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Res 98-93 RESOLUTION NO. 98-93 A RESOLUTION OF THE CITY COIOiZSSION OF THE CITY OF DELRAY BEACH, FLORIDA, AUTHORIZING THE ISSUAHCE OF NOT TO EXCEED $6L0,000 IN AGGREGATE PRINCIPAL AMOUNT OF UTILITIES TAX REVENUE NOTE8, SUBORDINATE SERIES ~993, OFT HE CITY OF DELRAY BEACH, FLORIDA, PURSUANT TO A LINE OF CREDIT HADE AVAILABLE THROUGH SUN BANK/8OUTH FLORIDA, N.A., FOR THE PURPOSE OF PROVIDING SHORT TERM FINANCING FOR THE C08TB OF TENNIS COURT8 M~DRHLATED FACILITIES, THE REHABILITATION AMDRECONSTRUCTION OF POMPEY PARK POOL AND TO PAY THE COSTS OF ISSUANCE THEREOF; PROVIDING FOR THE TERI(H AND PAYMENT OF 8AID UTILITIES TAX REVENUE NOTES, SUBORDINATE SERIES ~993, AND THE RIGHTS, REIiBDIES AND SECURITY OF THE OWNERS THEREOF; HAKING CERTAIN COVENA]fTS RELATING TO THE ISSUANCE OF SAID UTILITIES TAX REVEHUE NOTES, SUBORDINATE SERIES L993; AUTHORIZING THE PROPER OFFICERS OF THE CITY TO DO ALL OTHER THINGS DEEHED NECESSARY OR ADVISABLE IN CONNECTION WITH THE ISSUANCE OF 8AID NOTE8; AHD PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of Delray Beach, Florida (the "City Commission"), has determined that it is in the best interest of the City of Delray Beach, Florida (the "City"), to provide short term financing of the Projects (as such term is defined below); WHEREAS, the City has determined that it is necessary to authorize the issuance of not to exceed $610,000 aggregate principal amount of City of Delray Beach, Florida, Utilities Tax Revenue Notes, Subordinate Series 1993 (the "Notes"), for the purpose of financing the costs of construction, acquisition and equipping of the Projects; WHEREA~, the Notes shall be secured by a pledge of and lien on the proceeds of the Utilities Tax (as defined below), subject and subordinate in all respects to the pledge of and lien on such Utilities Tax proceeds for the payment of the Outstanding Bonds (as such term is defined below); NHE~P,%~, the Notes will be issued on parity with the City's outstanding Utilities tax Revenue Notes, Subordinate Series 1992 (herein, the "Prior Notes"); WHERP-%~, in light of present market conditions and the immediate need to finance the Projects, the City Commission determines it would be in the best interest of the City to sell the Notes to SunBank/South Florida, N.A. (the "Bank"), on a negotiated basis; and - Res. No. 98-93 NHER~A~, pursuant to that certain Agreement Regarding Line of Credit, dated as of October 1, 1993 (the "Line of Credit Agreement"), by and between the Bank and the City, the Bank has agreed to make available to the City a closed-end line of credit in the aggregate principal amount of not exceeding $610,000 (the "Line of Credit"). NON, THEREIORI, be it resolved by the City Commission of the City of Delray Beach, Florida, as follows: Res. No. 98-93 ARTICLE ~ ~T~TUTORY &UTHORITY~ FINDIN~ AND DEFINITION~ ~ECT~ON L.L. ~UTHOR~TY FOR THXB REBOLUT~ON. 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 projects and the financing and refinancing of such capital projects subject to specific final approval by the City Commission of each component set forth as follows: (i) the acquisition, construction and equipping of phase II Delray Beach Tennis Center, including the construction of the tennis courts, landscaping and irrigation, electrical, plumbing, paving, drainage, site furniture and related and incidental costs thereto in an amount not to exceed $400,000; (ii) the rehabilitation and reconstruction of the City's Pompey Park Pool, including engineering costs and other related and incidental costs thereto in an amount not to exceed $200,000; (iii) certain infrastructure improvements and all other costs and expenses associated therewith, as more fully set forth in Sec- tion 1.2.G. hereof, including the costs of issuing the Notes; and (iv) 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 the substitution of Projects will not adversely affect the exclusion of interest on the Notes from gross income for Federal income tax purposes (collectively, the "Pro- jects''). Such Projects may be initially financed from all or a part of the proceeds derived from the Notes 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 Projects in order to preserve and promote the safety and welfare of the citizens of the City and that such Projects will be in the best economic interest of the City. C. That the Projects will serve valid municipal purposes. D. That the City has heretofore issued and has now outstanding $13,405,000,000 principal amount of Utilities Tax Revenue Refunding and Improvement Bonds, Series 1992 (the "1992 Bonds"), issued under the Original Resolution (as herein defined). C:~ATA~YXM~.~qO.~ 3 Res. No. 98-93 E. That, pursuant to proceedings heretofore adopted, the City has been levying a tax on the purchase of certain utilities services (the "Utilities Tax"), the proceeds of which 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 Outstanding Bonds and the Prior Notes (as such terms are herein defined). F. That the lien of the Notes authorized herein on the proceeds of the Utilities Tax, when issued, shall be junior and subordinate, as to the lien of the Outstanding Bonds on the Utilities Tax proceeds and in all other respects to the pledge and lien granted to the Outstanding Bonds. G. That the cost of the Projects shall be deemed to include, but not be limited to, the cost of construction and improvements, the cost of real estate, including easements and other interests therein, or any other property real or personal, necessary therefor; administrative expenses; engineering and legal expenses; expenses for fiscal agents or f.inancial services; the fees and expenses of Bond Counsel; expenses for estimates of costs and of Utilities Tax proceeds; expenses for plans, specifications and surveys; and such other expenses as may be necessary or incidental to the Projects and the issuance of the Notes herein authorized. H. That the principal of and interest on the Notes shall be secured solely by and paid from the Pledged Revenues (as defined herein); and the ad valorem taxing power of the City will never be necessary or authorized to pay the principal of and interest on the Notes, and the Notes issued pursuant to this Resolution shall not constitute a lien upon any other property whatsoever of or in the City. I. That the Notes shall be issued on parity with the Prior Notes. J. That a negotiated sale of the Notes to the Bank is in the best interest of the City by reason of the nature of and schedule for the contemplated Projects and by virtue of the fact that the Notes will not be rated or credit enhanced. K. That the Line of Credit Agreement, in the form attached hereto as' Exhibit 'B, 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 and City Clerk are hereby authorized to execute the same on behalf of the City. L. That the City hereby determines and certifies to the Bank that it shall satisfy the requirements of Section 3.8 of the Prior Resolution prior to the issuance of the Notes. Res. No. 98-93 .BECTION 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: A. "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. B. "Assumed Amortization" shall mean only for purposes of the additional obligation test set forth in Section 3.8 of this Resolution, that principal on the outstanding balance of the Notes shall be payable on each Interest Payment Date in equal install- ments with a fifteen year term. C. "Authorized Investments" shall mean any of the following: (a) U.S. Obligations; (b) 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, Federal Housing Administra- tion, Maritime Administration, Public Housing Authority, Government National Mortgage Association; (c) 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; (d) certificates of deposit, either in excess of FDIC insurance or without FDIC insurance, properly secured at all times, by collateral security described in clause (a) and (b) 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 loah associations and mutual savings banks or other "qualified public depository"; (e) 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; c:~,T^m~Y~.~m~o.~ 5 Res. No. 98-93 (f) written repurchase agreements with any bank, savin~s 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 (a) above, and provided further that (i) such collateral is held by the City or any agent 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 liqui- date the collateral; (g) money market funds rated in the highest rating category of either Standard & Poor's Corporation or Moody's Investors Service, or any successor thereto; and (h) 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. D. "Bank" shall mean Sun Bank/South Florida, N.A., the initial Noteholder. E. "Bond Counsel" shall mean Mudge Rose Guthrie Alexander & Ferdon or any other firm of nationally recognized bond counsel selected by the City. F. "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. G. "City Commission"" shall mean the duly constituted governing body of th~ City. H. "Code" shall mean the Internal Revenue Code of 1986, as amended, the applicable Treasury Regulations promulgated there- under and any administrative or judicial interpretations of the same published in a form on which the City may rely as a matter of law. C: ~A TA ~ ~J..{tA YX]~,~W~.~%{~.~O. ~ 6 Res. No. 98-93 I. "Debt Service Fund" shall mean the Delray Beach · Subordinate Note Debt Service Fund, created and established pursuant to the Prior Resolution and continued and maintained under this Resolution, and which is the fund in which the proceeds of the Utilities Tax shall be deposited by the City for the payment of the Notes and Prior Notes in accordance with the provisions hereof and in the Prior Resolution. J. "Defeasance Obligations" shall mean, to the extent permitted by law, the following securities: (a) U.S. Obligations; (b) Any bonds or other obligations of any state of the United States of America or of any agency, instrumen- tality 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 premium, if any, by a fund consisting only of cash or bonds or other obligations of the character described in clause (a) 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 (b), as appropriate, and (iii) as to which the principal of and interest on the bonds and obliga- tions of the character described in clause (a) 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 (b) 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 (b), as appropriate; (c) Evidences of indebtedness issued by the Federal Home Loan Ba~ks, 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 instru- mentality 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 C:~ATA~ELRAY1MA~.~tESO.~ 7 Res. No. 98-93 (d) Evidences of ownership of proportionate inter- ests 'in future interest and principal payments on obligations described in (a) held by a bank or trust company as custodian. K. "Interest Rate" shall mean the rate of interest on the Notes which, when calculated on an actual 365/366-day year basis, shall be equal to four and thirty-five hundredths percent (4.35%) per annum. L. "Maturity Date" shall mean, with respect to the unpaid principal of and interest on the Notes, December 1, 1994. M. "1992 Bonds" shall mean the outstanding Utilities Tax Revenue Refunding and Improvement Bonds, Series 1992, authorized by the Original Resolution. N. "Notes" shall mean the not to exceed $610,000 aggregate principal amount of Utilities Tax Revenue Notes, Subordinate Series 1992, authorized by th_is Resolution. O. "Noteholder" or "Owner" or "Holder" or any similar term shall mean any person who shall be the registered owner of any Note or Notes outstanding under this Resolution. P. "Original Resolution" shall mean Resolution No. 98-91, adopted by the City Commission on December 3, 1991, as amended and supplemented by Resolution No. 18-92, adopted by the City Commission on January 23, 1992, authorizing the issuance of the 1992 Bonds. Q. "Outstanding Bonds" shall mean the 1992 Bonds and any additional parity obligations issued pursuant to the Original Resolution. R. "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. S. "Payment Date" shall mean each June 1 and December 1 commencing June 1, t994, including the Maturity Date or any date the principal of the Notes is optionally prepaid in whole or in part. T. "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 to the prior lien on such moneys for the payment of the Outstanding Bonds. C:~^T^~et~AY~t~.~.SO.~ 8 Res. No. 98-93 U. "Prime Rate" shall mean the annual interest rate announced by SunBanks, 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 SunSanks, Inc. V. "Prior Notes" shall mean the City's outstanding Utilities Tax Revenue Notes, Subordinate Series 1992, issued pursuant to the terms and provisions of the Prior Resolution. W. "Prior Resolution" shall mean Resolution No. 116-92, adopted by the City Commission on October 13, 1992, as amended and supplemented by Resolution No. 118-92, adopted by the City Commission on October 20, 1992, which resolutions authorized the issuance of the Prior Notes. X. "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 rust company appointed by the City to act as Registrar hereunder. Y. "Resolution" shall mean this Resolution as the same may from time to time be amended and supplemented in accordance with the terms hereof. Z. "Tax Certificate" shall mean the Tax Certificate as to Arbitrage and the Provisions of Section 141 through 150 of the Internal Revenue Code of 1986 executed by the City on the date of the first drawing. AA. "U. S. Obligations" shall mean the direct obliga- tions of, or obligations on which the timely payment of principal and interest are unconditionally guaranteed by the United States of America, 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. BB. "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. C: ~ATA~ELRAYII~A~.~RESO.~ 9 Res. No. 98-93 CC. "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. gECTION 1.4. REBOLUTION CONgTITUTE~ CO~'RACT. In consideration of the acceptance of the Notes 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 Noteholder 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 Noteholder. C:~)ATA~DELRAYX~{ATT.~6~E~O.V2 10 Res. No. 98 - 93 ~TICLE ~I ~UT~ORI~TION, TEI~, E~ECUTION ~ RE~ISTI~,TION OF NOTES SECTION 2.1. AUTHORIZATION OF NOTES. Subject and pursuant to the provisions of this Resolution, obligations of the City of Delray Beach, Florida, to be known as "Utilities Tax Revenue Notes, Subordinate Series 1993" are hereby authorized to be issued in the aggregate principal amount of not exceeding six Hundred Ten Thousand Dollars ($610,000) for the purpose of providing short term financing for the costs of the Projects. SECTION 2.2. DESCRIPTION OF NOTES. The text of the Notes shall be substantially in the form attached hereto as Exhibit A with such omissions, insertions and variations as may be necessary and desirable, as evidenced by the City's execution thereof. The Notes (initially issued in one (1) typewritten certificate) shall be dated the date of the_first drawing. Except as otherwise provided in Section 2.8 hereof, the Notes shall bear interest on the outstanding principal amount of the Notes from time to time at the Interest Rate and shall be payable on each Payment Date, commencing June 1, 1994. The principal of the Notes and all accrued and unpaid interest on the Notes shall be payable on the Maturity Date. The Notes shall be issued in registered form. Principal and interest 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 Notes shall be numbered in such manner as may be prescribed by the Registrar. The Notes 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 Notes 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 Notes, 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, together with interest accrued and unpaid to the prepayment date on the principal amount then being paid; and the amount of principal and interest then due and payable shall be paid C:\DATA~EI~A~.~.~ 11 Res. No. 98-93 (i) in case the entire unpaid balance of the principal of the Notes is to be pa~d, upon presentation and surrender of the Note or Notes 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 the Notes is to be paid, upon presentation of such Note or Notes 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 and interest on the Notes then paid or for issuance of a replacement Note in the principal amount not redeemed. Notwithstanding the provisions of clause (ii) above, if all of the Notes are registered in the name of the Bank, a partial prepayment may be effected by payment to the Bank of the principal and interest then due without surrender of the Notes~ such payment to be evidenced by notation by the Bank and the City on the marking grid on the Notes which may be separated therefrom for such purpose. If, on the prepayment date, funds for the payment of the principal amount to be prepaid, together with interest to the prepayment date on such principal amount, shall have been provided to the Paying Agent, _as above provided, then from and after the prepayment date interest on such principal amount of the Notes shall cease to accrue. If said funds shall not have been so paid on the prepayment date, the principal amount of the Notes shall continue to bear interest until payment thereof at the Interest Rate. ~~[_~_~. EXECUTION OPT HE NOTES. The Notes 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 signatures of the Mayor of the City and City Clerk on the Notes may be manual or facSimile signatures. In case any one or more of the officers who shall have signed or sealed the Notes shall cease to be such officer of the City before the Notes so signed and sealed Shall have been actually sold and delivered, such Notes may nevertheless be sold and delivered as herein provided and may be issued as if the person who signed or sealed such Notes had not ceased to hold such office. The Notes may be signed and sealed on behalf of the City by such person who at the actual time of the execution of. the Notes shall hold the proper office, although at the date the Notes shall be actually delivered such person may not have held such office or may not have been so authorized. The Notes shall bear thereon a certificate of authentica- tion, in the form set forth on Exhibit A 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 Notes as shall bear thereon such certificate of authentication shall be entitled to any right or benefit under this Resolution and no Notes shall be valid or obligatory for any purpose until such certificate of authentication shall have been duly executed by the Registrar. C:~ATA\DHLI~AYXMA~.36~20.~ 12 Res. No. 98-93 The certificate of authentication of the Registrar upon the Notes executed oh behalf of the City shall be conclusive evidence that the Notes so authenticated have been duly authenticated and delivered under this Resolution and that the Owner thereof is entitled to the benefits of this Resolution. $~CTION 2.4. NE~OTI/tBILITY, REGISTRATION ~ND CANCEL- LATION. The Registrar shall keep books for the registration of the Notes and for the registration of transfers of the Notes. The Notes shall be transferable at the option of the registered Owner thereof, but subject to the prior written approval of the City's Director of Finance (which shall not be withheld if the intended transferee provides a suitability letter addressed to the City as to the sophistication of the investor), 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 Note, the City shall issue in the name of the transferee a new Note. The City, the Paying Agent and the Registrar shall deem and treat the person in whose name the Notes shall be registered upon the books kept by the Registrar as the absolute Owner of such Notes, whether such Notes shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal of and interest on such Notes as the same become due and for all other purposes. Ail 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 Notes to the extent of the sum or sums so paid,, and neither the City, the Paying Agent nor the Registrar shall be affected by any notice to the contrary. In all cases in which the privilege of transferring the Notes is exercised, the City shall execute and the Registrar shall authenticate and deliver the Notes in accordance with the provi- sions of this Resolution. The Notes surrendered in any such transfers shall forthwith be delivered to the Registrar and cancelled by the Registrar in the manner provided in this Section. There shall be no charge for any transfer of the Note, but 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 Notes 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 Notes shall thereupon be promptly cancelled. The Notes so cancelled 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 Notes, and one executed certificate shall be filed c:~^T^~u~.~mso.~ 13 Res. No. 98-93 with the City and the other executed certificate shall be retained by the Registrar. ~J~~. MUTILATED, DESTROYED, STOLEN OR LOST NOTES. In case any Note shall become mutilated, destroyed, stolen or lost, the City may execute and the Registrar shall authenticate and deliver a new Note of like date, maturity and denomination as the Note so mutilated, destroyed, stolen or lost; provided that, in the case of any mutilated Note, such mutilated Note shall first be surrendered to the City and, in the case of any lost, stolen or destroyed Note, 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 Note shall be about to mature or have matured, instead of issuing a duplicate Note, 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 Note their reasonable fees and expenses in connection.with this transaction. Any Note surrendered for replacement shall be cancelled in the same manner as provided in Section 2.4 hereof. Any such duplicate Note issued pursuant to this Section shall constitute additional contractual obligations on the part of the City, whether or not the lost, stolen or destroyed Note be at any time found by anyone, and such duplicate Note shall be entitled to equal proportionate benefits and rights as to lien on the source and security for payment from Pledged Revenues with the Note issued hereunder. ~ECTZON 2.6. CONDITIONS FOR DRAWING UNDER THE LIN~ OF CREDIT ~ND ISSUANCE OF THE NOTE. In connection with a drawing under the Line of Credit (a "Drawing") the following conditions will apply: A. Except in the case of the initial Drawing, written notice (signed by the City Manager, Finance Director or Treasurer of the City) of the City's intention to make a Drawing at least two (2) business days prior to the date specified for such Drawing (such notice shall confirm that the City is in compliance with the covenants set forth in Section 3.4 hereof, Section 3.8 of the Prior Resolution, and ~hat the use of moneys from a Drawing will be in compliance with Section 3.6 hereof); and B. Only with respect to the first Drawing, a fully executed Tax Certificate, dated as of the date of such Drawing; and C. Only with respect to the first Drawing, a copy of a completed and executed Form 8038-G to be filed with the Internal Revenue Service; and C:~DATA~DEL{AY1MATr.36~ItESO.V2 14 Res. No. 98-93 D. Only with respect to the first Drawing, an Opinion of Bond Counsel, satisfactory to the Noteholder, regarding the due authorization, execution, delivery, validity and enforceability of the Notes and the due adoption of this Resolution and the Original Resolution (enforceability of such instruments may be subject to standard bankruptcy exceptions and the like) and the exclusion of interest on the Notes from gross income for Federal income tax purposes, that the Notes are not specified "private activity bonds" within the meaning of Section 57(a)(5) of the Code and, therefore, the interest on the Notes 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 Notes owned by corporations may be subject to the Federal alterna- tive minimum tax which is based in part on adjusted current earnings); and E. Only with respect to the first Drawing, an Opinion of the City Attorney, satisfactory to the Noteholder, regarding the due authorization, execution, delivery, validity and enforceability of the Notes and the due adoption of t~is Resolution and the Original Resolution (enforceability may be subject to standard bankruptcy exceptions and the like). F. With respect to the First Drawing, a general certificate of the City in form satisfactory to the Bank. SECTION 2.7. GRID NOTATION. With respect to Drawings on the Line of Credit and repayments, in part thereof, the City and the Bank shall make the appropriate notations on the "Grid" attached to the Note which may be separated therefrom for such purpose. ~. INTEREST~ATIADJUSTMENT. If the interest on the Notes 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 Notes shall be adjusted so that the Notes shall bear interest at the Prime Rate. 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 Notes 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 Notes, is includable for Federal income tax purposes in the gross income of the Bank. A Determination of Taxability shall not include inclusion of interest on any Note in the income of the Bank for purposes of any alternative minimum tax, environmental tax or branch profits tax. C:\DATA~E{..{IAYX{,~%~.~'%~.~..~O.~ 15 Res. No. 98-93 In the case of (i) above, no Determination of Taxability shall be d~emed to occur unless the City has been given timely written notice by the Bank of such determination by the Internal Revenue Service and an opportunity to participate in and seek at its own expense, a final administrative determination or determina- tion 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 administra- tive 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 additions to tax or penalties, resulting from the interest on the Notes being includable in the Bank's gross income for Federal income tax purposes, and any arrears in interest resulting from such D~termination of Taxabili- ty. 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 Notes within 60 days of the date the City is notified by the Bank that such amounts are due. c:~^?^m~u~.~m~o.~ 16 Res. No. 98-93 ARTICLE III COVBHAHTS, FUNDS AND APPLICATION THEREOF SECTION 3.1. NOTES NOT TO BE INDEBTEDNESS OF THE CITY. The Notes 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. No Noteholder 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 Notes or the interest thereon. The pledge of the Pledged Revenues will not constitute a lien upon any property of the City. ~_~T.g]~,~_~. NOTES JUNIORAHDSUBORDINATE TO OUTSTANDING BONDS. The lien of the Notes on the Pledged Revenues shall be junior and subordinate, as to the lien of the Outstanding Bonds on the Utilities Tax proceeds and in all other respects, to the pledge and lien granted to the Outstanding Bonds. S~CTION 3.3. NOTES SECURED BY PLEDGE OF PLEDGED REVENUES. From and after the issuance of any of the Notes, and continuing until the payment of all Notes as to principal and interest, the Pledged Revenues shall continue to be pledged, subject to the prior lien with respect to the Utilities Tax proceeds set forth in Section 3.2, for the prompt payment of principal of and interest on said Notes. The Notes shall be issued on parity in all respects with the City's outstanding Prior Notes. SECTION 3.4. COVENAHTS OF THE CITY. As long as any of the principal of or interest on any of the Notes shall be outstand- ing 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 Notes remaining unpaid, together with interest accrued and to accrue thereon, the City covenants with the Noteholder as follows: A. Tax Covenants Relating to the Internal Revenue Code oz ~086, as amended. (1) In order to maintain the exclusion from gross income.for purposes of Federal income taxation of interest on the Notes, the City covenants to comply with each requirement of the Code. In furtherance of the covenant contained in the preceding sentence, the City a~rees to continually comply with the provisions of the "Tax Certificate as to Arbitrage and Instructions as to Compliance with the provisions of Section 103(a) of the Internal Revenue Code of 1986, as amended" to be executed by the City and delivered on the date of issuance and delivery of the Notes, 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 Noteholders that the City shall not take any action or omit to take any action, C:~^?^~LaA~M~.~U~O.~ 17 Res. No. 98-93 which action or omission, if reasonably expected on the date of initial issuance and delivery of the Notes, would cause any of the Notes 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 Notes pursuant to Section 148(f) of the Code. (4) Notwithstanding any other provision of this Resolution to the contrary, as long as necessary in order to maintain the exclusion from gross income for purposes of Federal income taxation of interest on the Notes, the covenants contained in this Section shall survive the payment of the Notes and the interest thereon, including any payment or discharge thereof pursuant to Section 3.7 of this Resolution. B. Continuation of Debt Se--'vice Pun4. There was created and established under the Prior Resolution the following fund entitled the "Delray Beach Subordinate Note Debt Service Fund" (hereinafter referred to as the "Debt Service Fund"). Such Debt Service Fund shall be continued and maintained for the purpose of paying the Notes. The Debt Service Fund shall constitute a trust fund for the benefit of the Noteholder 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 the Prior Resolution and 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 allocations of the funds on deposit therein for the various purposes of such funds. The designation and establishment of the Debt Service Fund in and by the Prior Resolution and continuation hereunder 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 applica- tion of such revenues as provided herein. Any excess' amounts remaining in the Debt Service Fund after payment has been made on the Notes and Prior Notes 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 the investment and reinvestment of the moneys on C;~ATA~Y'~W,L~,~{.,'~,~O,~ 18 Res. No. 98-93 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, 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 addition to the amounts required to be deposited therein to pay the Prior Notes, as set forth in the Prior Resolution, an amount equal to one-sixth (1/6) of an amount sufficient to pay the interest becoming due on the Notes on the next Payment Date, and shall further cause to be deposited 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 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 Notes. 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. B. Enforoement of Coil.orions. 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· P. 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 Prior Notes, the Notes, and the Outstanding Bonds 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. C: ~ATA~F.I.RAY1MA~. ~tF..qo. ~ 19 Res. No. 98-93 SE~TZON 3.S. REMEDIES OF NOTEHOLDER. Should the City default in'any obligation created by this Resolution or the Prior Resolution, the Noteholders 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 Resolu- tion or the Prior Resolution, and may enforce and compel the performance of all duties required by this Resolution or the Prior Resolution, or by any applicable statutes to be performed by the City or by any officer thereof. The City hereby agrees with the Noteholders 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 Noteholders 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 obligations set forth in the Original Resolution the Noteholders 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 th~ Noteholders' right to exercise any remedy permitted hereunder shall be subordinate in all respect to the rights of the owners of the Outstanding Bonds. SECTION 3.6. APPLICATION OF NOTE PROCEEDS. The proceeds of the Notes shall be used to provide short term financing for the costs of the Projects. The City may substitute any of the Projects 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 the substitution of Projects will not adversely affect the exclusion of interest on the Notes from gross income for Federal income tax purposes. SECTION 3.?. DISCHARGE AND SATISFACTION OF NOTES. The covenants, liens and pledges entered into, created or imposed pursuant to this Resolution may be fully discharged and satisfied with respect to the Notes in any one or more of the following ways: (a) by paying the principal of and interest on the Notes when the same shall become due and payable; or (b) by depositing in the Debt Service Fund or such o~her accounts as the City may hereafter create and establish by resolution moneys sufficient at the time of such deposit to pay the Notes and all interest thereon as the same become due on said Notes 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 Noteholders for the c:~^T^~~.~o.~ 20 Res. No. 98-93 payment of the Notes and all interest thereon) moneys which, when invested in Defeasance Obligationg, will provide moneys which shall be sufficient to pay the Notes and, all interest thereon as the same shall become due on said Notes 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 Notes shall no longer be deemed to be outstanding for the purposes of this Resolution and the Prior Resolution, and all liability of the City with respect tot he Notes shall cease, terminate and be completely discharged and extinguished, and the Noteholders shall be entitled for payment solely out of the moneys or securities so deposited. ~j~_~_~. ADDITIONAL OBL/GATXONS. The City covenants with the Noteholders that as long as the Notes issued under this Resolution are outstanding, it will not issue any ~ DaSSU additional Bonds (as such term is defined in the Original Resolu- tion) or any other debt obligations secured by a pledge of the proceeds of the Utilities Tax which would be Junior, inferior and subordinate to the.outstanding Bonds and/or on parity with or Junior to the Notes (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, the Prior 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, the Prior Resolution, and this Resolution, and any supplemental resolutions hereafter adopted for the issuance of Utilities Tax Debt. (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 U~ilities Tax Debt,. as evidenced by a certificate executed by the Finance Director of the City and as may be adjusted, &e hereinafter provided, will be equal to one hundred twenty-five per centum (125%) of the maximum annual debt service on (1) the Outstanding Bonds issued pursuant to the Original Resolution then outstanding, (2) the outstanding Prior Notes, (3) the outstanding Notes heretofore issued (assuming, for purposes of this Section only, that the entire authorized amount of $610,000 has been issued) less any repayments of principal made by the City, and (4) 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 C:\DaT^~m_*~A~MA~.~6~.~ 21 ReS. NO. 98-93 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 adjust- able 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 shall be calculated in accordance with the 30-year Revenue Bond Index, as published by The Bond BuveF 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 Ta~ Debt shall have, by amendment or supplement to the Utilities Tax Ordinance, increased the Utilities Tax to be collect- ed, 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 (2) 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 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 the Notes shall be determined by using the Assumed Amortization. Res. No. 98-93 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 Noteholders. This Resolution may be amended, changed, modified and altered without the consent of the Noteholders, (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 Noteholders, or (iii) to maintain the exclusion of interest on the Notes from gross income for Federal income tax purposes. SECTION 4.2. ADDITIONAL AUTHORIZATION. The Mayor, the City Manager, the Finance Director 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 Notes issued hereunder. SECTION 4.4. REPEALER. Ail 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. Res. No. 98-93 SECTION 4.$. EFFECTIVE DATE. This Resolution shall be effective immediately upon its adoption. Passed and adopted in regular session on this 12th day of October, 1993. City Clerk The foregoing resolution and the form of Note therein contained are hereby approved by m~ as to form, language and execution this 12th day of October, ~993. · City Attorney 24 Res. No. 98-93 Exhibit A FORM OF NOTE No. R-_ UNITED STATES OF AMERICA STATE OF FLORIDA CITY OF DELRAY BEACH, FLORIDA Utilities Tax Revenue Note, Subordinate Series 1993 Interest Maturity Dated Rate Date Date [4.35%] December 1, 1994 October __, 1993 Registered Owner: Sun Bank/South Florida, N.A. Principal Amount: Not to Exceed $610,000 KNOW ALL MEN BY THESB PREBENTS, 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, 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 of $610,000 or suchiesser amount either advanced by SunBank/South Florida, N.A., to the City pursuant to the Note Resolution (as herein defined) or as a result of partial prepayment of this Note, with interest thereon at the Interest Rate specified above calculated on the basis of the actual number of days elapsed in a 365/366-day year, on the Maturity 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 Note is authorized to be issued in a principal amount of not exceeding $610,000 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 C:\DATA~LI~AYXIViA~.~.~O.~ 25 Res. No. 98-93 provisions of law (the "Act"), and Resolution No. 98-91, duly adopted by the City on the 3rd day of December 1991 (the "Original Resolution"), Resolution No. 116-92, duly adopted on October 13, 1992, as amended and supplemented (the "Prior Resolution"), and Resolution No. 98-93, duly adopted by the City on october 12, 1993 (the "Note Resolution"), as such resolutions may be further amended and supplemented from time to time, and is subject to all terms and conditions of said resolutions (the Original Resolution, the Prior Resolution, and the Note Resolution are sometimes, collectively, referred to as the "Resolution"). Any term used in this Note and not otherwise defined, shall have the meaning ascribed to such term in the Note Resolution. It is hereby certified and recited that all acts, conditions and things required to exist, to happen, and to be performed, precedent to and in the issuance of this Note exist, have happened and have been performed in regular and due form and time as required by the Laws and Constitution of the State of Florida and the Charter of the City applicable thereto, and that the issuance of this Note, is in full compliance with all constitu- tional or statutory limitations or provisions. This Note shall not be valid or become obligatory for any purpose or be entitled to any security or benefit under the Note Resolution until the certificate of authentication hereon shall have been signed by an authorized officer of the Registrar. Except as otherwise provided in the Note Resolution in the event of a Determination of Taxability, this Note shall bear interest at the Interest Rate. Interest shall only be payable on June 1, 1994, and each June i and December 1 thereafter until the outstanding principal of the Notes is paid on the Maturity Date or earlier optional prepayment (each a "Payment Date"). The principal of and interest on the Notes shall be secured solely by and payable from the Pledged Revenues (am defined below). #Original Resolution" shall mean Resolution No. 98-91, adopted by the City Commismion on December 3, 1991, as amended and supplemented by Resolution No. 18-92, adopted by the City Commis- sion on January 23, 1992, authorizing the issuance of the 1992 Bonds. "Pledged. Revenues" shall mean all moneys on deposit in the Debt Service Fund (created and established under the Note Resolution) 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 to the prior lien on such moneys for the payment of the Outstanding Bonds. C:%DATA\D~KAYXMATT.~J~O.V~ 9. 6 Res. NO · 98- 93 "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 Note 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 Note, 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, together with interest accrued and unpaid to the prepayment date on the principal amount then being paid; and the amount of principal and interest then due and payable shall be paid (i) in case the entire unpaid balance of the principal of this Note is to be paid, upon presentation and surrender of the Note 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 Note is to be paid, upon presentation of such Note 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 and interest on the Note then paid or for issuance of a replacement Note in the principal amount not redeemed. Notwithstanding the provisions of clause (ii) above, if all of the Notes are.registered in the name of the Bank, a partial prepayment may be effected by payment to the Bank of the principal and interest then due without surrender of this Note; such payment to be evidenced by notation by the Bank and the City on the marking grid attached hereto which may be separated therefrom for such purpose. If, on the prepayment date, funds for the payment of the principal amount to be prepaid, together with interest to the prepayment date on such principal amount, shall have been provided to the Paying Agent, as above provided, then from and after the prepayment date interest on such principal amount of this Note c:~^~^~u~.~.~ 27 Res. No. 98-93 shall cease to accrue. If said funds shall not have been so paid on the prepayment date, the principal amount of the Note shall continue to bear interest until payment thereof at the Interest Rate provided for herein. This Note 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. No Holder of this Note 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 Note or the interest thereon. The terms and provisions of the Note Resolution are incorporated in this Note as though such terms and provisions have been set out in full herein. THE LIEN OF THE NOTES ON THE PROCEEDS OF THE UTILITIES TAX SHALL BE JUNIOR AND SUBORDINATE, AS TO THE LIEN OF THE OUTSTANDINg BONDS ON THE UTILITIES TAX PROCEEDS AND IN ALL OTHER RESPECTS TO THE PLEDGE AND LIEN GRANTED TO THE OUTSTANDINg BONDS. This Note is issued on parity in all respects with the City's outstanding Utilities Tax Revenue Note, Subordinate Series 1992, issued pursuant to the Prior Resolution. IN WITNESS WHEREOF, the City of Delray Beach, Florida, has caused this Note 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 Note 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 28 Res. No. 98-93 FORM OF CERTIFICATE OF AUTHENTICATION Date of Authentication: October , 1993 This Note is the Note delivered pursuant to the within mentioned Resolution. CITY OF DELRAY BEACH Finance Department, as Registrar By: Authorized Officer C:~I)ATA'd)F'I"I~YIMAIT'~kI~'~O'VI 29 Res. No. 98-93 FOR VALUE RECEIVED the undersigned sells, assigns and transfers unto (please print or typewrite name, address and tax identification number of assignee) the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints Attorney to transfer the within Note 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 Note in ev- ery particular, without altera- tion or enlargement, or any change whatever. C:~ATA~E{-RAYXI~A~.~U. qO.~ 30 Res. No. 98-93 [This Grid may be separated from the Note for purposes of Nota- tion. ] DRAW-DOWN GRID [Outstanding Principal Amount Not to Exceed $610,000] Principal Amount Initials A~ount of Note of of Outstanding Noteholder Date Draw After Draw and City C:~DATAUB~,I.~AY~MA'FT.]~iF.~O.V2 31 Res. No. 9 8- 9 3 [This Grid may be separated from the Note for purposes of Nota- tion. ] REPAYMENT GRID [Outstanding Principal Amount Not to Exceed $610,000] · Principal Amount of Note Initials Outstanding of Amount of after Noteholder pate ~eDavment Repayment a~ ~itv C:~DATA~i)E'LRAYX'%~1'r'36~{tF"~O'V2 32 Res. No. 98-93 EXHIBIT B AeRE~MENT REGARDINQ LINE OF CREDIT Dated as of October 1, 1993 WHBRBA$, SunBank/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 $610,000 under which the City may, from time to time, make drawings; and WHBREAI, the City Commission of the City of Delray Beach, Florida, on October 12, 1993, adopted Resolution No. 98-93 (the "Note Resolution") authorizing the issuance of not exceeding $610,000 principal amount City of Delray Beach, Florida, Utilities Tax Revenue Notes, Subordinate Series 1993, which Utilities Tax Revenue Notes, Subordinate Series 1993, shall represent the City's obligation to reimburse the Bank for drawings made under the Line of Credit; and WHBRBAS, the City and the Bank find it necessary to enter into this Agreement, to acknowledge the terms and provisions of the Note Resolution adopted by the City and the extension of the Line of Credit by the Bank. NOW THBRBFORE, the City a~d t~e Benk hereby agree as followss 1. That the Bank shall make immediately available to the City, pursuant to the terms and provisions of the Note Resolution, the Line cf Credit in an aggregate principal amount of not exceeding $610,000 which shall be available to the City in one or more drawings prior to . 2. That the Line of Credit shall expire on , and the outstanding principal amount of any drawings, including interest thereon, shall become due and payable on such date unless all of such drawings have been prepaid prior to such date in accordance with the terms and provisions of the Note Resolution. 3. That the Bank hereby accepts the terms and conditions set forth in the Note Resolution applicable to the Line of Credit. 8UNBANK/8OUTH FLORIDA, N.A. (SEAL) ~¥: Title: Date: ATTESTs CITY OP DELR~¥ BRACH, FLORIDA By:,., Acting City Clerk of the Title: Mayor City of Delray Beach, Florida Date: MEMORANDUM TO: Mayor and City Commission FROM: David T. Harden r~ City Manager ~ SUBJECT: Resolution #98-93 authorizing the issuance not to exceed $610,000 in aggregate principal amount of Utility Tax Notes, Subordinate Series 1993 DATE: October 7, 1993 The purpose of this Resolution is to authorize $610,000 pursuant to a current line of credit with Sun Bank/South Florida, N.A. for the purpose of providing short term financing of the Tennis Center Phase II not to exceed $400,000, Pompey Park Improvements not to exceed $200,000 and issuance costs not to exceed $10,000. Recommend authorization of Resolution #98-93. DTH/rso/slh cc: Joseph M. Safford, Director of Finance Rebecca S. O'Connor, Treasurer