Res 108-93 RESOLUTION NO. L08-93
A RESOLUTION OF THE CITY COIOfISSION OF THE CITY OF DELR~Y
BE~CH, FLORIDAv ~ENDING ~ RESTATING RESOLUTION NO. 98-93
ENTITLED "A RESOLUTION OF THE CITY COl, fl, fISSION OF THE CITY OF
DELI~Y BF~CH, FLORIDAv AUTHORIZING THE ISSUANCE OF NOT TO
EXCEED $6L0~000 IN AGGREGATE PRINCIPAL~OU17TOF UTILITIES
REVENUE NOTES, 8UBORDIITATE 8ERIES L993, OF THE CITY OF DELI~Y
BF.~CH, FLORIDA~ PURSU~t~IT TO A LINE OF CREDIT Y.~DE AVAII. J~LE
THROUGH SUN BI~il~/SOUTH FLORIDA~ N.A.~ FOR THE PURPOSE OF
PROVIDING SHORT TERI~FIN~WCING FORT HE COSTS OF TENNIS COURTS
~"d~TDREL~TED FACILITIES, THE REH]~ILITATION~3~TDRECONSTRUCTION
OF POHPEY P~RK POOL ~ TO PAY THE COSTS OF ISSU~NCE THEREOF;
PROVIDING FOR THE TERY~ ~ PAYY. ENT OF SAID UTILITIES
REVENUE NOTES, SUBORDIITATE SERIES ~993v ~ THE RIGHTS,
REMEDIES ~ SECURITY OF THE OWNERS THEREOF; Y.~KING CERTAIN
COVEN~NTS RELATING TO THE ISSUANCE OF SAID UTILITIES TA~
REVENUE NOTES~ SUBORDINATE SERIES ~993; AUTHORIZING THE PROPER
OFFICERS OF THE CITY TO DO ~J.,L OTHER~THINGS DEEHED NECESSARY
OR ADVIS~%BLE IN CONNECTION WITH THE ISSU~%NCE OF 8AID NOTES;
~ PROVIDING FOR ~ EFFECTIVE DATE"; TO PROVIDE FOR THE
AUTHORIZATION TO ISSUE NOT TO EXCEED $8Z0,000 IN AGGREGATE
PRINCIP~L ~"d~OUNT OF UTILITIES TH REVENUE NOTES~ SUBORDINATE
SERIES L993; ]~qD PROVIDING FOR~%I 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, pursuant to the terms
and provisions of Resolution No. 98-93, adopted by the City
Commission on October 12, 1993 (the "Original Resolution"), that it
is necessary to authorize the issuance of not to exceed $610,000
(the "Original Authorized Amount") 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;
WHHREAS, 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);
WHEREAS, the Notes will be issued on parity with the
City's outstanding Utilities tax Revenue Notes, Subordinate Series
1992 (herein, the "Prior Notes");
C:~ATA~Y~vtAW.36%R~9(~I.V3 Res. No. 108-93
WHEREAS, 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
WHEREAS, the Commission has determined it is necessary to
amend and restate the Original Resolution to increase the Original
Authorized Amount by $200,000, such additional authorized amount to
be used for the phase II Delray Beach Tennis Center project; and
WHEREAS, pursuant to that certain Agreement Regarding
Line of Credit, dated as of December 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 $810,000 (the "Line
of Credit").
NOW, THEREFORE, be it resolved by the City Commission of
the City of Delray Beach, Florida, as follows:
Res. No. 108-93
~RTICLE I
STATUTORY AUTHORITY~ FINDINGS ~ DEFINITIONS
SECTION 1.1. AUTHORITY FOR THIS RESOLUTION. This
Resolution is adopted pursuant to the provisions of the Charter of
the City of Delray Beach, Florida, as amended and supplemented, the
Florida Constitution, Chapter 166, Florida Statutes, as amended and
supplemented, and other applicable provisions of law (collectively,
the "Act").
SECTION 1.2. FINDINGS. It is hereby ascertained,
determined and declared:
A. That the City hereby authorizes the following capital
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 $600,000;
(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).
Res. No. 108-93
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 financial 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.
C:%DATA\DELRAY~MA'I'r.36%~:~O-I.V3 4 Res. No. 108-93
SECTION 1.3. DEFINITIONS. That, in addition to terms
defined elsewhere in this Resolution, the following terms shall
have the following meanings unless the context otherwise clearly
requires:
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 loan 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:~DATA~DELRAY~MATT.36%q~SO-I.V3 5 Res. No. 108-93
(f) written repurchase agreements with any bank,
savings institution or trust company which is insured by
the FDIC or with any broker dealer with retail customers
which falls under Securities Investors Protection
Corporation protection, provided that such repurchase
agreements are fully secured by collateral security
described in clause (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 the City.
H. "Code" shall mean the Internal Revenue Code of 1986,
the applicable Treasury Regulations promulgated thereunder and any
administrative or judicial interpretations of the same published in
a form on which the City may rely as a matter of law.
I. "Debt Service Fund" shall mean the Delray Beach
Subordinate Note Debt Service Fund, created and established
C:~ATA\DELRAY%MA~.36%~.~O-I.~ 6 Res. No. 108-93
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 Banks, Federal Home Loan Mortgage Corporation
(including participation certificates), Federal Financing
Banks, or any other agency or instrumentality of the
United States of America created by an act of Congress
provided that the obligations of such agency or 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
Res. No. 108-93
(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 $810,000
aggregate principal amount of Utilities Tax Revenue Notes,
Subordinate Series 1993, authorized by this 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 i and December 1
commencing June 1, 1994, 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:\DATA~YlN~A~.36~I.~ 8 Res. No. 108-93
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 SunBanks, 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 ps 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:\DATAXI)~LRAYLW4ATT.~(~I.V] 9 Res. No. 108-93
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.
SECTION ~.4. RESOLUTION CONSTITUTES CONTRACT. 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.
CflDATAU)~LRAY~AiAIT.36UU~q(~/.V] 10 Res. No. 108-93
ARTICLE II
&UTHORIZ~TION~ TEllS, EXECUTION ~D RE~ISTI:t~TION OF NOTES
~ECTION 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 Eight
Hundred Ten Thousand Dollars ($810,000) 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:~^?^~ta~.36~m~i.v3 11 Res. No. 108-93
(i) in case the entire unpaid balance of the principal of the Notes
is to be paid, 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.
SECTION 2.3. EXECUTION OF THE 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:\DATA~BLRAY1MA~.~%~(~i.~ 12 Res. No. 108-93
The certificate of authentication of the Registrar upon the Notes
executed on 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.
SECTION 2.4. NEGOTIABILITY, REGISTRATION AND 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. All such payments so made to any such Owner or upon
his/her order shall be valid and effectual to satisfy and discharge
the liability upon such 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:~ATA~ELRAY1MA~.36~-~ESO-I.~ 13 Res. No. 108-93
with the City and the other executed certificate shall be retained
by the Registrar.
SECTION 2.5. 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.
SECTION 2.6. CONDITION8 FOR DRAWING UNDER THE LINE OF
CREDIT AND 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 that 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:U)^T^~D~La~YU~r.~um~O-~.¥~ 14 Res. No. 108-93
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 this 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.
SECTION 2.8. INTEREST RJkTEADJUSTMENT. 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:~ATA\D,~LRAY~WA~.~XR~_..qO-I.V] 15 Res. No. 108-93
In the case of (i) above, no Determination of Taxability
shall be deemed to occur unless the City has been given timely
written notice by the Bank of such determination by the Internal
Revenue Service and 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 Determination 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:~DATA\DELRAYB4ATT.36%~(~I.V3 16 Res. No. 108-93
ARTICLE III
COVENANTS, FUNDS ~ ~PPLICATION 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.
SECTION 3.2. NOTES JUNIOR ANDSUBORDINATE 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.
SECTION 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. COVENANTS 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:
&. Tax Covenants Relating to the Internal Revenue Co4e
of 1986, 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 agrees to continually comply with the
provisions of the Tax Certificate 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,
which action or omission, if reasonably expected on the date of
initial issuance and delivery of the Notes, would cause any of the
C:\DATA~F. LRAYXlviA~.~6XItBSO-I.V3 17 Res. No. 108-93
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 ServiceFund. 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
deposit in the Debt Service Fund shall remain on deposit in the
C:\DATAU)ELItA/~uklA'FI"~t'u-'SO'{'V]' 18 Res. No. 108-93
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.
E. Enforcement of Collections. The City will diligently
enforce and collect the Utilities Tax, will take steps, actions and
proceedings for the enforcement and collection of such Utilities
Tax as shall become delinquent to the full extent permitted or
authorized by law, and will maintain accurate records with respect
thereof.
F. Budget and Other Financial Information. The City
shall demonstrate in each annual budget that there are sufficient
proceeds of the Utilities Tax to pay the principal of and interest
on the 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.
SECTION 3.5. 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,
C:~ATA~P. LIt~Yllkt~.36~It~.~O-{.V~ 19 Res. No. 108-93
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 the 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 3.7. 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
other 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
payment of the Notes and all interest thereon) moneys
which, when invested in Defeasance Obligations, will
provide moneys which shall be sufficient to pay the Notes
and, all interest thereon as the same shall become due on
C:~ATA\D~Y%MA~.36%RES~I.~ 20 Res. No. 108-93
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 to the 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.
SECTION 3.8. ADDITIONtkLOBLIGATIONS. The City covenants
with the Noteholders that as long as the Notes issued under this
Resolution are outstanding, it will not issue any bari 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 Utilities Tax Debt, as evidenced by a certificate
executed by the Finance Director of the City and as may
be adjusted, as hereinafter provided, will be equal to
one hundred twenty-five per centum (125%) of the maximum
annual debt service on (1) the 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 $810,000 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
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
C:~ATA~J.,{~Y~,%~.~XI~.~.I.V{ 21 Res. No. 108-93
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 Buyer as of the last week of the
month preceding the date of issuance of such variable or
adjustable rate Utilities Tax Debt, or if that index is
no longer published, the interest rate as of the last
week of such month, as published in an index that is
deemed to be substantially equivalent. If the City,
prior to the issuance of the proposed Utilities Tax Debt
shall have, by amendment or supplement to the Utilities
Tax Ordinance, increased the Utilities Tax to be 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.
C:%DATA~DF_.LRAYB/IATT.~6~.F...~}-I.V3 22 Res. No. 108-93
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. ~DDITIONAL 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.
C:~A?^~aA~U~ATr.~I.V3 23 Res. No. 108-93
SECTION 4.5. EFFECTIVE DATE. This Resolution shall be
effective immediately upon its adoption.
Passed and adopted in regular session on this 7th day of
December, 1993.
Attest: ~~
May
City Clerk
The foregoing resolution and the form of Note therein
contained are hereby approved by me as to form, language and
execution this 7th day of December, 1993.
~~City Attorney
C:%DATA\DELRAY%MATT.36%RER~I.V3 2 4 Re s. No. 108- 9 3
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 , 1993
Registered Owner: Sun Bank/South Florida~ N.A.
Principal Amount: Not to Exceed $810,000
KNOW ALL MEN BY THESE PRESENTS, that the City of Delray
Beach (the "City") in Palm Beach County, Florida, for value
received, hereby promises to pay from the sources herein mentioned,
to the Registered Owner specified above or registered assigns on
the Maturity Date specified above, 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 $810,000 or
such lesser 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 $810,000 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:~ATA~ELRAYXMA~.~,SO-I.~ 25 Res. No. 108-93
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,
as amended and restated on December 7, 1993, by Resolution No. 108-
93 (collectively, "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 1 and December i 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 (as defined below).
"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 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:~ATA~YXIkt~.36X.D~F...qO-I.V3 26 Res. No. 108-93
"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:\DATA~ELRAY1MA~.~XI~E~)-I.V3 27 Res. No. 108-93
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
c:m^?^~ma~.~u~l.~ 28 Res. No. 108-93
FORM OF CERTIFICATE OF AUTHENTICATION
Date of Authentication: , 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:~DATAZDELRAY%MATr.~U~S(kI.V] 29 Res. No. 108-93
ASSIGNMENT
FOR VALUE RECEIVED the undersigned sells, assigns and
transfers unto
(please print or typewrite name, address
and tax identification number of assignee)
the within 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:~DATA~I)~YX'k{A'FI"~%~'BSO'I'V3 30 Res. No. 108-93
[This Grid may be separated from the Note for purposes of Nota-
tion.]
DRAW-DOWN GRID
[Outstanding Principal Amount Not to Exceed $810,000]
Principal
Amount Initials
Amount of Note of
of Outstanding Noteholder
Date Draw After Draw and City
C:~I)ATAZD'u-'IJ~%"Iq{vlATT'~%~'~"~O'I'V{ 31 Res. No. 108-93
[This Grid may be separated from the Note for purposes of Nota-
tion. ]
REPAYMENT GRID
[Outstanding Principal Amount Not to Exceed $810,000]
Principal
Amount
of Note Initials
Outstanding of
Amount of after Noteholder
Date Repayment Repayment and City
C:U)ATA~I)P. LRAY%%{A'I'I'.36%~]O-I.V~ 32 Res. No. 108-93
EXHIBIT B
AQREEMENT REQ~RDIN~ LINE OF CREDIT
Dated as of 1, 1993
WHEREAS, 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 $810,000 under which the City
may, from time to time, make drawings; and
WHEREAS, the city Commission of the City of Delray Beach,
Florida, on October 12, 1993, adopted Resolution No. 98-93, as
amended and restated by Resolution No. 108-93, adopted on
December 7, 1993 (collectively, the "Note Resolution") authorizing
the issuance of not exceeding $810,000 ~rincipal 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
WHEREAS, 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.
NON THEREFORE, the City and the Bank hereby agree as
follows:
1. That the Bank shall make immediately available to the
City, pursuant to the terms and provisions of the Note Resolution,
the Line of Credit in an aggregate principal amount of not
exceeding $810,000 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.
.VI
3. That the Bank hereby accepts the terms and conditions
set forth in the Note Resolution applicable to the Line of Credit.
SUNBANK/SOUTH FLORIDA, N.A.
(SEAL) By:
Title:
Date:
ATTEST: CITY OF DELRAY BEACH, FLORIDA
By:
Acting City Clerk of the Title: Mayor
City of Delray Beach, Florida Date:
C: H)A TA~D ~.LRAY'~%{A'I'I'.~I..O~3-A~dD. V !
/%OREE~ENT ~EOARDINg LINE OF CREDIT
Dated as of December 1, 1993
NHEREAS, 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 $810,000 under which the City
may, from time to time, make drawings; and
NI~EREAS, the City Commission of the City of Delray Beach,
Florida, on October 12, 1993, adopted Resolution No. 98-93, as
amended and restated by Resolution No. 108-93, adopted on
December 7, 1993 (collectively, the "Note Resolution") authorizing
the issuance of not exceeding $810,000 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
WHEREAS, 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 THEREFORE, the City and the Bank hereby agree as
follows:
1. That the Bank shall make immediately available to the
City, pursuant to the terms and provisions of the Note Resolution,
the Line of Credit in an aggregate principal amount of not
exceeding $810,000 which shall be available to the City in one or
more drawings prior to December 1, 1994.
2. That the Line of Credit shall expire on December 1,
1994, 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.
Date: February 7, 1994
ATTEST: CITY OF DE~RAY BEACH, FLORIDA
city Clerk of t~ City / Title: MaWr
of Delray Beach, Florida Date: February 7, 1994