with such approval to be conclusively evidenced by their execution and delivery thereof, and the City hereby approves the use of the final printed Official Statement by the Underwriters in connection with the offering and sale of the 1994 Bonds, and the City hereby further approves the use by the Underwriters of any supplement or amendment to the final printed ~,~, ..... , ........... ,.o,..,., 10 Res. No. R-85-94 Official Statement which is necessary so that the final printed Official Statement does not include any untrue statement of a material fact or does not omit to state any material fact necessary to make the statements therein not misleading. The City hereby ratifies, approves and consents to the use by the Underwriters of the Preliminary Official Statement in connection with the public offering of the 1994 Bonds attached hereto as Exhibit B. The Mayor of the City and the City Manager are hereby authorized and directed to execute the Official Statement and any amendment or supplement thereto, in the name and on behalf of the City, and thereupon to cause the Official Statement and any such amendment or supplement to be delivered to the Underwriters. SECTION 9. PAYING AGENT AND REGISTRAR. That NationsBank of Florida, N.Pu, is hereby appointed as paying agent (the "Paying Agent") and registrar (the "Registrar") for the 1994 Bonds. By the acceptance of such appointment, NationsBank of Florida, N.A., agrees to comply with the terms of the Bond Insurance Policy applicable to it. SECTION 10. DISCLOSURE STATEMENT. That the City does hereby find that the Underwriters have submitted the disclosure statement and truth-in-bonding statement required by Section 218.385, Florida Statutes, copies of which are attached to or incorporated in the Purchase Contract. SECTION 11. BOND INSURANCE POLICY. That, based on the recommendations of the City's financial advisor, set forth in a letter attached hereto as Exhibit C with respect to the 1994 Bonds, the Commission finds that obtaining the Bond Insurance Policy from the Bond Insurer is in the best interests of the City, and the Commission hereby directs that the premium due on the Bond Insurance Policy be paid in ,,.,~,~,,.~,.,, ........... ,..,,,~.. 11 Res. No. R-85-94 accordance with the terms thereof. The City covenants to comply with the terms and Provisions of the Bond Insurer's revised commitment to provide the Bond Insurance Policy. SECTION 12. BANK QUALIFIED DESIGNATION. The Commission hereby designates the 1994 Bonds as "qualified tax-exempt obligations" within the meaning of Section 265(b)(3)(B) of the Internal Revenue Code of 1986, as amended. SECTION 13. AMENDMENTTO ORIGINAL RESOLUTION. Notwithstand- ing any provision in the Original Resolution to the contrary, as a condition of obtaining the Bond Insurance and for as long as the Bond Insurer is not in default under the Bond Insurance Policy, the City covenants not to issue pari l~assu additional Bonds pursuant to Article III, Section 4.G. of the Original Resolution, that bear interest at a variable rate without the express written consent of the Bond Insurer. SECTION 14. AMENDMENT TO 1994 RESOLUTION. The Commission hereby determines to treat the Debt Service Reserve Account established under the Original Resolution for the Original Bonds as also the Debt Service Reserve Account for the 1994 Bonds, notwithstanding anything to the contrary set forth in the 1994 Resolution. The Debt Service Reserve Requirement for the 1994 Bonds and the Original Bonds is hereby established to be $1,642,722.22. Since only $1,480,000is presently on deposit in the Debt Service Reserve Account for the Original Bonds, the difference, in the amount of $162 , 722 . 22 , shall be funded with a portion of the proceeds of the 1994 Bonds. SECTION 15. FURTHER AUTHORIZATIONS. That the Mayor, the Vice Mayor, the City Manager, the Finance Director, the City Clerk, the City Attorney and any other authorized official of the City, be and each of them is hereby authorized and directed to execute and deliver any and all documents and instruments, including but not limited to ~,~,~o~,,~,~,.o~o~oo~,o~,~ 12 Res. No. R-85-94 any conditions to obtain the Bond Insurance Policy, 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 17. EFFECTIVE DATE. That this Resolution shall take effect immediately upon its passage. PASSED AND ADOPTED in special session on this the 26th day of October, 1994. CITY OF DELRAY BEACH, FLORIDA By: ~ Attest: City ~lerk' - f / Date of Adoption: October 26, 1994 EXHIBIT A $5,810,000 CITY OF DELRAY BEACH, PLORIDA . UTILITIES TAX REVENUE REFUNDING AND IMPROVEMENT BONDS 8ERIES 1994 BOND PURCHASE AGREEMENT October 26, 1994 City Commission City of Delray Beach, Florida 100 N.W. First Avenue Delray Beach, Florida 33444 Honorable Mayor and Commissioners: The undersigned stifel, Nicolaus & Company, Incorporated on behalf of itself and Smith Barney Inc. (collectively, the "Underwriter") hereby offers to enter into the following agreement with the city of Delray Beach, Florida (the "City"), which, upon acceptance of this offer by the City, will be binding upon the City and the Underwriter. This offer is made subject to acceptance by the City by execution of this Bond Purchase Agreement (this "Purchase Agreement") and its delivery to the Underwriter at or prior to 11:59 p.m., eastern time, on the date of this Purchase Agreement, and, if not so accepted, will be subject to withdrawal by the Underwriter upon written notice to the City at any time prior to its acceptance by the City. 1. Purchase and Sale of Bo~ds. Subject to the terms and conditions and in reliance upon the representations, warranties and covenants set forth in this Purchase Agreement, the Underwriter agrees to purchase from the City for offering to the public, and the city agrees to sell and deliver to the Underwriter for such purpose, all, but not less than all, of the City's $5,810,000 aggregate principal amount of Utilities Tax Revenue Refunding and Improvement Bonds, Series 1994 (the "Bonds") at a purchase price of $5,694,058.95 (representing the $5,810,000 original principal amount of the Bonds, less $60,537.90 of Underwriter's discount and less $55,403.15 of original issue discount), plus accrued interest for the Bonds from October 15, 1994, to the date of Closing, as herein defined. The City hereby acknowledges receipt of a check from the Underwriter payable to the city in an amount equal to approximately one percent (1%) of the principal amount of the Bonds (the "Good Faith Check") as security for the performance by the Underwriter of its obligation to accept and pay for the Bonds at the Closing (as defined below) in accordance with the provisions of this Purchase Agreement. The City shall retain the check, uncashed, under the circumstances set forth in this paragraph. In the event the City fails to deliver the Bonds at the Closing for any reason outside of its control, or if the City shall be unable to satisfy the conditions to the obligations of the Underwriter contained in this Purchase Agreement or if such obligations shall be terminated for any reason permitted by this Purchase Agreement, the City shall be obligated to immediately return the uncashed Good Faith Check to the Underwriter and the return of such Check shall constitute full satisfaction of any damages or claims the Underwriter may have against the City. In the event the City elects not to deliver the Bonds for any other reason, it shall be obligated to immediately return the uncashed Good Faith Check to the Underwriter, and the Underwriter shall retain all rights at equity or at law which the Underwriter may have against the City. In the event the Underwriter accepts and pays for the Bonds at Closing, the uncashed Good Faith Check shall be returned to the Underwriter at Closing. In the event the Underwriter fails (other than for a reason permitted under this Purchase Agreement) to accept and pay for the Bonds at Closing, the Good Faith Check may be cashed and its proceeds shall be retained by the City as, and for, full liquidated damages for such failure, and not as a penalty, and for any and all defaults on the part of the Underwriter, and upon the cashing of the Good Faith Check, all claims and rights against the Underwriter shall be fully released and discharged, it being understood by the City and the Underwriter that actual damages in such circumstances may be difficult or impossible to compute. Concurrently with the delivery of the Bonds, Municipal Bond Investors Assurance Corporation (the "Bond Insurer") will deliver to NationsBank of Florida, N.A. (the "Paying Agent") for the benefit of the holders of the Bonds, a policy of insurance guaranteeing the timely payment of principal of and interest on the Bonds (the "Bond Insurance Policy"). 2. Public Offering. It shall be a condition to the City's obligation to sell and deliver the Bonds to the Underwriter, and to the obligation of the Underwriter to purchase and accept delivery of the Bonds, that the $5,810,000 aggregate principal amount of the Bonds authorized bythe Resolutions (hereinafter defined) shall be sold and delivered by the City, and purchased, accepted and paid for by the Underwriter at the Closing. The Underwriter agrees to use its best efforts to make a bona fide public offering of all of the Bonds at such initial public offering price or yield as the Underwriter shall determine to be appropriate in light of prevailing market conditions at the time of such offering. The Underwriter hereby represents to the City that each Underwriter is registered under the Securities Exchange Act of 1934, as amended, as a municipal securities dealer. 3. Closing. At 1:00 p.m., eastern time on November 10, 1994, or at such other time or on such other date as is mutually 2 agreed by the City and the Underwriter at a location agreeable to the Underwriter and the City (the "Closing"), the City shall deliver, or cause to be delivered, the Bonds to the Underwriter in definitive form, duly executed and authenticated by NationsBankof Florida, N. A. as bond registrar (the "Bond Registrar"), together with the other documents described in this Purchase Agreement. Subject to the terms and conditions of this Purchase Agreement, the Underwriter shall accept such delivery and deliver the purchase price of the Bonds to the City by wire transfer in immediately available funds to an account to be designated by the City. The Bonds shall be printed or lithographed in form satisfactory to the Underwriter, shall bear CUSIP numbers and shall be prepared and delivered as fully registered Bonds without coupons in authorized denominations, registered in the name of Cede & Co. or in such other names and denominations as the Underwriter may designate to the city in writing at least seven (7) Business Days prior to Closing, and the Bonds shall be made available to the Underwriter on the business day before the Closing for purposes of inspection and packaging. Delivery of the Bonds shall be made at the offices of Depository Trust Company, New York, New York, or such other location as is mutually acceptable to the Underwriter and the City. Time shall be of the essence and payment and delivery at the time and place specified pursuant to this Purchase Agreement is a further condition of the obligation of the Underwriter and the City. 4. Bonds. The Bonds shall be dated, shall mature and shall bear interest at the rates described in the Resolutions. The Bonds shall be issued under the authority of and in full compliance with the Constitution and laws of the State of Florida, including Chapter 166, Florida Statutes, as amended and supplemented, the City Charter of the City as amended and supplemented, and other applicable provisions of law. The Bonds are being issued more specifically pursuant to Resolution No. 98-91 (the "Bond Resolution"), adopted by the City Commission of the City (the "Commission") on December 3, 1991, Resolution No. 27-94, adopted by the Commission on March 22, 1994, which authorized the issuance of the Bonds in an aggregate principal amount not to exceed $8,500,000 (the "Authorizing Resolution"), and a Resolution adopted by the Commission on the date of this Purchase Agreement (the "Award Resolution") fixing the details of the Bonds (collectively, the Bond Resolution, Authorizing Resolution and Award Resolution are referred to as the "Resolutions"). Any Bonds issued pursuant to the Authorizing Resolution were validated and confirmed by a Judgment of the Circuit Court of the Fifteenth Judicial Circuit of Florida, in and for Palm Beach County, rendered on May 17, 1994. The City previously issued its Utilities Tax Revenue Refunding and Improvement Bonds, Series 1992 of which $12,615,000 aggregate principal amount remains outstanding (the "1992 Bonds"). The appeal period has expired and no appeals have been filed. The Bonds are being issued on a parity with the 1992 Bonds secured by a first lien on the proceeds of the City's Utilities Tax. 5. Official Statement. The City approves the form of the draft Official Statement attached to this Purchase Agreement as Exhibit A (the "Official Statement"). The City hereby deems the Preliminary Official Statement dated October 18, 1994 final as of its date for purposes of Rule 15c2-12. As soon as practicable after the date of this Purchase Agreement, and in any event, within seven business (7) days of such date, as required by paragraph (b)(3) of Rule 15c2-12 of the Securities and Exchange Commission ("SEC") or the Rules of the Municipal Securities Rulemaking Board ("MSRB"), the City shall deliver or cause to be delivered to the Underwriter copies of the final printed Official Statement, dated the date of this Purchase Agreement (the "Final Official Statement"), in sufficient quantities to allow the Underwriter to comply with paragraph (b) (4) of Rule 15c2-12 of the SEC and the MSRB, in substantially the form attached to this Purchase Agreement with only such changes as shall be approved by the City and the Underwriter. 6. Representations and Warranties of the City. The City, by its acceptance and execution of this Purchase Agreement, represents, warrants and covenants to the Underwriter that: (a) The City is a municipal corporation, duly organized and validly existing under the Constitution and laws of the State of Florida, and has, and at the date of the Closing will have, full legal right, power and authority (1) to issue the Bonds for the purposes set forth in the Official Statement, (2) to comply with the provisions of the Resolutions, and this Purchase Agreement, and (3) to carry out and consummate all of the transactions contemplated by the Resolutions and this Purchase Agreement applicable to it. (b) The City has complied, and will at the Closing be in compliance in all respects, with the Resolutions and the Constitution and laws of the State of Florida in all matters and transactions relating to this Purchase Agreement. (c) The city has duly adopted the Resolutions and authorized and approved (1) the execution and delivery and performance of this Purchase Agreement and the Bonds, (2) the use and distribution of the Preliminary Official Statement and the execution, delivery and distribution of the Final Official Statement, and (3) the taking of any and all such action as may be required on the part of the City to carry out, give effect to and consummate the transactions contemplated by this Purchase Agreement, the Bonds and the Final Official Statement. (d) The Resolutions have been duly adopted by the City and are in full force and effect and constitute legally valid and binding obligations of the City enforceable in accordance with their terms, and this Purchase Agreement has been duly 4 approved, authorized, executed and delivered by the City, and, assuming due authorization, execution and delivery of this Purchase Agreement by the Underwriter, constitute the legal, valid and binding obligations of the City enforceable in accordance with their terms. (e) When delivered to and paid for by the Underwriter at the Closing in accordance with the provisions of this Purchase Agreement, the Bonds will have been duly authorized, executed, authenticated, issued and delivered, will constitute legal, valid and binding limited obligations of the City and will be entitled to the benefit and security of the Resolutions. (f) Upon the execution, issuance and delivery of the Bonds, the Resolutions will provide, for the benefit of the holders from time to time of the Bonds, a legally valid and binding pledge of and a security interest in Pledged Revenues (as defined in the Resolutions), which will be sufficient to pay the principal of and interest on the Bonds, when due. (g) Other than any approvals that might be required under the securities laws of any state and the filing of Form 8038 with the Internal Revenue Service and disclosure forms with the Florida Division of Bond Finance, no approval, permit, consent or authorization of, or registration or filing with, any governmental or public agency or authority or any other entity not already obtained or to be obtained prior to Closing, or made, or to be made prior to Closing is required to be obtained by the City in connection with the issuance and sale of the Bonds, or the execution and delivery by the City of, or the due performance of its obligations under, this Purchase Agreement, the Bonds, and the Resolutions, and any such approvals, permits, consents or authorizations so obtained are in full force and effect. (h) The City has no reason to believe that it will not obtain any approval, permit, consent or authorization of any governmental or public agency or any other entity not already obtained which is required in connection with the transactions contemplated by the Resolutions or this Purchase Agreement. (i) To the best of its knowledge, the City is not in breach of or default under any applicable constitutional provision, law or administrative regulation of the State of Florida or the United States, the Resolutions, the City Charter of the City, or any applicable judgment or decree or any other loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the City is a party or to which the city or any of its property or assets is otherwise subject, that could have an adverse affect on the business or operations of the City, and no event has occurred and is continuing that with the passage of time or the giving 5 of notice, or both, would constitute a default under any such instrument. (j) The adoption of the Resolutions, the execution and delivery by the City of this Purchase Agreement, the Bonds and any other instrument to which the City is a party and which is used or contemplated for use in conjunction with the transactions contemplated by the Resolutions or this Purchase Agreement, and the compliance with the provisions of each such instrument and the consummation of any transactions contemplated of each, will not conflict with or constitute a breach of, or default under any indenture, commitment, agreement, or other instrument to which the City is a party or by which it is bound, or under any provision of the Constitution of the State of Florida or any existing law, rule, regulation, ordinance, judgment, order or decree to which the City or its properties is subject. (k) There is no action, suit, hearing, inquiry or investigation, at law or in equity, before or by any court, public board, agency or body, pending or, to the best knowledge of the City, threatened against or affecting the City (nor to the best knowledge of the city is there any basis for any such proceeding) or any of its Commissioners or officers in their respective capacities as such, in which an unfavorable decision, ruling or finding would, in any way, adversely affect (1) the transactions contemplated by the Resolutions or this Purchase Agreement, (2) the organization, existence or powers of the city or any of its Commissioners or officers in their respective capacities, (3) the business, properties or assets or the condition, financial or otherwise, of the City, (4) the validity or enforceability of the Bonds, this Purchase Agreement, the Resolutions, or any other indenture, resolution commitment, agreement or other instrument to which the City is a party or by which it is bound, and which is used or contemplated for use in conjunction with the transactions contemplated by this Purchase Agreement or by the Resolutions, (5) the exclusion from gross income for federal income tax purposes of the interest on the Bonds, (6) the issuance, sale or delivery of the Bonds, or (7) the assessment, and collection of Utilities Taxes or any other monies or properties pledged or to be pledged under the Resolutions to pay the principal or premium, if any, or interest on the Bonds. (1) The City has not issued, assumed or guaranteed any indebtedness, incurred any material liabilities, direct or contingent, or entered into any contract or arrangement of any kind payable from or secured by a pledge of its Utilities Tax Revenues, except as set forth in the official Statement. 6 (m) The Official Statement does not contain any untrue or misleading statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (n) The financial statements of the City contained in the Official Statement present fairly the financial condition and results of operations of the City at the dates and for the periods 'set forth therein, and there have been no material changes in the financial operation, conditions or results of the City since the date of such statements. (o) The City has not been notified of any listing or proposed listing by the Internal Revenue Service to the effect that the City is a bond issuer whose arbitrage certifications may not be relied upon. (p) Any certificate delivered in connection with the sale of the Bonds and signed by any official of the City authorized to do so shall be deemed a representation and warranty by the City to the Underwriter as to the statements made in such certificate. (q) The City has not, since December 31, 1975, been in default in the payment of principal of, premium, if any, or interest on, or otherwise been in default with respect to, any bonds, notes or other obligations which it has issued, assumed or guaranteed as to payment of principal, premium, if any, or interest. (r) (i) For the purposes of this Purchase Agreement, the term "Disclosure Period" shall mean the earlier of (1) ninety (90) days from the End of the Underwriting Period, or (2) the time when the Final Official Statement is available to any person from a nationally recognized municipal securities information repository, but in no case less than twenty-five (25) days following the End of the Underwriting Period. (ii) For the purposes of this Purchase Agreement, the term"End of the Underwriting Period" shall mean the later of such time as (1) the Closing, or (2) the time at which the Underwriter does not retain, directly or as members of an underwriting syndicate, an unsold balance of the Bonds for sale to the public. (iii) Both at the time of acceptance of this Purchase Agreement by the City and (unless amended or supplemented as described in Section 6(v) of this Purchase Agreement) at all times during the Disclosure Period the statements and the information contained in the Final Official Statement pertaining to the City and the use and application 7 of the proceeds of the Bonds are and will be true, correct and complete in all material respects and the Final official Statement, to the knowledge of the City, does not as of the date of acceptance of this Purchase Agreement and the Final Official Statement will not (unless amended or supplemented as described in Section 6(v) of this Purchase Agreement) at all times during the Disclosure Period, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements and information therein, in light of the circumstances under which they were made, not misleading in any material respect. (s) Prior to the execution of this Purchase Agreement, the City delivered to the Underwriter copies of the Preliminary official Statement which the City deemed to be final for purposes of Rule 15c2-12 as of the date of the Preliminary Official Statement, except for the omission of no more than the following information: the offering price(s), interest rate(s), selling compensation, aggregate principal amount, principal amount per maturity, delivery date, ratings and other terms of the Bonds depending on such matters. (t) If the Final Official Statement is supplemented or amended pursuant to Section 6(v) of this Purchase Agreement, at the time of each supplement or amendment to the Final Official Statement and (unless subsequently again supplemented or amended pursuant to Section 6(v) of this Purchase Agreement) at all times during the Disclosure Period, the Final Official Statement as so supplemented or amended will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained in the Final Official Statement, in the light of the circumstances under which they were made, not misleading. (u) During the DisclOsUre period, the City will (i) not adopt any'amendment of or supplement to the Final Official Statement to which, after havin~ been furnished with a copy, the Underwriter shall reasonably objectinwriting, unless the City has obtained.the opinion of Bond Counsel (as defined below), stating thatsuch amendment or supplement is necessary in order to make the Final Official Statement not misleading in light of the circumstances existing at the time that it is delivered to a purchaser, and (ii) if any event relating to or affecting the City shall occur which would or might cause the information contained in the Final Official Statement, as then supplemented or amended, to contain any untrue statement of a material fact or to omit to state a material fact required to be stated in the Final Official Statement or necessary to make the statements in the Final Official Statement, in light of the circumstances under which they were made, not misleading, the City shall notify the Underwriter thereof, and if as a 8 result of which it is necessary, in the opinion of Counsel to the Underwriter (as defined below), to amend or to supplement the Final Official Statement in order to make the Final official Statement not misleading in light of the circumstances existing at the time it is delivered to a purchaser, the City shall promptly prepare and furnish to the Underwriter (at the expense of the City unless such untrue statement is a result of information provided by the Bond Insurer or Underwriter) a reasonable number of copies of an amendment of or supplement to the Final Official Statement (in form and substance satisfactory to the Underwriter and the City) which will amend or supplement the Final Official Statement so that such Final official Statement, as amended or supplemented, will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements in the Final Official Statement, in light of the circumstances existing at the time the Final official Statement is delivered to a purchaser, not misleading in any material respect. Unless otherwise notified in writing by the Underwriter on or prior to the Closing Date, the End of the Underwriting Period for the Bonds for all purposes of Rule 15c2-12 and Section 6(s)(ii) above, is the Closing Date. In the event such notice is given in writing by the Underwriter, the Underwriter agrees to notify the city in writing following the occurrence of the End of the Underwriting Period for the Bonds. (v) The city shall cause to be made available to the Underwriter such reasonable quantities, not to exceed 300 copies, of the Final Official Statement as the Underwriter may request for use in connection with the offering and sale of the Bonds. (w) The city shall apply the proceeds from the sale of the Bonds, including, without limitation, the investment of such proceeds, as provided in and subject to all of the terms and provisions of the Resolutions. (x) The City shall not take or omit to take any action which action or omission will adversely affect the exclusion from gross income for federal income tax purposes of the interest on the Bonds under Section 103 of the Internal Revenue Code of 1986, as amended. (y) The City shall furnish such information and execute such instruments as the Underwriter may reasonably request to qualify the Bonds for offer and sale under the Blue Sky or other securities laws and regulations of such states and other jurisdictions in the United States as the Underwriter may designate and to determine the eligibility of the Bonds for investment under the laws of such states and other jurisdictions and to continue such qualifications in effect so 9 long as required for the distribution of the Bonds, provided that the City shall not be required to execute a general or special consent to service of process or qualify to do business in connection with any such qualification or determination in any jurisdiction. (z) The City shall advise the Underwriter immediately of receipt by the City of any notification with respect to the suspension of the qualification of the Bonds for sale in any jurisdiCtion or the initiation or threat of any proceeding for that purpose. 7. Conditions of Closing. The Underwriter has entered into this Purchase Agreement in reliance upon the representations, warranties and agreements of the City contained in this Purchase Agreement and contained in the documents and instruments delivered at the Closing, and upon the performance by the City of its obliga- tions, as of the date of the Closing. Accordingly, the City's obligations under this Purchase Agreement shall be subject to conditions set forth in Section 7(e) below, and the Underwriter's obligations under this Purchase Agreement to cause the acceptance of delivery and payment for the Bonds shall be subject to the performance by the City of its obligations contained in this Purchase Agreement and such other documents and instruments at or prior to the Closing, and shall also be subject to the following conditions: (a) At the Closing, (i) the Resolutions, and this Purchase Agreement shall be in full force and effect and shall not have been repealed, amended, modified or supplemented, except as may have been agreed to in writing by the Underwriter, and the City shall have executed and there shall be in full force and effect and there shall have been taken in connection therewith and in connection with the issuance of the Bonds all such action as shall, in the opinion of the City Counsel (as defined below), Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A. ("Bond Counsel") or Bryant, Miller and Olive, P.A. ("Counsel to the Underwriter"), be necessary in connection with the transactions contemplated by this Purchase Agreement, (ii) the Bonds shall have been duly authorized, executed and delivered, (iii) the Final Official Statement shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Underwriter, and (iv) the City shall perform or have performed all of its obligations under or specified in this Purchase Agreement, the Official Statement and the Resolutions to be performed at or prior to the Closing. (b) At or prior to the Closing, the Underwriter and the city shall have received the following documents: 10 (1) Evidence of compliance with Florida Statutes §215.84, as amended. (2) Copies of the Resolutions certified by the City Clerk under the seal of the City as true copies and as having been adopted with only such amendments, modifica- tions or supplements as may have been approved by the Underwriter. (3) A certified copy of the final judgment of the Circuit Court of the Fifteenth Judicial Circuit of Florida in and for Palm Beach County validating the Bonds, together with evidence that the time for taking an appeal from such order has expired; (4) The Official Statement executed on behalf of the City by the Mayor or other authorized officer of the Commission. (5) A certificate of the City, dated the date of Closing, signed on its behalf by the Mayor of the City or his designee, in form and substance satisfactory to Bond Counsel, the Underwriter and Counsel to the Underwriter, in which such official, to the best of his knowledge, states: (A) that the representations and warranties of the City contained in this Purchase Agreement are true and correct in all material respects as of the Closing, that the City has satisfied all conditions on its part to be performed or satisfied under this Purchase Agreement at or prior to the Closing, and that the information and statements with respect to the City contained in the Final Official Statement are true, correct and complete in all material respects for the purposes for which such Final Official Statement is to be used, and nothing has come to his or her attention that would lead him or her to believe that such information in the Final Official Statement includes any untrue statement of a material fact or omits to state a material fact necessary to make the statements in the Final Official Statement, in the light of the circumstances under which they were made, not misleading; (B) that no event affecting the City has occurred since the date of the Final Official Statement which should be disclosed in the Final Official Statement for the purposes for which it is to be used or which it is necessary to disclose in the Final Official Statement in order to make the statements and information in the Final Official Statement not misleading in any material respect; (C) that the financial statements and the other financial and statistical data relating to the City included in the Final official Statement are true and correct as of the date of such certificate; and (D) that no obligations issued or guaranteed by the City are in 11 default as to payment of principal or interest or have been in default as to payment of principal or interest at any time after December 31, 1975. (6) An opinion, dated the date of Closing, of Bond Counsel, substantially in the form attached as Appendix D to the Final Official Statement. (7) An opinion or opinions, dated the date of Closing, of Bond Counsel, in substantially the form of Exhibit B hereto; (8) An opinion, dated the date of Closing, of Susan A. Ruby,. Esquire (the "City Counsel"), in substantially the form of Exhibit C hereto; (9) An opinion, dated the date of Closing, of Bryant, Miller and Olive, P.A., Counsel to the Underwriter (the "Underwriter Counsel"), in substantially the form of Exhibit D hereto; (10) A certificate, dated the date of Closing, of the authorized officers of the City to the effect that, on the basis of the facts, estimates and circumstances in effect on the Closing Date, it is not expected that the proceeds of the Bonds will be used in a manner that would cause the Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Internal Revenue Code of 1986, as amended; (11) Evidence satisfactory to the Underwriter that the Bond Insurance Policy has been issued and is in full force and effect. (12) An opinion of Bond Insurer's counsel, addressed to the Underwriter, to the effect that (i) the Bond Insurer is a stock insurance corporation duly incorporated and validly existing and in good standing under the taws of the State of New York, (ii) the Bond Insurance Policy for the Bonds has been duly executed and is a valid and binding obligation of the Bond Insurer enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, rehabilitation and other similar laws of general applicability relating to or affecting creditors' and/or claimants' rights against insurance companies and the general equity principles, and (iii) the statements contained in the Preliminary Official Statement and the official Statement under the caption "MUNICIPAL BOND INSURANCE", insofar as such statements constitute a description of the Bond Insurance Policy, accurately summarize the Bond Insurance Policy and the form attached 12 as "APPENDIX E" to the Official Statement is a true and correct form of the Bond Insurance Policy. (13) Evidence of the issuance and maintenance on the Closing Date of ratings assigned to the Bonds of not less than "Aaa" from Moody's Investors Service, Inc. and not less than "AAA" from Standard & Poor's Corporation and "AAA" from Fitch Investors Service, Inc. (14) Such additional legal opinions, certificates (including such certificates as may be required by regulations of the Internal Revenue Service in order to establish the tax exempt character of the Bonds, which certificates shall be satisfactory in form and substance to Bond Counsel), and other evidence as the Underwriter or Bond Counsel or Counsel to the Underwriter may deem necessary to evidence the truth and accuracy as of the Closing of the representations and warranties of the City herein contained and of the information contained in the Final Official Statement and the due performance and satisfaction by the City at or prior to such time of all agreements then to be performed and all conditions then to be satisfied by it. Ail of the opinions, letters, certificates, instruments and other documents mentioned above or elsewhere in this Purchase Agreement shall be deemed to be in compliance with the provisions of this Purchase Agreement if, but only if, they are in form and substance satisfactory to the Underwriter. Receipt of, and payment for, the Bonds shall constitute evidence of the satisfactory nature of such as to the Underwriter. The performance of any and all obligations of the City under this Purchase Agreement and the performance of any and all conditions in this Purchase Agreement for the benefit of the Underwriter may be waived in writing by the Underwriter in their sole discretion. If the City shall be unable to satisfy the conditions to the obligations of the Underwriter to cause the purchase, acceptance of delivery and payment for the Bonds contained in this Purchase Agreement, or if the obligations of the Underwriter to cause the purchase, acceptance of delivery and payment of the Bonds shall be terminated for any reason permitted by this Purchase Agreement, this Purchase Agreement shall terminate, and neither the Underwriter nor the City shall be under further obligation except that the respective obligation of the Underwriter and the City set forth in the second paragraph of Section 1 and in Section 9 shall continue in full force and effect. 8. Termination. The Underwriter shall have the right to terminate the Underwriter's obligations under this Purchase Agreement to cause the purchase, acceptance of delivery and payment 13 for the Bonds by notifying the City of its election to do so if, after its execution and prior to the Closing: (a) The marketability of the Bonds or their market price, in the opinion of the Underwriter, has been adversely affected by any decision issued by a court of the United States (including the United States Tax Court) or of the State of Florida, by any ruling or regulation (final, temporary or proposed) or official statement issued by or on behalf of the Department of the Treasury of the United States, the Internal Revenue Service, or any other governmental agency of the United States, or any governmental agency of the State of Florida, or by a tentative decision with respect to legislation reached by a committee of the House of Representatives or the Senate of the Congress of the United States, or by legislation enacted by, pending in, or favorably proposed (whether by press release or otherwise) or reported to either the House of~Representatives or the Senate of the Congress of the United States or either house of the legislature of the State of Florida, or formally proposed to the Congress of the United States by the President of the United States or to the Legislature of the State of Florida by the Governor of the State of Florida in an executive communication, affecting directly or indirectly, prospectively or retroactively, the tax status of the City, its property or income, its bonds or obligations of a general character of the Bonds (including the Bonds) or the interest thereon, or any tax exemption or exclusion from gross income for federal tax purposes granted or authorized pertaining thereto; or (b) The United States shall have become engaged in hostilities which have resulted in a declaration of war or a national emergency, or there shall have occurred any other outbreak of hostilities, or a local, national or international calamity or crisis, financial or otherwise, the effect of such outbreak, calamity or crisis being such as, in the reasonable opinion of the Underwriter, would adversely affect the ability of the Underwriter to market the Bonds (it being agreed by the Underwriter that there is no outbreak, calamity or crisis of such a character as of the date hereof); or (c) There shall have occurred a general suspension or cessation of trading on the New York Stock Exchange or in the market for obligations of Florida issuers or in identifiable segments of the market for bonds of the type proposed to be issued by the City; or minimum or maximum prices for trading shall have been fixed and be in force or maximum ranges for prices for securities shall have been required and be in force on the New York Stock Exchange or other national securities exchanges, or the establishment of any new restrictions in transactions involving securities materially affecting the free market for securities (including the imposition of any 14 limitations on interest rates) whether established by the New York Stock Exchange or other national securities exchanges, the Securities and Exchange Commission, any other federal or state agency or the United States Congress or Executive Order; or (d) There shall have been declared and be in force a general banking moratorium by Federal, New York or Florida authorities; or (e) Any Federal, State or County court, authority or regulatory body shall take action which adversely affects the ability of the city to proceed with the Projects or the refunding as contemplated by the Final Official Statement; or (f) An event described in Section 6 hereof occurs which in the opinion of the Underwriter requires a supplement or amendment to the Final Official Statement, and such supplement or amendment is not prepared by the City or such event, supplement or amendment materially affects, in the reasonable opinion of the Underwriter, the ability of the Underwriter to offer or sell the Bonds or to enforce contracts for the sale of Bonds. 9. Expenses. (a) The City agrees to pay, and the Underwriter shall be under no obligation to pay, all expenses incident to the performance of City's obligations hereunder, including but not limited to (1) the cost of printing or other reproduction (for distribution prior to, on or after the date of acceptance of this Purchase Agreement) of the Final Official Statement; (2) the cost of engraving, reproducing and signing the definitive Bonds and the cost of reproducing and signing any temporary Bonds issued and delivered pending the delivery of definitive Bonds if the Bonds are non-book entry bonds; (3) the fees and disbursements of Bond Counsel, Financial Advisor to the City and any other experts or consultants retained by the City; (4) the fees and disbursements of the bond registrar and paying agent under the Resolutions; (5) charges by rating agencies for the rating of the Bonds, if rated; and (6) charges by the Bond Insurer, and (7) the out-of-pocket expenses of the City, provided, however, at the direction of the City, the Underwriter shall pay the charges set forth in (6) above directly from net bond proceeds. (b) The Underwriter shall pay, and the City shall be under no obligation to pay, (1) the cost of qualifying the Bonds for sale in various states chosen by the Underwriter and the cost of preparing or printing any Blue Sky and legal investment memoranda to be used in connection with such sale; and (2) out-of-pocket expenses, including advertising, incurred by it in connection with its offering and distribution of the Bonds, including the fees and disbursements of Underwriter's Counsel, any MSRB fees and fees incurred to obtain CUSIP numbers. 15 (c) In the event that either the City or the Underwriter shall have paid obligations of the other as set forth in this Section, adjustment shall be made at or prior to Closing. 10. Disclosure. Concurrently with the delivery of this Purchase Agreement, the Underwriter has delivered a disclosure statement to the City as required pursuant to Section 218.385, Florida Statutes, as amended. The Underwriter has also provided to the City the Truth-in-Bonding Statement as set forth in Section 11. The City by execution of this Purchase Agreement acknowledges receipt of such disclosure statement and Truth-in-Bonding Statement. 11. Truth in Bonding Statement. (a) The city is proposing to issue $ City of Delray Beach, Florida, Utilities Tax Revenue Refunding and Improvement Bonds, Series 1994 for the municipal purposes described in the Official Statement. This debt or obligation is expected to be repaid over a period of (__) years and (__) months. At a net interest rate of %, total interest paid over the life of the debt or obligation will be $ . (b) The source of repayment or security for this proposal to issue the Bonds is the City's Utilities Tax Revenues. 12. Miscellaneous. (a) Ail notices, demands and formal actions hereunder shall be in writing and mailed, telegraphed or delivered to: The Underwriter: Stifel, Nicolaus & Company 1177 George Bush Boulevard Suite 403 Delray Beach, Florida 33483 Attention: Kevin McCarty The City: City of Delray Beach, Florida 100 N.W. First Avenue Delray Beach, Florida 33444 · Attention: Joseph Safford (b) This Purchase Agreement will inure to the benefit of and be binding upon the parties hereto and their successors and assigns, and will not confer any rights upon any other person. The terms "successors" and "assigns" shall not include any purchaser of any of the Bonds from the Underwriter merely because of such purchase. This Purchase Agreement shall not be assigned by the City. (c) Ail the representations, warranties, covenants and agreements of the City in this Purchase Agreement shall remain operative and in full force and effect, regardless of (1) any investigation made by or on behalf of the Underwriter, or (2) 16 delivery of and payment for the Bonds hereunder. Unless otherwise terminated in accordance with the terms hereof, this Purchase Agreement shall terminate upon delivery of the Bonds to the Underwriter and receipt by the City of the funds required pursuant hereto. The agreements in Section 9 hereof shall survive any termination or cancellation of this Purchase Agreement. (d) If any provision of this Purchase Agreement shall be held or deemed to be or shall, in fact, be invalid, inoperative or unenforceable as applied in any particular case in any jurisdiction or jurisdictions, or in all jurisdictions, because it conflicts with any provisions of any Constitution, statute, rule of public policy or any other reason, such circumstances shall not have the effect of rendering the provision in question invalid, inoperative or unenforceable in any other case or circumstance, or of rendering any other provision or provisions of this Purchase Agreement invalid, inoperative or unenforceable to any extent whatever. (e) This Purchase Agreement shall become effective upon the execution of the acceptance hereof by the Mayor of the City or other authorized officer of the City and shall be valid and enforceable at the time of such acceptance. (f) This Purchase Agreement, when accepted in writing as heretofore specified, shall constitute the entire agreement between the parties and is made solely for the benefit of the City and the Underwriter (including the successors or assigns of the Underwriter). (g) For purposes of this Purchase Agreement, "business day" means any day on which the New York Stock Exchange is open for trading and on which New York and Florida banks are open for business. (h) Section headings have been inserted in this Purchase Agreement as a matter of convenience of reference only, and it is agreed that such section headings are not a part of this Purchase Agreement and will not be used in the interpretation of any provisions of this Purchase Agreement. (i) This Purchase Agreement shall be governed by and construed in accordance with the laws of the State of Florida. (j) This Purchase Agreement may be executed in several counterparts, each of which shall be regarded as an original and all of which shall constitute one and the same document. STIFEL, NICOLAUS & COHPANY, INCORPORATED By: 17 Accepted Pursuant to Resolution of the City Adopted as of the date first above written: By: Mayor Approved as to form: By: City Attorney J:\BONOS\403g~BPA4110/'25/941 GED I R 18 EXHIBIT A TO BOND PURCHASE AGREEMENT [Official Statement] EXHIBIT B TO BOND PURCHASE AGREEMENT [Bond Counsel Supplemental Opinion] November 10, 1994 City of Delray Beach, Florida Palm Beach County, Florida Stifel, Nicolaus & Co., Inc. Smith Barney Inc., as Underwriter Re: $5,810,000 City of Delray Beach, Florida, Utilities Tax Revenue Refunding and Improvement Bonds, Series 1994 Ladies and Gentlemen: This supplemental opinion is rendered at your request in connection with the issuance by the City of Delray Beach, Florida (the "City"), of the above-captioned bonds (the "Bonds"). In connection with that issuance, we have delivered to the City our approving opinion, of even date herewith, as bond counsel (the "Legal Opinion"). You may rely upon such Legal Opinion to the same extent as if it were addressed to you. This supplemental opinion is rendered at your request and upon your acknowledgement that we have not assumed any obligation after the date hereof to render legal advice or opinions to you with respect to the Bonds. All capitalized terms not defined herein shall have the same meaning as in the Bond Purchase Agreement, dated October 26, 1994, between the City and Stifel, Nicolaus & Co., Inc. and Smith Barney Inc. (the "Purchase Agreement"). All capitalized terms shall have the. meaning ascribed to them in the Basic Documents. For the purpose of this opinion, the Resolutions, the Bonds and the Purchase Agreement shall be referred to as the Basic Documents. We have examined the Basic Documents and such other documents and certificates we deemed relevant and, based upon such examination, we are of the opinion that, under existing law: 1. The Basic Documents and the Official Statement have been duly authorized, executed and delivered on behalf of the City. The Purchase Agreement constitutes a binding and enforceable agreement of the City in accordance with its terms. 2. The Resolutions have been duly adopted by the City and such Resolutions have not been amended or repealed. The B-1 Resolutions create a valid first lien on the City's Utilities Tax Revenues in favor of the holders of the Bonds. 3. The City has duly executed and delivered the Official Statement in accordance with the terms of the Purchase Agreement, and the City has authorized its distribution and use by the Underwriter in connection with the public offering of the Bonds in accordance with the terms of the Purchase Agreement. 4. The information in the Final Official Statement under the captions "Introduction", "Description of the Series 1994 Bonds", "Projects", "Source of Payment and Security for the Series 1994 Bonds", "Tax Exemption", "Validation", and Appendix C, insofar as such statements summarize certain provisions of the documents referred to in the Final official Statement, including without limitation, the Bonds, or refers to the opinion bond counsel will render, constitutes a fair and accurate summary of the matters referred to therein. 5. The Bonds have been duly executed, authenticated and delivered in accordance with the Resolutions. 6. The city's 1992 Utility Tax Note and 1993 Utility Tax Note have been paid in full and the holders no longer have a lien of any kind on the City's Utilities Tax Revenues. 7. The Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Resolutions are exempt from qualification under the Trust Indenture Act of 1939, as amended. We are furnishing this opinion to you solely for your benefit in connection with the original delivery of the Bonds. This opinion is not to be used, circulated, quoted or otherwise referred to in any other connection than as may be required by law. Respectfully submitted, B-2 EXHIBIT C TO BOND PURCHASE ~GREEMENT [city Attorney Opinion] November 10, 1994 City of Delray Beach, Florida Palm Beach County, Florida Stifel, Nicolaus & Co. Inc. Smith Barney Inc. Re: $5,810,000 City of Delray Beach, Florida, Utilities Tax Revenue Refunding and Improvement Bonds, Series 1994 Ladies and Gentlemen: I am the city Attorney for the City of Delray Beach, Florida (the "city") and have served in such capacity in connection with the issuance of the above-captioned bonds (collectively, the "Bonds") and related transactions. This opinion is furnished pursuant to the Bond Purchase Agreement dated October 26, 1994 (the "Purchase Agreement") between the City and Stifel, Nicolaus & Co., Inc. and Smith Barney Inc. (the "Underwriter"). All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Purchase Agreement. I have reviewed such documents and instruments as I deemed necessary to render the requested opinion. Based upon examination of such documents and matters of law as I determined relevant for the purposes of this opinion, and subject to the reservations set forth herein, I am of the opinion that: 1. The City is a municipal corporation of the State of Florida, dulY organized and validly existing under the Constitution and laws of the State of Florida. 2. The City is authorized to execute and deliver the Bonds, the Purchase Agreement, and the Official Statement and to perform its obligations thereunder or as described therein. 3. The city is authorized to pledge to the repayment of the Bonds the Utilities Taxes, the Utilities Tax Ordinance has been duly enacted by the City, and the City has fulfilled all requirements necessary to impose the Utility Taxes. 4. The Resolutions have been duly adopted and the execution and delivery by the City of the Bonds, the Purchase Agreement, and the Final official Statement, and the performance of its C-1 obligations thereunder or as described therein, for and in the name of the City, have been duly authorized by the City, and it creates a valid lien on the proceeds of the City's Utilities Tax. 5. The City has duly approved and executed the Final Official Statement and has duly authorized the distribution thereof by the Underwriter in connection with the public offering of the Bonds. 6. The Bonds, the Purchase Agreement, and the closing certificates of the City delivered on this date have been duly aUthenticated, as applicable, authorized, executed and delivered by the City and constitute valid and legally binding obligations of the City enforceable against the City in accordance with their respective terms. 7. To the best of my knowledge, no authorization, approval, consent, license or other action of any court or public or governmental or regulatory 'authority having jurisdiction over the City that has not been obtained is or will be required for the issuance and sale of the Bonds or the valid and lawful authorization, execution and delivery of, or consummation by the City of the other transactions contemplated by, the Resolution, Purchase Agreement and the Official Statement. I do not, however, express any opinion regarding compliance with the Blue Sky, legal investment, or Federal securities laws. 8. The adoption by the City of the Resolutions and the execution and delivery by the City of the Bonds, the Purchase Agreement, and the Final official Statement and compliance on the City's part with the provisions contained or described therein, will not conflict with, violate or constitute a breach of or a default under (a) any existing law, court or administrative regulation, order or decree, or (b) any commitment, mortgage, lease, indenture, agreement, contract or instrument to which the City is a party or by which it or any of its properties is bound. 9. To the best of my knowledge, after due inquiry, the City is not in breach of or default under any applicable constitutional provision, law or administrative regulation of the State of Florida or the United States,. the Resolutions, the City Charter of the City, or any applicable judgment or decree or any other loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the City is a party or to which the City or any of its property or assets is otherwise subject, that could have an adverse effect on the business or operations of the City, and no event has occurred and is continuing that with the passage of time or the giving of notice, or both, would constitute a default under any such instrument. 10. To the best of my knowledge, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before C-2 or by the Circuit Court of the State of Florida in and for the Fifteenth Judicial Circuit or in the United States District Court for the Southern District of Florida or any other court, governmental agency, public board or body for which the City has received actual notice, pending or, to the best of my knowledge, after due investigation, threatened against the city or any of its Commissioners or officers in their respective capacities as such relating to (i) the transactions contemplated by the Resolutions or the Purchase Agreement, (ii) the organization, existence or powers of the city or any of its Commissioners or officers in their respective capacities as such, (iii) the business, properties or assets or the condition, financial or otherwise, of the City, (iv) the validity or enforceability of the Bonds, the Purchase Agreement, the Resolutions, or any other indenture, commitment, agreement or other instrument to which the City is a party or by which it is bound, and which is used or contemplated for use in conjunction with the transactions contemplated by the Purchase Agreement or by the Resolutions, (v) the exclusion from gross income for federal income tax purposes of the interest on the Bonds, (vii) the assessment and collection of the Utilities Tax by the City or any other monies or properties pledged or to be pledged under the Resolutions to pay the principal or premium, if any, or interest on the Bonds, (viii) contesting in any way the completeness or accuracy of the Final Official Statement or (iv) wherein an unfavorable decision, ruling or finding would materially and adversely affect the validity or enforceability of the Bonds or the Purchase Agreement. 11. The City has not issued, assumed or guaranteed any indebtedness, incurred any material liabilities, direct or contingent, or entered into any contract or arrangement or any kind payable from or secured by a pledge of the Utilities Tax, except as set forth in the Final Official Statement. 12. The statements and information relating to the City, the Utilities Taxes and the Bonds, including the application of the proceeds thereof, set forth in the Final Official Statement (except for the financial statements and other financial and statistical data included therein as to which no view is expressed) did not on the date of the Final Official Statement, and do not on the date hereof, contain any untrue or misleading statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. All opinions as to the enforceability of the legal obligations of the City set forth herein are subject to and limited by bankruptcy, insolvency, reorganization, moratorium, and similar laws in each case relating to or affecting the enforcement of creditors' rights generally, and subject to the enforceability thereof, and to the exercise of judicial discretion in accordance with the general principles of equity. C-3 I am qualified to practice law in the State of Florida and, for the purpose of this opinion, I do not purport to be an expert on, or to express an opinion herein concerning, the laws of any other jurisdiction (including any such laws which may be applicable by virtue of the application of the choice of law provisions under Florida law) except the laws of the United States to the extent set forth herein. No one, ~other than the addresses named above, is entitled to rely upon the statements made, and conclusions expressed, within this opinion. Very truly yours, C-4 E~IBIT D TO BOND PURCHASE /~REEMENT [FORM OF UNDERWRITER'S COUNSEL OPINION] November 10, 1994 Smith Barney Inc. Barnett Centre, 8th Floor 625 North Flagler Drive West Palm Beach, FL 33401 stifel, Nicolaus & Co., Inc. 1177 George Bush Blvd., Suite 308 Delray Beach, FL . 33483 Re: $5,810,000 City of Delray Beach, Florida, Utilities Tax Revenue Refunding and Improvement Bonds, Series 1994 Ladies and Gentlemen: In connection with the issuance of the captioned obligations (the "Bonds"), which are today being delivered to you, the Under- writers, pursuant to a Bond Purchase Agreement (the "Bond Purchase Agreement") dated October 26, 1994, we have reviewed such proceedings, records, certificates, documents and questions of law as we have considered necessary to enable us to render this opinion. All capitalized undefined terms used herein shall have the meaning set forth in the Bond Purchase Agreement. To the extent that the opinions expressed herein relate to or are dependent upon the determination that the proceedings and actions.relating to the authorization, issuance and sale of the Bonds are lawful and valid under the Constitution and statutes of the State of Florida, that the Bonds and the Resolution are valid and legally binding obligations of the City of Delray Beach, Florida, or that the Bonds and the interest thereon are excluded from gross income of the owners of the Bonds for federal income tax purposes, we understand that you are relying upon the opinions delivered to you on the date hereof of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., Bond Counsel, and Susan Ruby, Esquire, City Attorney, and, with your permission, we have assumed the accuracy of such opinions and we have made no independent determination thereof. We have acted as your counsel in connection with your review of and input into the contents of the final official Statement dated October 26, 1994 (the "Official Statement"). Our engagement D-1 has necessarily involved a review of certain financial and statis- tical information as to which, with your permission, we express no opinion regarding the accuracy and completeness of any such information. In connection with your review of and input into the contents of the final official Statement, we have generally reviewed information furnished to us by, and have participated in telephone conferences with, representatives of the City of Delray Beach, Florida, the City Attorney, Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., Bond Counsel, you, and others, in which such contents of the official Statement and related matters were discussed. With your permission we have relied upon certificates of officials of the city of Delray Beach, Florida, and upon written opinions and letters received from Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., Bond Counsel, the city Attorney, and Municipal Bond Investors Assurance Corporation ("MBIA"). We have considered the information contained in the official Statement and, based upon our review and discussions noted above, and in reliance upon the accuracy of the information contained in the aforementioned certificates and opinions, but without having undertaken any independent investigation of such information, nothing has come to our attention which leads us to believe that the official Statement contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that we express no opinion regarding financial and other statistical data included in the official Statement, including but not limited to the Appendices thereto, information relating to MBIA and information contained in Appendix C to the official Statement. We are further of the opinion that it is not necessary in connection with the sale of the Bonds to register the Bonds under the Securities Act of 1933, as amended, or to qualify the Indenture under the Trust Indenture Act of 1939, as amended. This letter is furnished by us as your Counsel and is solely for your benefit and shall not extend to, and may not be relied on by, any other person, firm or corporation without written permission from us. Very truly yours, BRYANT, MILLER AND OLIVE, P.A. J:\BON DS\4039%UWCOP~ N 110/'25./941 GED I R D-2 EXHIBIT C TO RESOLUTION NO. 85-94 PUBLIC FINANCIAL MANAGEMENT, INC. Financial and Investment Advisors 5900 Enterprise Parkway Fort Myers, FL 33905 813-693-7117 (Pax) 813-693-6384 October 25, 1994 The Mayor and Commissioners, City of Delray Beach, Florida 100 N.W. 1st Avenue Delray Beach, Florida 33444 Ladies and Gentlemen: Public Financial Management, Inc. CPFM"), Financial Advisor to the City of Delray Beach, Florida (the "City"), is pleased to provide this recommendation regarding the method of sale and credit enhancement for the City's Utilities Tax Revenue Refunding and Improvement Bonds, Series 1994 (the "Series 1994 Bonds"). PFM believes that a negotiated, rather than competitive, sale is the most appropriate method of sale for the Series 1994 Bonds. Under a negotiated sale, unlike a competitive sale, the City's investment banking team is able to assist the financing team in pre-sale marketing activities to insure that the Series 1994 Bonds will be well received by the municipal market. We believe that this type of assistance will be necessary in order to adequately address potential investor concerns and provide sufficient pre-sale interest in the Series 1994 Bonds. Additionally, tax- exempt interest rates have been subject to considerable volatility during recent months, and a negotiated sale will provide the City with more flexibility than a competitive sale with regard to entering the market at the most opportune time. Under current market conditions, PFM believes that purchasing municipal bond insurance for the Series 1994 Bonds, at the quoted price, would provide the City with a significant economic benefit. The use of such credit enhancement allows the City to broaden the scope of prospective investors. The present value savings attributable to the lower interest costs to be received on the Series 1994 Bonds will more than offset the cost of credit enhancement. Sincerely, PUBLIC FINANCIAL MANAGEMENT, INC. -~ T6rry L. Wright Managing Consultant cc: Becky O'Connor Atlanta Austin Boston Denver Fort Myers Harrisburg Houston Los Angeles Memphis Minneapolis New York Orlando Philadelphia Portland San Francisco {An Affiliate of Marine Midland Bank, N.A.