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Res 98-91 R~SOIIITION NO. 98-91 ¢ A RESOI/1TION OF TH~ CITY CONNISSIC~ OF T~E CITY OF Z~LRAY BEACH, FLORIDA, AUTHORIZING THE ISSIIANCE PIE~q TINE TO OF CITY OF DELRAY BEACH, FLORIDA UTI~~ TAX REVENUE BONDS FOR PURPOSE OF FINANCING AND REFINANCING ~CIPAL AUTHORIZING THE ~ OF ~ FIRST ~ OF NOT I~ IN ~IT~ ~ ~ OF $20,000,000 ~ OOTBTANDING U?I?.ITIES TAX R~-V~.NUI~ C~TIFICAT~S, BE~T~B 1957, ITB OOTSTAJqDING OTI~-ITI~'-B TAX ~'B%~IFIC~.B, ~I~l; 19787 ITS O0'~J~~ OTI~IT]~ TAX ~ NO'II~, ~]B01~~ S]~3]~ 1989, ~ ~0 ~ OR & PORTION OF ~ ~OST OF ~.~"qDSC*%PING, ~S~ Of ~O~Y A~ISI~ION ~D ~N~~, ~ ~ O~ ~~ION ~A~I~~,_ ~ ~5~ O~ ~~ ~/~ Vk~ING ~I~~ ~I~ ~~, ~ ~ ~ O~ VA~NG ~ ~I~ING ~-~. O~ k ~ION Of O~ VIDING ~ EF~~ ~. ~, the City Commission (the "Co~ission") of the City of Delray Beach, Florida (~e "City") did on Nove~er 26, 1962, adopt Resolution No. 1424, entitled: A RESO~TION A~O~ZI~ ISSUANCE OF $1,100,000 UTILITIES TAX REVENUE CERTIFICATES, SERIES 1962, OF ~E CITY OF DE~Y BEA~, ~DING ~R ~ PA~ ~D SA~ OF SUCH CERTIFICATES, ENTERING I}~O CERTAIN AG~~S IN ~T CO~E~ ~D DEC~NG ~ ~~ (as ~d~ and supplemented, the "1962 Resolution"); and -1- Res. No, 98-91 , MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS F~OM: ~2ITY MANAGER SUBJECT: AGENDA ITEM # ~ - MEETING OF DECEMBER 3, 1991 RESOLUTION NO. 98-91 DATE: NOVEMBER 27, 1991 Resolution No. 98-91 authorizes the issuance, from time to time, of City of Delray Beach, Florida, Utilities Tax Revenue Bonds for the purpose of financing and refinancing municipal capital projects or improvements permitted under applicable law; and, more specifically, authorizes the issuance of Utilities Tax Revenue Refunding and Improvement Bonds, Series 1991, in the aggregate principal amount of not exceeding $~,000,000 for the following purposes: ~O (1) Defeasing and refunding the City's prior obligations (i.e., Utilities Tax Revenue Certificates, Series 1967; Utilities Tax Revenue Certificates, Series 1978; Utilities Tax Revenue Bonds, Series 1987; and Utilities Tax Revenue Notes, Subordinate Series 1989); (2) Financing all or a portion of the costs of the 1991 Improvements (i.e., landscaping, irrigation, planting and curbing of certain roadways, renovation and improvements to certain city-owned facilities, roadway acquisition and construction, the acquisition and construction of certain park and recreational facilities, the acquisition and/or renovation of city-owned tennis facilities, and the renovation and rehabilitation of all or a portion of Old School Square, and all engineering and other incidental costs relating thereto); and (3) Paying the costs of issuing the bonds. Recommend approval of Resolution No. 98-91 based upon findings that it is necessary and essential to construct and acquire the 1991 Improvements (enumerated above) in order to preserve and promote the safety and welfare of the citizens of the City, and that it is necessary and desirable and in the best financial and economic interest of the City to defease and refund the Prior Obligations as hereinabove stated. R-98-91 DELRA¥ BEACH, FLOI~I~ Utilities Tax Revenue Bonds Utilities Tax Revenue Bond Resolution Adopted December 3, 1991 TABLE OF CO~ ' Pa~e ARTICLE I STATUTORY AUTHORITY; FINDINGS and DEFINITIONS SECTION 1 AUTHORITY OF THIS RESOLUTION .................... 4 SECTION 2 FINDINGS ........................................ 4 SECTION 3 D~.FINITIONS ...................................... 6 SECTION 4 RESOLUTION CONSTITUTES A CONTRACT .............. 20 ARTICLE II AUTHORIZATION, TERMS, EXECUTION AND REGISTRATION OF BONDS SECTION I AUTHORIZATION OF BONDS ......................... 21 SECTION 2 DESCRIPTION OF BONDS ........................... 22 SECTION 3 REDEMPTION PROVISIONS .......................... 24 SECTION 4 EXECUTION OF BONDS ............................. 25 SECTION 5 NEGOTIABILITY, REGISTRATION AND CANCELLATION ................................... 26 SECTION 6 BONDS MUTILATED, DESTROYED, STOLEN OR LOST ........................................ 29 SECTION 7 PREPARATION OF DEFINITIVE BONDS; TEMPORARY BONDS ................................ 30 SECTION 8 FORMS OF BONDS ................................. 31 SECTION 9 BOOK-ENTRY SYSTEM .............................. 51 ARTICLE III COVENANTS, FUNDS AND APPLICATION THEREOF SECTION 1 BONDS NOT TO BE INDEBTEDNESS OF THE CITY ........................................... 53 SECTION 2 BONDS SECURED BY PLEDGE OF UTILITIES TAX PROCEEDS ................................... 53 SECTION 3 APPLICATION OF 1991 BOND PROCEEDS .............. 54 SECTION 4 COVENANTS OF THE CITY .......................... 58 ARTICLE IV MISCELLANEOUS PROVISIONS SECTION 1 MODIFICATION OR AMENDMENT ...................... 84 -1- Res. No. 98-91 TABLE OF CONTENTS, Continue~ ; Paqe SECTION 2 SEVERABILITY OF INVALID PROVISIONS ............. 86 SECTION 3 SALE OF BONDS .................................. 86 SECTION 4 BOND ANTICIPATION NOTES ........................ 86 SECTION 5 REPEALER ....................................... 87 SECTION 6 CREDIT FACILITY ISSUER; DEFAULT ................ 87 SECTION 7 VALIDATION ..................................... 87 -2- Res. No. 98-91 NHEREA~, l~ursuant to the 1962 Resolution and resolutions supplemented there'to, the City has heretofore issued its U~ilities Tax Revenue Certificates, Series 1967, in the outstandir~ principal amount of $100,000, (the "1967 Bonds"), its Utilities Tax Revenue Certificates, Series 1978, in the outstanding principal amount of $3,080,000, (the "1978 Bonds"), its Utilities Tax Revenue Bonds, Series 1987, in the outstanding principal amount of $9,345,000, (the "1987 Bonds") and its Utilities Tax Revenue Notes, Subordinate Series 19.89, in the outstanding principal amount of $1,019,844, (the "1989 Notes"); and N~F~N~A~, the 1967 Bonds, the 1978 Bonds, the 1987 Bonds and the 1989 Notes are herein collectively referred to as the "Prior Obligations"; and Ww~%S, the Commission hereby determines that it is nec- essary and desirable and in the best financial and economic interest of the city to defease and refund the Prior Obligations; and NHEREAS, the Commission hereby finds it to be necessary and in the best interest of the City to provide landscaping, irriga- tion, planting and curbing of certain roadways, to provide for the renovation, construction and equipping of City-owned facilities, to provide for roadway acquisition and construction, to provide for the acquisition, construction and equipping of park and recreational -2- Res. No. 98-91 facilities, to provide for the acquisition and/or renovation of City.-owned tennis Yacilities and the renovation and rehabilitation of all or a portion of Old School Square, and all engineering and other incidental costs relating thereto (herein the m1991 Improvements"); and WHEREAS, the Commission hereby determines to issue its Utilities Tax Revenue Refunding and Improvement Bonds, Series 1991, in the aggregate principal amount of not exceeding $20,000,000 (the "1991 Bonds") pursuant to the Act (as herein defined) and the terms and provisions of this Resolution and subsequent proceedings of the Commission for the purpose of (i) defeasing and refunding the Prior Obligations; (ii) to finance all or a portion of the costs of the 1991 Improvements, and (iii) to pay the costs of issuing the Bonds; and WHEREAS, the Commission hereby finds it to be in best eco- nomic interest of the City to issue, from time to time, additional Series of Bonds under this Resolution for the purpose of financing and refinancing other municipal capital projects or improvements as shall be determined necessary by subsequent proceedings of the Commission; NOW, THEREFORE, BE IT RESOLVED BY THE CITY CO~l~I~I0~ OF THE CITY OF DELRAY BEACH, FLORIDA, AS -3- Res. No. 98-91 ARTICLE I STATUTORY AUT~~; FINDINGS AND DEFINITIONS SECTION 1. AUTHORITY OF THIS RESOLUTI(~. This Resolution is adopted pursuant to the provisions of the Charter of the City of Delray Beach, Florida (the "City"), 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 2. FINDINGS. It is hereby ascertained, determined and declared: A. That the recitals hereinbefore mentioned are hereby adopted. B. That all terms not otherwise defined in the recitals or in this Section 2 shall have the meaning ascribed to such terms in Section 3 of this Article I. C. That the City adopts this Resolution for the purpose of providing the authorization for the City to issue Bonds, from time to time, for the purpose of financing and refinancing capital projects and improvements permitted under the Act and to pledge the Utilities Tax procccda for the payment thereof in the manner provided herein. D. That the City hereby authorizes the defeasance and refunding of the Prior Obligations. -4- Res. No. 98-91 E. That for the defeasance and refunding of the Prior Obligations, the City shall deposit a portion of the proceeds derived from the sale of the 1991 Bonds in an escrow deposit trust fund, which together with other available funds, if any, and the income and earnings derived from the investment thereof shall be sufficient to pay and refund the Prior Obligations as the same become due and pay~ able or are redeemed prior to maturity in accordance with the pro- ceedings which authorized their issuance, all as provided in the Escrow Deposit Agreement. F. That it is necessary and essential to construct and acquire the 1991 Improvements in order to preserve and promote the safety and welfare of the citizens of the City. G. That the cost of the 1991 Improvements, financed with a portion of the proceeds of the 1991 Bonds and the cost of defeasing and refunding the Prior Obligations, financed with a portion of the proceeds of the 1991 Bonds, shall be deemed to include the cost of construction and improvements of such 1991 Improvements, the cost of real estate, including easements and other interests therein relating to such 1991 Improvements, or any other property real or personal, necessary therefor; administrative expenses; reserve or other funds created and established pursuant to this Resolution; discount on the sale of the Bonds, if any; engineering and legal expenses; expenses for fiscal agents or financial services; expenses for estimates of costs and of Utilities Tax proceeds; expenses for plans, specifications and surveys relating to such 1991 Improvements; and -5- Res. No. 98-91 such other expenses as may be necessary or incidental to the 1991 Improvements:and the cost of defeasing and refunding'the Prior Obligations, and the issuance of the 1991 Bonds herein authorized. H. That the principal of and interest on all Bonds issued under this Resolution and all of the reserve and other payments pro- vided for in this Resolution will be paid solely from Utilities Tax proceeds deposited in the Sinking Fund and the ad valorem taxing power of the City will never be necessary or authorized to pay the principal of and interest on the Bonds, or to make any of the reserve or other payments provided for in this Resolution, and the Bonds issued pursuant to this Resolution shall not constitute a lien upon any other property whatsoever of or in the City. SECTION 3. DEFINITIONS. That, as used in this Resolution and in addition to the terms herein defined above, the following terms shall have the following meanings unless the text otherwise expressly requires. A. "ACCRETED VALUE" shall mean, as of any date of compu- tation with respect to any Capital Appreciation Bond, the amount set forth as of such date in the supplemental resolution authorizing such Capital Appreciation Bond plus, with respect to matters related to the payment upon redemption or other payment of such Capital Appreciation Bond, if such date of computation shall not be an Interest Payment Date, a portion of the difference between the Accreted Value as of the immediately preceding Interest Payment Date (or the date of original issuance if the date of computation is prior -6- Res. No. 98-91 to the first Interest Payment Date succeeding the date of original issuance) and the 'Accreted Value as of the immediately succeeding Interest Payment Date, calculated based on the assumption that Accreted Value accrues during any semiannual period in equal daily amounts on the basis of a year of twelve 30-day months. B. "APPRECIATED VALUE" shall mean, (i) as of any date of computation with respect to any Capital Appreciation and Income Bonds up to the Interest Commencement Date set forth in subsequent proceedings of the Commission providing for the issuance of such Bonds, the amount set forth as of such date in the supplemental reso- lution authorizing such Capital Appreciation and Income Bonds plus, if such date of computation shall not be an Interest Payment Date, a portion of the difference between the Appreciated Value as of the immediately preceding Interest Payment Date (or the date of original issuance if the date of computation is prior to the first Interest Payment Date succeeding the date of original issuance) and the Appreciated Value as of the immediately succeeding Interest Payment Date calculated based upon an assumption that Appreciated Value accrues during any semiannual period in equal daily amounts on the basis of a year of twelve 30-day months and (ii) as of any date of computation on and after the Interest Commencement Date, the Appreciated Value on the Interest Commencement Date. C. "BENEFICIAL OWNER" shall mean, during any period the Bonds are registered under the Book-Entry System, any purchaser of a Bond and others who acquire a beneficial ownership interest in a Bond -7- Res. No. 98-91 held by the Securities Depository. In determining the Beneficial Owner of any Bond, the City, the Paying Agent, the Registrar and the Credit Facility Issuer, if any, may rely exclusively upon written representations made, and information given to the City, the Paying Agent, the Registrar or the Credit Facility Issuer, if any, by the Securities Depository or its Participants with respect to any Bond held by the Securities Depository in which a beneficial ownership interest is claimed. With respect to Replacement Bonds, the city, the Paying Agent, the Registrar and the Credit Facility Issuer, if any, shall consider' the owner of any such Replacement Bond as regis- tered on the registration books of the City maintained by the Registrar to be the Beneficial Owner thereof. D. "BOND COUNSEL" shall mean a firm or firms of nation- ally recognized attorneys-at-law selected by the City and experienced in the financing of capital projects for governmental units through the issuance of tax-exempt revenue bonds. E. "BOND INSURANCE POLICY" shall mean an insurance policy issued for the benefit of the Holders of any Bonds, pursuant to which the Bond Insurer shall be obligated to pay when due the principal of and interest on such Bonds to the extent of any defi- ciency in the amounts in the funds and accounts created under this Resolution, in the manner and in accordance with the terms provided in such Bond Insurance Policy. F. "BOND INSURER" shall mean the issuer of a Bond Insurance Policy and its successors. -8- Res. No. 98-91 G. "BONDHOLDER" OR "HOLDER OF BONDS" or any similar term, shall mean 4ny person who shall be the registered owner of any Bond or Bonds Outstanding under the terms of this ResolUtion. H. "BONDS" shall mean any bonds, notes or other evi- dences of indebtedness (other than subordinated debt issued under the terms and provisions of this Resolution unless the context, clearly requires otherwise), as the case may be, issued, authenticated and delivered under and pursuant to this Resolution, together with any Dari DaSSU additional bonds hereafter issued in the manner hereinaf- ter provided. I. "BOOK-ENTRY SYSTEM" shall mean the system under which the City may issue its Bonds and maintain the registration for such Bonds in book-entry form only. J. "BUSINESS DAY" shall mean any day other than a Saturday, Sunday, legal holiday or a day on which banking institu- tions in the State of Florida are authorized by law to close. K. "CAPITAL APPRECIATION BONDS" shall mean those Bonds issued under this Resolution as to which interest is compounded peri- odically on each of the applicable periodic dates designated for com- pounding and payable in an a~ount equal to the then current Accreted Value only at the maturity, earlier redemption or other payment date therefor, all as so designated by subsequent proceedings of the Commission relating to the issuance thereof, and which may be either Serial Bonds or Term Bonds. -9- Res. No. 98-91 L. "CAPITAL APPRECIATION AND INCOME BONDS" shall mean any Bonds issued ~nder this Resolution as to w~ich accruing interest is not paid prior to the Interest Commencement Date 'specified in the resolution authorizing such Bonds and the Appreciated Value for such Bonds is compounded periodically on certain designated dates prior to the Interest Commencement Date for such Capital Appreciation and Income Bonds, all as so designated by subsequent proceedings of the Commission relating to the issuance thereof, and which may .be either Serial Bonds or Term Bonds. M. "COMMISSION" shall mean the City Commission of the City of Delray Beach, Florida, the governing body of the City, and any successor body thereto. N. "CODE" shall mean the Internal Revenue Code of 1986, as amended, and all subsequent tax legislation duly enacted by the Congress of the United States to the extent applicable to any Series of Bonds issued pursuant to this Resolution. Each reference to a section of the Code herein shall be deemed to include, if applicable, final, temporary or proposed regulations, revenue rulings and proce- dures issued or amended with respect thereto, and any final, tempo- rary'or proposed regulations and revenue rulings and procedures, as promulgated under the Internal Revenue Code of 1954, as amended, by the Treasury Department or Internal Revenue Service of the United States. O. "CREDIT FACILITY" OF "CREDIT FACILITIES" shall mean either individually or collectively, as appropriate, any Bond -10- Res. No. 98-91 Insurance Policy, surety bond, letter of credit, line of credit, guaranty, or such ;other instrument or instruments that would enhance the credit of the Bonds. The term Credit Facility shall not mean a Reserve Account Credit Facility Substitute. P. "CREDIT FACILITY ISSUER" shall mean the provider of a Credit Facility. Q. "DEBT SERVICE RESERVE REQUIREMENT" shall mean, with respect to the 1991 Bonds, an amount equal to (i) the maximum amount of principal of and interest on such 1991 Bonds becoming due in any succeeding Fiscal Year or (ii) one hundred twenty-five percent (125%) of the average annual amount of principal of and interest on such 1991 Bonds becoming due in any succeeding Fiscal Year or (iii) ten percent (10%) of the net Proceeds (as such term is defined under the Code for such purpose) of such 1991 Bonds, whichever is the lesser. All or a portion of such Debt Service Reserve Requirement may be sat- isfied by obtaining .a Reserve Account Credit Facility with the requi- site coverage. The Debt Service Reserve Requirement, if any, for any other Series of Bonds shall be determined by subsequent proceedings of the Commission. R. "DEFEASANCE OBLIGATIONS" shall mean to the extent permitted by law and (other than with respect to the obligations described in clause (a) below) acceptable to the Credit Facility Issuer if the principal of and interest on the defeased Bonds is secured by a Credit Facility and such Credit Facility Issuer is not in default under such Credit Facility or, if not so secured by a -11- Res. No. 98-91 Credit Facility, acceptable to the Rating Agency or Agencies then rating the defeas~d Bonds: (a) U. S. Obligations which are not redeemable prior to maturity except by the holder thereof; (b) any bonds or other obligations of any state of the United States of America or of any agency, instrumentality or local governmental unit of any such state (i) which are not callable prior to maturity or as to which irrevocable instructions have been given to the trustee of such bonds or other obligations by the obligor to give due notice of redemption and to call such bonds for redemption on the date or dates specified in such instructions, (ii) which are secured as to principal and interest and redemption 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 pay- ment 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 instruc- tions 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 obligations of the character described in clause (a) hereof which have -12- Res. No. 98-91 been deposited in such fund along with any cash on deposit ~n such fund are sufficient to pay principal of and interest a~d redemption premium, if any, on the bonds or other obligations described in this clause (b) on the maturity date or dates thereof or on the redemption date or dates specified in the irrevocable instructions referred to in subclause (i) of this clause (b), as appropriate; and (c) Evidences of ownership of proportionate interests in future interest and/or principal payments on obligations described in (a) held by a bank or trust company as custodian. S. "ESCROW DEPOSIT AGREEMENT" shall mean the agreement by and between the City and any bank with trust powers or a trust company or a national banking association as escrow trustee, to be hereafter designated by subsequent proceedings of the Co~ission for the purpose of defeasing and refunding the Prior Obligations. T. "FISCAL YEAR" shall mean that period commencing on October 1 and continuing to and including the next succeeding September 30, or such other ahnual period as may be prescribed by law as the fiscal year of the City. U. "INTEREST COMMENCEMENT DATE" sha 1 1 mean , with respect to any particular Capital Appreciation and Income Bond, the date specified in the resolution providing for the issuance of such Bonds (which date must be prior to the maturity date for such Bonds) -13- Res. No. 98-91 after which interest accruing on such Bonds shall be payable semiannually (or it such times as the Commission shall de~ermine by subsequent proceedings), with the first such payment date being the applicable Interest Payment Date immediately succeeding such Interest Commencement Date. V. "INTEREST PAYMENT DATE" shall mean such dates of each Fiscal Year on which interest is payable on Bo~ds (other than Capital Appreciation Bonds a~d Capital Appreciation and Income Bonds prior to the applicable Interest Commencement Date) that are then Outstanding. W. "LIQUIDITY FACILITY" means any surety bond, letter of credit, line of credit, guaranty, or such other instrument that would provide liquidity to purchase Bonds that have been tendered, whether on an optional or mandatory basis, for purchase and not remarketed, and the provider of such Liquidity Facility enjoys the highest short-term rating at the time such Liquidity Facility is delivered to the City by any Rating Agency then rating the Bonds. X. "MAXIMUM ANNUAL DEBT SERVICE REQUIREMENT" shall mean, at any time, the maximum amount required to be deposited in the then current or any succeeding Fiscal Year into the Interest Account, Principal Account and Bond Redemption Account, as provided in this Resolution~ provided, however, that such amount shall be reduced by any estimated earnings or investment income from investments in any of the funds or accounts created and established under of this Resolution, which are required to be deposited in the Interest -14- Res. No. 98-91 Account by the terms of this Resolution. The amount of Term Bonds maturing in any F~scal Year which were subjec~ to mandatory redemp- tion, in part, prior to ~heir stated date of maturity by operation of the Bond Redemption Account shall not be included in determining the Maximum Annual Debt Service Requirement in their final Fiscal Year of maturity. Y. "MAXIMUM INTEREST RATE" shall mean, with respect to any particular Series of Variable Rate Bonds issued pursuant to the terms and provisions of this Resolution, the maximum rate of interest such Bonds may b~ar at any particular time., which ~ate shall not exceed the rate of interest allowed under State law and shall be determined for each Series of Variable Rate Bonds by subsequent pro- ceedings of the Commission. Z. "MOODY'S" shall mean Moody's Investors Service, Inc., a corporation organized and existing under the laws of the State of Delaware, its successors and their assigns, and, if such corporation shall be dissolved or liquidated or shall no longer perform the func- tions of a securities rating agency, "Moody's" shall be deemed to refer to any other nationally recognized securities rating agency designated by the City. AA. "1991 BONDS" shall mean the City of Delray Beach, Florida, Utilities Tax Revenue Refunding and Improvement Bonds, Series 1991, authorized to be issued pursuant to this Resolution in the aggregate initial principal amount of not exceeding $20,000,000 issued to pay the cost of paying and defeasing the Prior Obligations, -15- Res. No. 99-91 to finance all or a portion of the cost of the 1991 I~prove~_~t~s, to make certain deposits under the terms of this Resolution and to pay the costs of issuing the 1991 Bonds. BB. "OUTSTANDING" shall mean, when used with reference to the Bonds authorized under this Resolution, as of any particular date, all Bonds theretofore, or thereupon being, authenticated and delivered by the Registrar under this Resolution, except (i) Bonds theretofore or thereupon cancelled by the Registrar or surrendered to the Registrar for cancellation; (ii) Bonds with respect to which all liability of the City shall have been discharged in accordance with the terms and provisions of this Resolution; (iii) Bonds in lieu of or in substitution for which other Bonds shall have been authenti- cated and delivered by the Registrar pursuant to any provision of this Resolution; (iv) Bonds cancelled after purchase in the open market or because of payment at redemption prior to maturity; and (v) Bonds held or purchased by the City. CC. "PARTICIPANTS" shall mean brokers, dealers, banks and other financial institutions and other persons for whom, from time to time, the Securities Depository effects book-entry transfers and pledges of securities deposited with the Securities Depository. DD. "PAYING AGENT" shall mean a bank or trust company and any successor bank or trust company appointed by the City to act as Paying Agent for each Series of Bonds issued under the terms and provisions of this Resolution. -16- Res. No. 98-91 EE. "PERMITTED INVESTMENTS" shall mean (i) to the extent permitted by law U.S. Obligations and (ii) all other investments permitted under the laws of Florida and acceptable to the Credit Facility Issuer, if any. FF. "RATING AGENCY" OR "AGENCIES" shall mean Moody's and/or S&P, and/or such other nationally recognized securities rating agency, whichever shall have a rating then in effect with respect to the Bonds. · GG. "RECORD DATE" shall have the meaning set forth in Article II, Section 2 of this Resolution. HM. "REGISTRAR" shall mean a bank or'trust company and any successor bank or trust company appointed by the City to act as Registrar for all or any Series of Bonds issued under the terms and provisions of this Resolution. II. "REPLACEMENT BONDS" shall mean certificated Bonds, authenticated and delivered pursuant to the terms and provisions of this Resolution, when the City or the Securities Depository discon- tinues the Book-Entry System. JJ. "RESERVE ACCOUNT CREDIT FACILITY SUBSTITUTE" shall mean any one of the facilities described in Article III, Section 4.D.3 of this Resolution. KK. "RESOLUTION" shall mean this Utilities Tax Revenue Bond Resolution, as from time to time may be amended and supplemented in accordance with the terms hereof. -17- Res. No. 98-91 LL. "S&P" shall mean Standard & Poor's Corporation, a corporetion organiC, ed and existing under the laws of the State of New York, its successors and their assigns, and, if such corporation shall be dissolved or liquidated or shall no longer perform the func- tions of a securities rating agency, "S&P" shall be deemed to refer to any other nationally recognized securities rating agency desig- nated by the City. MM. "SECURITIES DEPOSITORY" shall mean, with respect to any Serie~ of Bonds to be issued in book entry form, The Depository Trust Company and its successors and assigns, or a successor clearing agency designated pursuant to the terms and provisions of this Resolution and its successors and assigns. NN. "SERIAL BONDS" shall mean the Bonds of a Series other than Term Bonds which shall be stated to mature annually. OO. "SERIES" shall mean all of the Bonds authenticated, issued and delivered at one time under and pursuant to the terms of this Resolution or any supplemental resolution authorizing such Bonds as a separate Series of Bonds, or any Bonds thereafter authenticated and delivered in lieu of or in substitution for such Bonds pursuant to the terms and provisions of this Resolution, regardless of varia- tions in maturity, interest rate or other provisions. PP. "TAX CERTIFICATE" shall mean the applicable Tax Certificate as to Arbitrage and Instructions as to Compliance with provisions of Section 103(a) of the Internal Revenue Code of 1986, as amended, executed by the City on the date of initial issuance and -18- Res. No. 98-91 delivery of any Series of Bonds, as such Tax Certificate may be amended from time' to time, and which serves as a source of guidance for achieving compliance with the Code. QQ. "TERM BONDS" shall mean the Bonds of an issue which shall be stated to mature on one date and for the amortization of which mandatory payments are required to be made into the Bond Redemption Account in the Sinking Fund. RR. "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 Commission, certificates which evidence ownership of the right to the payment of the principal of, or interest on, such obligations. SS. "UTILITIES TAX" shall mean the tax imposed by said 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 other than water, whether levied in the amounts prescribed by the Utilities Tax Ordinance or in any other amounts and whether imposed on the pur- chase of the same utilities services or any other or additional util- ities services, by amendment to the Utilities Tax Ordinance. TT. 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 -19- Res. No. 98-91 ordinance or other ordinance in lieu thereof as may hereafter be adopted. UU. NVARIABLE RATE BONDS" shall mean BOnds issued with a variable, adjustable, convertible or other similar rate which is not fixed in percentage for the entire term thereof at the date of issue. Words of the masculine gender shall be deemed and construed to include correlative words of the feminine and neuter'genders. Words importing the singular number shall include the plural number and vice versa unless the context shall otherwise indfcate. The word "person" shall include corporations, associations, natural persons and public bodies unless the context shall otherwise indicate. SECTION 4. RESOLUTI0~ CO~STI~OTE~ A C~TRACT. In considera- tion of the acceptance of the Bonds authorized to be issued hereunder by those who shall hold the same from time to time, this Resolution shall be deemed to be and shall constitute a contract between the City and such Bondholders, and the covenants and agreements herein set forth to be performed by the City shall be for the equal benefit, protection and security of the Holders of any and all of such Bonds, all Of which shall be of equal rank and without preference, priority, or distinction of any of the Bonds over any other thereof except as expressly provided therein and herein. -20- Res. No. 98-91 ~ICI~ II AUTHORIZATION, TERMS, EXECUTION AND REGISTRATION OF ~ SECTION 1. AIITHOILI~ATION OF IEtq[~. Subject and pursuant to the provisions of this Resolution, obligations of the City are hereby authorized to be issued from ti/ne to time for the purpose of financ- ing or refinancing capital projects and improvements as permitted under the Act and authorized by subsequent proceedings of the Commission. The Bonds authorized by this Resolution may be issued all at one time or in part, from time to time, as the Commission may in its discretion hereafter determine by subsequent resolution and, subject to the requirements set forth in Section 4.G of Article III of the this Resolution shall not be limited in amount, except as herein provided or as maybe limited by applicable law. Each Series of Bonds shall be designated as, and shall be distinguishable from the Bonds of all other Series by such means as the City deems appropriate. Subject and pursuant to the provisions of this Resolution, the City hereby authorizes the first Series of Bonds to be known as "city of Delray Beach, Florida, Utilities Tax Revenue Refunding and Improvement Bonds, Series 1991," in the initial aggregate principal amount of not exceeding TWENTY MILLION DOLLARS.($20,000,000) (the "1991 Bonds") for the purpose of (i) defeasing and refunding the Prior Obligations, (ii) financing all or a portion of the costs of the 1991 Improvements, (iii) funding a Debt Service Reserve Account -21- Res. No. 98-91 or providing the moneys to pay the premium on a Reserve Account Credit Facility Substitute, as shall be determined by subsequent pro- ceedings of the Commission, and (iv) paying the cost of issuing the 1991 Bonds including the cost of a Credit Facility, if any. SECTION 2. DESCRIPTION OF BONDS. The 1991 Bonds (and any other Series of Bonds unless determined otherwise by subsequent pro- ceedings of the Commission) shall be issued in registered form, shall be in the denomination of $5,000 each, or any integral multiple thereof; provided, however, (i) if such Bonds are Capital Appreciation Bonds then in $5,000 maturity amounts or in $5,000 multiples thereof and (ii) if such Bonds are Capital Appreciation and Income Bonds, such Bonds may be issued in any denomination, as long as their Appreciated Value at maturity shall be $5,000 or in any integral multiple of $5,000; and such Bonds shall mature on such dates in such years and in such amounts, all as provided by subse- quent proceedings of the Commission. Princ~pal'shall be payable at the designated corporate trust office of the applicable Paying Agent. The Bonds shall be numbered in such manner as may be pre- scribed by the Registrar. The Bonds shall bear interest at not exceeding the maximum rate or rates permitted by law, payable by check or draft made payable to the Holder of Bonds and mailed to the address of such Holder of Bonds, as such name and address shall appear on the registration books of the City maintained by the Registrar at the close of business on the fifteenth day of the calendau month preceding each Interest Fayment Date or the fifteenth -22- R~s. No. 98-91 day prior to the-date notice of redemption is given, whether or not such 15th day is ~.' Saturday, Sunday or holiday (herein the "Record Date"); provided, however, that payment of interest on tile Bonds may, at the option of any Holder of Bonds in an aggregate principal amount of at least $1,000,000 be transmitted by wire transfer to tile Holder to the bank account number on file with the applicable Paying Agent as of the Record Date. The Bonds authenticated prior to the first Interest Payment Date shall be dated and bear interest from the date determined, by subsequent proceedings of the Commission. The 1991 Bonds (and any other Series of Bonds unless determined otherwise by subsequent proceedings of the Commission) authenticated subsequent to the first Interest Payment Date shall bear interest from the next precedi~lg Interest Payment Date on which such interest has been paid, unless such Bond is registered on an Interest Payment Date or during the period between a Record Date to the next succeeding Interest Payment Date, then from such Interest Payment Date if interest is then paid, as the case may be; provided, however, that if and to the extent there is a default in the payment of the interest due on such Interest Payment Date, such defaulted interest shall be paid to the persons in whose name Bonds are registered on the registration books of the City maintained by the Registrar at the close of business on the fifteenth day prior to a subsequent Interest Payment Date estab- lished by notice mailed by the Registrar to the registered owner not less th~.n the tenth day precepting such subsequent Interest P~yment Date, such interest shall be payable semiannually on June 1 and -23- Res. No. 98-9]. December 1 of each year (unless the Commission shall by subsequent proceedings establish different Interest Payment Dates for any Series of Bonds), except that (i) interest on any Capital Appreciation Bonds shall be paid only at maturity or upon redemption prior to maturity in the amount determined by reference to the Accreted Value, and (ii) interest on a Capital Appreciation and Income Bond shall be pay- able semiannually on June 1 and December 1 of each year (unless the commission shall by subsequent proceedings establish different Interest Payment Dates for any Series of Bonds), but only after the Interest Commencement Date. The Bonds shall be payable, with respect to interest, prin- cipal and premium, if any, 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 Bonds issued hereunder may be Serial Bonds or Term Bonds and such Bonds may be Variable Rate Bonds, and such Bonds issued hereunder may be Capital Appreciation Bonds and Capital Appreciation and Income Bonds as determined by subsequent proceedings of the Commission. The payment of principal of and interest on the Bonds may, in addition to the Utilities Tax proceeds deposited in the Si~ing Fund, as herein provided, be secured by a Bond Insurance Policy or other Credit Facility, all as shall be determined by subsequent pro- ceedinqs of the Commission. -24- Res. No. 98-91 SECTION 3. R~D~TION PROVISIONS. The Bonds may be subject to redemption pridr to maturity at such times, at such redemption prices and upon such terms as shall be determined by subsequent pro- ceedings of the Commission. SECTION 4. EXECUTION OF BONDS. The Bonds shall be executed in the name of the City by the signature of the Mayor, or such other member of the Commission designated by subsequent proceedings of the CommisSion, and its official seal shall be affixed thereto or imprinted or reproduced thereon and attested by the City Clerk. The signatures of said Mayor, or such other member of the'Commission des- ignated by subsequent proceedings of the Commission, and the City Clerk on the Bonds may be manual or facsimile signatures. In case any one or more of the officers who shall have signed or sealed any of the Bonds shall cease to be such officer of the City before the Bonds. so signed and sealed shall have been actually sold and deliv- ered, such Bonds may nevertheless be sold and delivered as herein provided and may be issued as if the person who signed or sealed such Bonds had not ceased to hold such office. Any Bond may be signed and sealed on behalf of the City by such person who at the actual time of the execution of such Bond shall hold the proper office, although at the date such Bonds shall be actually delivered such person may not have held such office or may not have been so authorized. The Bonds shall bear thereon a certificate of authentica- tion, in the form set forth in this Resolution, executed manually by the Registrar. Only such Bonds as shall bear thereon such -25- Res. No. 98-91 certificate of authentication shall be entitled to any right or benefit under thi~ Resolution, and no Bond shall be valid or obliga- tory for any purpose until such certificate of authentication shall have been duly executed by the Registrar. Such certificate of the Registrar upon any Bond executed on behalf of the City shall be con- clusive evidence that the Bond so authenticated has been duly authen- ticated and delivered under this Resolution and that the Holder thereof is entitled to the benefits of this Resolution. If any Series of Bonds are validated as directed by the Commission, the validation certificate on the Bonds shall be signed with the manual or facsimile signatures of the present or any future Mayor and City Clerk, as aforesaid, and the city may adopt and use for that purpose the facsimile signature of any person who shall have been such Mayor and City Clerk at any time on or after the date of the Bonds, notwithstanding that she or he may have ceased to be such Mayor or City Clerk at the time when said Bonds shall be actually delivered. SECI'ION 5. NEGOTIABILITY, R~GISTRATION AND CANC~.TZATION. At the option of the registered Holder thereof and upon surrender thereof at the designated corporate trust office of the Registrar with a written instrument of transfer satisfactory to the Registrar duly executed by the registered Holder or his duly authorized attor- ney and upon payment by such Holder of any charges which the Registrar may make as provided in this Section, the Bonds may be -26- Res. No. 98-91 exchanged for Bonds of the same Series, interest rate and maturity of any other authorized denominations. The Registrar shall keep books for the registration of Bonds and for the registration of transfers of Bonds. The Bonds shall be transferable by the Holder thereof in person or by his attorney duly authorized in writing only upon the registration books of the Clty kept by the Registrar and only upon surrender thereof together with a written instrument of transfer satisfactory to the Registrar duly executed by the Holder or his duly authorized attorney. Upon the transfer of any such Bond, the City shall issue in the name of the transferee a new Bond or Bonds. The City, the Paying Agent and the Registrar shall deem and treat the person in whose name any Bond shall be registered upon the books kept by the Registrar as the absolute Holder of such Bond, whether such Bond shall be overdue or not, for the purpose of receiv- ing payment of, or on account of, the principal of and interest on such Bond as the same become due and for all other purposes. All such payments so made to any such Holder or upon his order shall be valid and effectual to satisfy and discharge the liability upon such Bond 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 exchanging Bonds or transferring Bonds is exercised, the City shall execute and the Registrar shall authenticate and deliver Bonds in accordance with the -27- Res. No. 98-91 provisions of this Resolution. Ail Bonds surrendered in any such exchanges or 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 such exchange or transfer of Bonds, but the city or the Registrar may require the payment of a sum sufficient to pay any tax, fee or other governmental charge required to be paid with respect to such exchange or transfer. Neither the City nor the Registrar shall be required (a) to transfer or exchange Bonds for a period from a Record Date to the next suc- ceeding Interest Payment Date on such Bonds or 15 days next preceding any selection of Bonds to be redeemed or thereafter until after the mailing of any notice of redemption; or (b) to transfer or exchange any Bonds called for redemption. However, if less than all of a Term Bond is redeemed or defeased, the City shall execute and the Registrar shall authenticate and deliver, upon the surrender of such Term Bond, without charge to the Bondholder, for the unpaid balance of the principal amount of such Term Bond so surrendered, a regis- tered Term Bond in the appropriate denomination and interest rate. All Bonds paid or redeemed, either at or before maturity shall be delivered to the Registrar when such payment or redemption is made, and such Bonds, together with all Bonds purchased by the City, shall thereupon be promptly cancelled. Bonds so cancelled may at any time be destroyed by the Registrar, who shall execute a cer- tificate of destruction in duplicate by the signature Of one of its authorized officers describing the Bonds so destroyed, and one -28- Res. No. 98-91 executed Certificate shall be filed with the City and the other executed certificate shall be retained by the Registrar. The City may, by subsequent proceedings, provide for the registration of the Bonds of any Series by adopting the Book-Entry System for such Series. Bonds held by the Securities Depository while the Bonds are registered under the Book-Entry System shall be registered in the name of the Securities Depository or its nominee and beneficial ownership of such Bonds shall be transferred in accor- dance with the procedures of the Securities Depository and its Participants. SECTION 6. BONDS MUTILATED, DESTROYED, STOLEN OR LOST. In case any Bond shall become mutilated, destroyed, stolen or lost, the City may execute and the Registrar shall authenticate and deliver a new Bond of like date, maturity, denomination and interest rate as the Bond so mutilated, destroyed, stolen or lost; provided that. in the case of any mutilated Bond, such mutilated Bond shall first be surrendered to the City and, in the case of any lost, stolen or destroyed Bond, there shall first be furnished to the City and the Registrar evidence of such loss, theft, or destruction satisfactory to the city and the Registrarv together with indemnity satisfactory to them. In the event any such Bond shall be about to mature or have matured or have been called for redemption, instead of issuing a duplicate Bond, the City may pay the same without surrender thereof. The City and the Registrar may charge the Holder of such Bond their reasonable fees and expenses in connection with this transaction. -29- Res. No. 98-91 Any Bond surrendered for replacement shall be cancelled in the same manner as provided in Article II, Section 5 of this Resolution. Any such duplicate Bonds issued pursuant to this SectiOn shall constitute additional contractual obligations on the part of the City, whether or not the lost, stolen or destroyed Bonds be at any time found by anyone, and such duplicate Bonds shall be entitled. to equal and proportionate benefits and rights as to lien on and source and security for payment with all other Bonds issued hereunder. SECTION 7. PREPARATION OF DEFINITIVE BONDS; TEMPORARY BONDS. ~]e definitive Bonds shall be lithographed or printed on steel engraved borders unless the City is utilizing the Book-Entry System, in which case, such definitive Bonds may be typewritten. Until the definitive Bonds are prepared, the Mayor and the City Clerk may exe- cute and the Registrar may authenticate, in the same manner as is provided in Article II, Section 4 of this Resolution, and deliver, in lieu of definitive Bonds, but subject to the same provisions, limita- tions and conditions as the definitive Bonds, one or more printed, lithographed or typewritten temporary fully registered Bonds, sub- stantially of the tenor of the definitive Bonds in lieu of which such temporary Bond or Bonds are issued, in authorized denominations or any integral multiple thereof, and with such omissions, insertions and variations as may be appropriate to such temporary Bonds. The City, ~t its own expense, shall preDare and execute and, uDon the surrender at the designated corporate trust office of the Registrar -30- Res. No. 98-91 of such temporary Bonds for which no payment or only partial payment has been provided/ for exchange and the cancellation of such surren- der temporary Bonds, the Registrar shall authenticate and, without charge to the Holder thereof, deliver in exchange therefor, at the designated corporate trust office of the Registrar, definitive Bonds of the same aggregate principal amount, interest rate and maturity as the temporary Bonds surrendered. Until so exchanged, the temporary Bonds shall in all respects be entitled to the same benefits and security as definitive Bonds issued pursuant to the provisions of this Resolution. SECTION 8. FORMS OF BONDS. The text of the Bonds shall be of substantially the following tenor, with such omissions, insertions and variations as may be necessary and desirable: (Forms of Bond)* * Provisions of the Bonds may be set forth on the back of the Bonds and shall for all purposes have the same effect as if set forth on the front of the Bonds. -31- Res. No. 98-91 (Face of Bond with certain provisions applicable to a Capital Appreciation Bond or a Capital Apprec~ation and Income Bond as indicated) '~ No. R $ UNITED STATES OF AMERICA STATE OF FLORIDA PALM BEACH COUNTY CITY OF DELRAY BEACH UTILITIES TAX REVENUE BOND SERIES Interest Maturity Dated Rate Date Date CUS I P Registered Owner: Principal Amount: KNOW ALL MEN BY THESE PRESENTS, that City of Delray Beach, Florida (the "City"), for value received, hereby promises to pay, from the proceeds of the Utilities Tax deposited pursuant to the terms of the Resolution, as such terms are hereinafter defined, to the Registered Owner or registered assigns on the Maturity Date spec- ified above, upon the presentation and surrender hereof at the desig- nated corporate trust office of , as paying agent (said and any bank or trust company becoming successor paying agent being herein called the "Payin~ Agent"), the Principal Amount stated hereon with interest thereon at the Interest Rate stated above, payable on the first day of and -32- Res. No. 98-91 of each year until the City's obligation with respect to the payment of such Principal ~Amount ~hall be discharged. Interest on this Bom is payable by check or draft of the Paying Agent made payable to the registered owner and mailed to the address of the registered owner as such name and address shall appear on the registration books of the city maintained by , as Registrar (said , and any successor Registrar being herein called the WRegistrar") on the fifteenth day of the calendar month preceding each interest payment date or the fifteenth day prior to the date notice of redemption is given, whether or not such fifteenth day is a Saturday, Sunday or holiday (the "Record Date"); provided further, however, that payment of interest on the Bonds may, at the option of any Holder of Bonds in an aggregate principal amount of at least $1,000,000, be transmitted by wire transfer to the Holder to the bank account number on file with the Paying Agent as of the Record Date. Such interest shall be payable from the most recent interest payment date next preceding the date hereof to which interest has been paid, unless the date hereof is an 1 or 1 to which inter- est has been paid, in which case from such 1 or 1, or unless the date hereof is prior to , 19__, in which case from , 19 , or unless the date hereof is between a Record Date and the next succeeding interest paYment date, in which case from such interest payment date; provided, however, that if and to the extent there is a default in the payment of the interest due on such interest payment date, such defaulted interest shall be paid to -33- Res. No. 98-91 the persons in whose name Bonds are registered on the re~is~ration books of the City "maintained by the Registrar at ~he close of busi- ness on the fifteenth day prior to a subsequent interest payment date established by notice mailed by the Registrar to ~he registered o~er not less than the tenth day preceding such subsequent interest pay- ment date. The Principal Amount end accrued interest thereon, is pay- able 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. -34- Res. No. 98-91 [The following is applicable to Capital Appreciation Bonds only] ¢ NO. UNITED STATES OF AMERICA STATE OF FLORIDA PALM BEACH COUNTY CITY OF DELRAY BEACH UTILITIES TAX REVENUE BONDS SERIES Interest Maturity Dated Rate Date Date 'CUSIP Registered Owner: Principal Amount: $ . per $5,000 Amount Due at Maturity Amount Due at Maturity: KNOW ALL MEN BY THESE PRESENTS, that the City of Delray Beach, Florida (the "City"), for value received, hereby promises to pay from the proceeds of the Utilities Tax deposited pursuant to the terms of the Resolution, as such terms are hereinafter defined, to the .Registered Owner or registered assigns on the Maturity Date spec- ified above, upon presentation and surrender hereof at the designated corporate trust office of , as paying agent (said and any bank or trust company to become successor paying agent being herein called the "Paying Agent"), the Amount Due at Maturity (stated above), constituting the Principal Amount per -35- Res. No. 98-91 $S,000 Amount Due at Maturity (stated above) and interest thereon at the Interest Rate (stated above) from the Dated Date (stated above) compounded on __ and thereafter on and , of each year until payment of said maturity amount or upon earlier redemption, as set forth on the reverse side hereof, payment to be made at the Accreted Value as of the date of redemption or other date of payment. The "Accreted Value" of this Bond shall mean, as of any date of computation, an amount equal to the principal amount hereof plus the compounded interest accrued hereon to the i or 1 next preceding the date of computation or the date of computation if a 1 or 1, plus, if such date of computation shall not be a I or 1, a portion of the difference between the Accreted Value as of the immediately pre- ceding 1 or 1 (or the Dated Date if the date of computation is prior to , 19 ) and the Accreted Value as of the immediately succeeding 1 or 1, calculated based upon the assumption that Accreted Value accrues during any semiannual period in equal daily amounts on the basis of a year of twelve 30-day months. The Accreted Value per $5,000 maturity amount of this Bond on each 1 or 1 is set forth in a table on the reverse hereof. The table should' not be construed as a representation as to the market value of this Bond at any time in the future but may bear a relationship to the amount of tax-exempt inter- est and taxable gain with respect to this Bond if sold prior to maturity. -36- Res. No. 98-91 [The followinq is applicable to Capital Appreciation and Income Bonds only] ¢ NO. UNITED STATES OF AMERICA STATE OF FLORIDA PALM BEACH COUNTY CITY OF DELRAY BEACH UTILITIES TAX REVENUE BOND SERIES INTEREST MATURITY DATED RATE DATE DATE CUSIP REGISTERED OWNER: PRINCIPAL AMOUNT: $__ PER $5,000 AMOUNT DUE AT MATURITY AMOUNT DUE AT MATURITY: INTEREST COMMENCEMENT DATE: KNOW ALL MEN BY THESE PRESENTS, that the city of Delray Beach, Florida (the "City"), for value received, hereby promises to pay from the proceeds of the UtilitiesTax deposited pursuant to the terms of the Resolution, as such terms are hereinafter defined, to the Registered Owner or registered assigns on the Maturity Date spec- ified above, upon presentation and surrender hereof at the designated corporate trust office of , as paying agent (said and any bank or trust company to become successor paying agent being herein called the "Paying Agent"), the Amount Due -37- Res. No. 98-91 at Maturity (s~ated above), constituting the Principal Amount (state~ abowe) per $5 , 000' Amount Due at Maturity and interest thereon at the Interest Rata (stated above) from the Dated Date (stated above), com- pounded on each 1 and 1 during the period from the Dated Date (stated above) to , (the "Interest Commencement Date"). The City further promises to pay to the Registered Owner hereof by check or draft of the Paying Agent made payable to the registered owner and, mailed to such registered owner at the address shown on the registration books of the City kept for that purpose at the designated corporate trust office of , as Registrar (said and any successor Registrar being herein called the "Registrar") as of the fifteenth day of the month preced- ing such interest payment date, interest on the Amount Due at Maturity from the Interest Commencement Date, at the rate per annum equal to the Interest Rate (stated above), payable on the first days of and in each year (commencing 1, ), until the City's obligation with respect to the payment of such Amount Due at Maturity shall be discharged. Upon earlier redemption or other payment prior to the Interest Commencement Date, as set forth on the reverse hereof, payment shall be made at the Appreciated Value as of the date of redemption or other payment of this Bond. The "Appreciated Value" of this Bond shall mean (i) as of any date of computation up to and including, 1, , an amount ec~al to the Principal Amount hereof plus the interest accrued thereon to the 1 or I next preceding the date -38- Res. No. 98-91 of computation or the date of computation if a i or 1, plus, if such date of computation shall not be a i or 1, a potation of the difference between the Appreciated Value as of the immediately preceding 1 or i (or the Dated Date if the date of computation is prior to 1, 19 ) and the Appreciated Value as of the immedi- ately succeeding i or 1, calculated based upon an assumption that Appreciated Value accrues during any semiannual period in equal daily amounts on the basis of a year of twelve 30-day months, and (ii) after the Interest Commencement Date, the Appreciated Value at the Interest Commencement Date. The Appreciated Value per $5,000 Amount Due at Maturity of this Bond on each i and i is set forth in a table on the reverse hereof. The table should not be construed as a representation as to the market value of this Bond at any time in the future but may bear a relationship to the amount of tax-exempt interest and taxable gain with respect to this Bond if sold prior to Interest Commencement Date. Upon redemption or other payment subsequent to the Interest Commencement Date and prior to the Maturity Date in accordance with the provisions set forth on the reverse hereof, payment of this Bond shall be made in an amount equal to the Amount Due at Maturity plus' any applicable premium plus accrued and unpaid interest on such Amount Due at Maturity. THE FOLLOWING IS APPLICABLE TO ALL BONDS -39- Res. No. 98-91 This Bond is one of an authorized issue of Bonds in the aggregate princip~l amount of $ of like date, tenor, and effect, except as to number, date of maturity and interest rate, issued for the purpose of (i) defeasing and refunding certain out- standing obligations of the City, and (ii) financing all or a portion of the cost of the construction and acquisition of the 1991 Improvements (as described in the hereinafter referred to Resolution) under the authority of and in full compliance with the Constitution and Statutes of the State of Florida, including the Charter of the City, as amended and supplemented, the Florida 'Constitution, Chapter 166, Florida Statutes, as amended and supplemented, and other applicable provisions of law, and a resolution duly adopted by the City Commission of the City on December 3, 1991, as amended and sup- plemented (herein, collectively referred to as the "Resolution"), and is subject to all the terms and conditions of the Resolution. REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS BOND SET FORTH ON THE REVERSE SIDE HEREOF AND SUCH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORT~ ON THE FRONT SIDE HEREOF. It is hereby certified and recited that all acts, condi- tions and things required to exist, to happen, and to be performed, precedent to and in the issuance of this Bond exist, have happened and have been performed in regular and due form and time as required by the Laws and Constitution of the State of Florida and the Charter of the City applicable thereto, and that the issuance of this Bond, -40- Res. No. 98-91 and of the issue of Bonds of which this Bond is one, is in full compliance with ~11 constitutional or statutory limitations or provisions. IN WITNESS WHEREOF, the City of Delray Beach, Palm Beach County, Florida, has caused this Bond to be signed by the Mayor of said City, either manually or with his/her facsimile signature, and the seal of the City of Delray Beach to be affixed hereto or imprinted or reproduced hereon, and attested by its City Clerk, either manually or with her/his facsimile signature, and this Bond to be dated the Dated Date specified above. CITY OF DELRAY BEACH, FLORIDA Mayor Attest: City Clerk -41- Res. No. 98-91 II~[ 0~' ~'~RTIFICATE Of' AUTHENTIC:/LTZC~I Date of Authentication: This Bond is one of the Bonds delivered pursuant to the within mentioned Resolution. , as Registrar By Authorized officer FORM OF VALIDATION Cl~TIFI~ [insert only if Bonds are validated] This Bond is one of a series of Bonds which were validated by judgment of the Circuit Court for Palm Beach County, Florida, rendered on the day of , 199X. Mayor City Clerk -42- Res. No. 98-9] [ INSERT REDEMPTION PROVISIONS ] Pari Pass~ Additional Bonds may be issued by the City from time to time upon the conditions and within the limitations and in the manner provided in the Resolution. This Bond and the issue of which it is a parc are payable, together with such obligations as may in the future be issued on a parity therewith, solely, as to both principal and interest, from the proceeds of the tax imposed by the City on the purchase of certain utility services, including electricity, metered and bottled gas (natural liquified petroleum gas or manufactured), and telec~,,unica- tion services in said City (the "Utilities Tax"). The Resolution provides that, to the extent necessary to pay principal of and inter- est on obligations of which this Bond is one and to carry out the provisions of the Resolution, said tax shall be levied and collected in an amount sufficient to make such payments of principal of and interest and to make all other payments required by the Resolution. This Bond, including interest hereon, is payable solely from the pro- ceeds of said Utilities Tax deposited in the Sinking Fund created under the Resolution and does not constitute an indebtedness of the City within the meaning of any constitutional, statutory or charter provision or limitation. It is expressly agreed by the owner of this Bond that such owner shall never have the right to require or compel the exercise of the ad valorem taxing power of the City for the pay- ment of the principal of or interest on this Bond or the making of any reserve or other payments provided for in the Resolution. It is -43- Res. No. 98-91 further agreed between the City and the owner of this Bond that this Bond and the obli~ation evidenced thereby shall r~c constitute a lien upon any property of or in the City but shall constitute a lien only on the proceeds of the Utilities Tax deposited under the B~solution. Additional obligations, payable from the proceeds of such Utilities Tax pari passu with the Bonds of the issue of which this Bond. is one, may be issued by the City from time to time upon the conditions and within the limitations and in the manner provided in the Resolution. The original registered owner, and each successive regis- tered owner of this Bond shall be conclusively deemed to have agreed and consented to the following terms and conditions: (1) The Registrar shall maintain the books of the City for the registration of Bonds and for the registration of transfers of Bonds as provided in the Resolution. The Bonds shall be transferable by the registered owner thereof in person or by his attorney duly authorized in writing only upon the registration books of the City maintained by the Registrar and only upon surrender hereof together 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 any such Bond, the City shall issue in the name of the transferee a new Bond or Bonds. -44- Res. No. 98-91 (9_) The City, the Paying Agent and the Registrar shall deem and treat th~ person in whose name any Bond shall be registered upon the books kept by the Registrar as the absolute owner of such Bond, whether such Bond shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal of and interest on such Bond as the same becomes due, and for all other purposes.' All such payments so made to any such registered owner or upon his order shall be valid and effectual to satisfy and discharge the liability upon such Bond 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. (3) At the option of the registered owner thereof and upon surrender hereof at the designated corporate trust office of the Registrar with a written instrument of transfer satisfactory to the Registrar duly executed by the registered owner or his duly autho- rized attorney and upon payment by such registered owner of any charges which the Registrar or the City may make as provided in the Resolution, the Bonds may be exchanged for Bonds of the same interest rate and maturity of any other authorized denominations. (4) In all cases in which the privilege of exchanging Bonds or transferring Bonds is exercised, the City shall execute and the Registrar shall authenticate and deliver Bonds in accordance with the provisions of the Resolution. There shall be no charge for any such exchange or transfer of Bonds, but the City or the Registrar may require payment of a sum sufficient to pay any tax, fee or other -45- Res. No. 98-91 governmental charge required to be paid with respect to such exchange or transfer. Neither the City nor the Registrar shall be required (a) to transfer or exchange Bonds for a period from a Record Date to the next succeeding interest payment date on such Bonds or 15 days next preceding any selection of Bonds to be redeemed or thereafter until after the mailing of any notice of redemption; or (b) to trans- fer or exchange any Bonds called for redemption. However, if less than all of a Bond is redeemed or defeased, the City shall execute and the Registrar shall authenticate and deliver, upon the surrender of such Bond, without charge to the Bondholder, for the unpaid bal- ance of the principal amount of such Bond so surrendered, a regis- tered Bond in the appropriate denomination and interest rate. This Bond shall not be valid or obligatory for any purpose until the certificate of authentication set forth hereon shall have been duly executed by the Registrar. [The following paragraph is applicable to Capital Appreciation Bonds only] The Capital Appreciation Bonds, of which this Bond is one, pay principal and compound accrued interest only at maturity or upon prior redemption. For the purposes of (i) receiving payment of the redemption price if a Capital Appreciation Bond is redeemed prior to maturity, or (ii) computing the amount of Bonds held by the regis- tered owner of a Capital Appreciation Bond in giving to the City any notice, consent, request, or demand pursuant to the Resolution for any purpose whatsoever, or (iii) computing the amount of Bonds to be -46- Res. No. 98-91 redeemed and the selection of Bonds to be redeemed, the principal amount of a Capital Appreciation Bond shall be deemed to be its Accreted Value. [The following paragraph is applicable only to Capital Appreciation and Income Bonds] For the purposes of (i) receiving payment of the redemption price if a Capital Appreciation and Income Bond is redeemed prior to maturity, or (ii) computing the amount of Bonds held by the regis- tered owner of a Capital Appreciation and Income Bond in giving to the City any notice, consent, request or demand pursuant to the Resolution for any purpose whatsoever, the principal amount of a Capital Appreciation and Income Bond shall be deemed to be its Appreciated Value. -47- Res. No. 98-91 [For Capital Appreciation Bonds only] ACCRETED VALUE PER $5,000 MATURITY AMOUNT Accreted Accreted Date Value Date Value -48- Res. No. 98-91 [For Capital Appreciation and Income Bonds only] APPRECIATED VALUE PER $$,000 MATURITY AMOUNT Appreciated Appreciated Date Value Date Value -49- Res. No. 98-91 ASSIGNMENT AND TRANSFER FOR VALUE RECEIVED the undersigned sells, assigns and transfers unto (please print or typewrite name and address of transferee) the within bond and all rights thereunder, and hereby irrevocably constitutes and appoints Attorney to transfer the within bond on the books kept for registra- tion thereof, with full power of substitution in the premises. Dated: In the presence of: [STATEMENT OF INSURANCE, if any] -50- Res. No. 98-91 SECTION 9. BOOK-ENTRY SYSTEM. 1. As ldng as any Series of Bonds are registered under the Book-Entry System, the City and the Registrar shall comply with the terms of the agreement entered into with the Securities Depository (the "Book-Entry Agreement") with respect to such Series. However, the Book-Entry System through the Securities Depository may be termi- nated upon the happening of any of the following: (a) The Securities Depository or the City, based upon advice from the Securities Depository, advise the Registrar that the Securities Depository is no longer willing or able to properly discharge its responsibilities under the Book-Entry Agreement and the Registrar and the City are unable to locate a qualified successor clearing agency satisfactory to the Registrar and the City; or (b) The City, in its sole discretion but with the prior written consent of the Registrar, elects to terminate the Book-Entry System by notice to the Securities Depository, the Registrar and the Credit Facility Issuer, if uny. 2. Upon the occurrence of any event'described above, the city and the Registrar shall, if necessary, enter into a resolution supplemental to this Resolution to add to the provisions of this Resolution any provisions deemed reasonably necessary or required by the Registrar, and approved in writing by the Credit Facility Issuer, -51- Res. No. 98-91 if any, with respect to Replacement Bonds (including, but not limited to, the provision ~for the cost and expenses for the printing thereof) and to account for the fact that, thereafter, the Bonds will no longer be registered under the Book-Entry System, and (ii) the Registrar shall notify the Securities Depository and the Credit Facility Issuer, if any, of the occurrence of such event and of the availability of definitive or temporary Replacement Bonds to Beneficial Owners requesting the same, in an aggregate Outstanding amount representing the interest of each such Beneficial Owner, making such adjustments and allowances as it may find necessary or appropriate as to accrued interest and previous payments of principal. Definitive Replacement Bonds shall be issued only upon surrender to the Registrar of the Bond of each maturity by the Securities Depository, accompanied by registration instructions for the definitive Replacement Bonds for such maturity from the Securities Depository. Neither the City nor the Registrar shall be liable for any delay in delivery of such instructions and conclu- sively may rely on, and shall be protected in relying on, such instructions. 3. Whenever the Bonds are registered under the Book-Entry System and notice or other communication to the Bondholders is required under this Resolution, unless and until Replacement Bonds shall have been issued with respect to the Bonds, the City or the Registrar, as the case may be, shall give to the securities Depository one copy of each such notice and communication specified -52- Res. No. 98-9~ herein or required by this Resolution to be given to the Beneficial Owners of the Bonds. ARTICLE III COVENANTS, FUNDS AND APPLICATION THEREDF SECTION 1. BONDS NOT TO BE INDEBTEDNESS OF THE CITY. The Bonds shall not be and shall not constitute an indebtedness of the City within the meaning of any constitutional, statutory, charter or other limitation of indebtedness, but shall be payable solely from the Utilities Tax proceeds, as provided herein. No Holder or Holders of any Bonds issued hereunder 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 the Bonds or the inter- est thereon. SECTION 2. BONDS SECURED BY PLEDGE OF UTILITIES TAX PROCEEDS. Tile payment of the principal of and interest on all of the Bonds issued hereunder shall be secured forthwith equally and ratably by a first lien on and pledge of the Utilities Tax Proceeds deposited in the Sinking Fund, hereinafter created and established (herein referred to as the "Pledged Revenues"), except that any Pledged Revenues on deposit in the Debt Service Reserve Account established for any Series of Bonds shall be available only for the payment of such Series of Bonds. The Pledged Revenues deposited in the Sinking Fund, hereinafter created and established, in an amount Sufficient to pay the principal of and interest on the Bonds herein authorized, are -53- Res. No. 98-91 hereby irrevocably pledged to the payment of the principal of and interest on the Bonds authorized herein, and other payments provided for herein, as the same become due and payable; provided', however, that any cash and/or Permitted Investments or a Reserve Account Credit Facility Substitute on deposit in a Debt Service Reserve Account created and established under this Resolution for a particu- lar Series of Bonds, shall only be available to pay debt service on such Series of Bonds. Payment of the principal of and interest on the Bonds may also be secured by a Credit Facility, and liquidity for Variable Rate Bonds that are subject to tender for purchase may be provided by a Liquidity Facility, all as shall be determined by sub- sequent proceedings of the Commission. SECTION 3. APPLICATION OF 1991 BOND PROCEEDS. All moneys received by the City from the sale of the 1991 Bonds originally authorized and issued pursuant to this Resolution, shall be disbursed as follows: A. The accrued interest derived from the sale of the 1991 Bonds shall be deposited into the Interest Account, hereinafter cre- ated and established under this Resolution, and used for the purpose of paying interest on the 1991 Bonds, as the same becomes due and payable. B. From the proceeds of the 1991 Bonds, there may be deposited in the applicable Debt Service Reserve Account, hereinafter created and established under this Resolution, an amount equal to the Debt Service Reserve Requirement for the 1991 Bonds, as shall be -54- Res. No. 98-91 determined by subsequent proceedings of the commission, or in lieu of depositing all ow a part of such amounts, the City may deposit a Reserve Account Credit Facility Substitute with the requisite coverage. C. From the proceeds of the 1991 Bonds, an amount which, together with any other moneys lawfully available therefor, if any,. including moneys and investments, if any, transferred from the funds and accounts created and established by the proceedings authorizing the issuance of the Prior Obligations (such amounts to be determined by subsequent proceedings of the Commission), shall be deposited in one or more escrow deposit trust funds to be held by a bank or trust company, as escrow trustee, under the terms and provisions of the Escrow Deposit Agreement, and such proceeds, together with such other moneys, if any, shall be held irrevocably in trust in such escrow deposit trust funds under the terms and provisions of the Escrow Deposit Agreement; such moneys (other than beginning cash balances) shall be invested at the time of deposit in U. S. Obligations, which are not redeemable prior to maturity except by the holder thereof, the principal and interest of which shall be sufficient to pay the principal of, redemption premium, if any, and interest on the Prior Obligations., as the same become due and payable or are redeemed prior to maturity in accordance with the proceedings which authorized their issuance, all as provided in the Escrow Deposit Agreement. D. The balance of the proceeds derived from the sale of the 1991 Bonds shall be deposited in a fund in a bank or trust -55- Res. No. ?~-91 company in the State which is eligible under State laws to receive deposits of City ~unds, which fund is hereby created, established and designated as the "Acquisition/Construction Fund," together with other moneys lawfully available therefor, if any. There is hereby created and established in the Acquisition/Construction Fund a sepa- rate line item to be known as the "Cost of Issuance Cost Center," into which shall be deposited an amount of the proceeds of the 1991 Bonds sufficient to pay the costs of issuance of 1991 Bonds, includ- ing, but not limited to, payment for the Credit Facility, if any, and the initial payment of the premium or fee for the Reserve Account Credit Facility Substitute, if any. The City is hereby authorized to permit the initial purchaser of the 1991 Bonds to pay directly to the Bond Insurer, from the proceeds of the Bonds, the cost of the Bond Insurance Policy, if any. If, for any reason, the moneys in the Acquisition/Construction Fund, or any part thereof, are not necessary for or are not applied to the purposes of the 1991 Improvements, then such surplus proceeds shall be deposited, upon certification of the City Manager other than amounts allocated to the Cost of Issuance Cost Center, that such surplus proceeds are not needed for the pur- poses of the Acquisition/Construction Fund, in the following order: First, to the Debt Service Reserve Account in the Sinking Fund created and established for the 1991 Bonds,. to the full extent necessary, either to reinstate any Reserve Account Credit Facility Substitute on deposit therein, or, to deposit additional moneys so that such deposit, together with such moneys already on deposit -56- Res. No. therein, equal the Debt Service Reserve Requirement for such 1991 Bonds; ' Second, to the Interest Account, Principal Account or Bond Redemption Account in the amounts, if any, determined by subsequent proceedings of the Commission; and Third, the balance, if any, to be used by the City for any lawful municipal purpose. The moneys deposited in the Acquisition/Construction Fund may, pending their use for the purposes provided in this Resolution, be temporarily invested in Permitted Investments maturing not later than the dates on which such moneys will be needed for the purposes of the Acquisition/Construction Fund. Subject to the provisions of the Code and the applicable Tax Certificate, all the earnings and investment income from such investments shall remain in and become a part of said Acquisition/Construction Fund and be used for the pur- poses of the Acquisition/Construction Fund. Any moneys received by the City from the State or from Palm Beach County, Florida (the "County"), or from the United States of America or any agencies thereof for the purpose of financing part of the 1991 Improvements, may be deposited in the Acquisition/ Construction Fund and used in the same manner as other 1991 Bond pro- ceeds are used therein; provided, however, that such moneys shall not be so deposited in the event and to the extent that the City has incurred debt in anticipation of the receipt of such moneys; and provided further, that separate accounts may be established in the -57- Res. No. 98-9]. Acquisition/Construction Fund for moneys received pursuant to the provisions of this~paragraph whenever required by Federal or State or County regulations. The proceeds of the sale of the 1991 Bonds (other than amounts deposited under the Escrow Deposit Agreement) shall be and constitute trust funds for the purposes hereinabove provided, and there is hereby created a lien upon such moneys, until so applied, in favor of the Holders of the Bonds, except that the lien on the moneys or securities or any moneys derived from a Reserve Account Credit Facility Substitute on deposit in a Debt Service Reserve Account, created and established under this Resolution for a particular Series of Bonds, shall only 'be for the benefit of the Holders of such Series of Bonds. SECTION 4. COVENANTS OF THE CITY. As long as any of the principal of or interest on any of the Bonds shall be Outstanding and unpaid, or until there shall have been set apart in the Sinking Fund, consisting of the Interest Account, Principal Account, Bond Redemption Account and respective Debt Service Reserve Accounts, if any, herein created and established, a sum sufficient to pay, when due, the entire principal of the Bonds remaining unpaid, together with interest accrued and to accrue thereon, or until the provisions of Article III, Section 4.E, of this Resolution, have been complied with, the City covenants with'the Bondholders of any and all of the Bonds issued pursuant to this Resolution as follows: -58- Pgs. No. n8-91 A. TAX COVENANT. 1. Unless the City elects to issue any one or more Series~of Bonds under the terms and provisions of this Resolution, the interest of which shall be includable in the gross income of the Holders thereof, the City covenants as to any other Series of Bonds issued pursuant to this Resolution to comply with each applicable requirement of the Code, and any successor provisions thereto, in order to maintain the exclusion of the interest on the Bonds from gross income for Federal income tax purposes pursuant to Section 103 (a) of the Code. In furtherance of the covenant contained in the preceding sentence, the City agrees to comply with the provi- sions of the applicable Tax Certificate. 2. The City shall make any and all payments required to be made to the United States Department of the Treasury in connection with the Bonds pursuant to Section 148(f) of the Code from amounts on deposit in the Sinking Fund created and established under this Resolution and/or from other moneys lawfully available therefor. 3. Notwithstanding any other provision of this Resolution to the contrary, as long as necessary in order to maintain the exclu- sion of interest on the Bonds from gross income for Federal income tax purposes, the covenants contained in this Section shall survive the payment of the Bonds, including any payment or defeasance thereof pursuant to Article III, Section 4.E of this Resolution. 4. Notwithstanding any other provision of this Resolution to the contrary, upon the City's failure to observe or refusal to comply with the covenants contained in this Section 4.A, the -59- Res. No. 99-91 Bondholders, or any trustee acting on their behalf, shall be entitled to the rights an4 remedies provided to Bondholders under this Resolution. B. UTILITIES TAX COVENANTS. The city hereby covenants and agrees that in each Fiscal Year, as long as any of the Bonds issued under this Resolution are Outstanding, it will take all lawful action necessary or required to continue to entitle the City to receive' the Utilities Tax proceeds and will take no action which will impair or adversely affect its receipt of such proceeds. The City hereby covenants that it shall not repeal the ~tilities Tax Ordinance. To the extent necessary for the city to meet its obliga- tions under this Resolution and any resolution supplemental thereto, it shall increase the rate of the Utilities Tax to the highest rate legally permitted under applicable law and the City shall enact every substitute or supplemental ordinance which may, for any r~ason, become legally necessary or necessary to comply with the provisions of this Resolution. The City will keep proper books and records regarding the collection of the Utilities Tax proceeds and the uses made of the proceeds thereof and that all records with respect thereto shall be available for inspection at all reasonable times by Holders of any of the Bonds. Within ninety (90) days following the close of each Fiscal Year, the City will supply to any such Holder, who may have so requested in writing, a written statement or ~e~ort covering the receipt and disposition of the Utilities Tax pr(~ceeds during such prior Fiscal Year. -60- ~es. No. C. CREATION AND ESTABLISHMENT OF SINKING FUND AND ACCOUNTS T}{EREIN~ There are hereby created and established the following fund and accounts therein: The "City of Delray Beach Utilities Tax Sinking Fund" (hereinafter referred to as the "Sinking Fund"). There are also hereby created and established three (3) separate accounts in the Sinking Fund to be known as the "Interest Account," the "Principal Account" and the "Bond Redemption Account." The City hereby creates and establishes a separate and distinct Debt Service Reserve Account for the 1991 Bonds in the Sinking Fund, herein referred to as the "Debt Service Reserve Account," with such other appropriate denomina- tion as the City deems necessary to distinguish such Debt Service Reserve Account from all other Debt Service Reserve Accounts. The City reserves the right, but shall not be obligated,, to create and establish additional separate Debt Service Reserve Accounts in the Sinking Fund for any other Series of Bonds issued pursuant to the terms and provisions of this Resolution. Each such Debt Service Reserve Account, so created and established, shall constitute sepa- rate security for the Series of Bonds for which it relates and the moneys or securities therein or derived from a Reserve Account Credit Facility Substitute therein shall not be available to pay debt ser- vice on any other Series of Bonds unless expressly so provided by supplemental resolution adopted prior to the issuance of such Series of Bonds for which such Debt Service Reserve Account was created and established. -61- Res. No. 98-93. In the event the City should issue a Series of Bonds, the interest on which,is included in the gross income of the Holders thereof for Federal income tax purposes, the City shall take such steps, including the creation of separate subaccounts which in the opinion of Bond Counsel is necessary to preserve the exclusion from gross income of interest on all other Series of Bonds. D. DISPOSITION OF UTILITIES TAX PROCEEDS. A 1 1 o r a portion of the Utilities Tax Proceeds collected each month by the City shall be deposited in the following manner and amounts (hereinafter, the Utilities Tax proceeds deposited in the Sinking Fund are referred to as the "Pledged Revenues"): 1. Pledged Revenues shall be used, to the full extent nec- essary, for deposit into the Interest Account in the Sinking Fund, on the fifteenth (15th) day of each month, beginning with the fifteenth (15th) day of the first full calendar month following the date on which any or all of the Bonds are delivered to the purchaser thereof, such sums as shall be sufficient to pay one-sixth (1/6th) of the interest becoming due on the Bonds on the next semiannual Interest Payment Date; provided, however, that such monthly deposits for interest shall not be required to be made into the Interest Account to the extent that money is on deposit therein; and provided further, that in the event the City has issued pari passu additional Variable Rate Bonds pursuant to the provisions of this Resolution, Pledged Revenues shall be deposited at such other or additional times and amounts as necessary to pay the interest becoming due on the Bonds on -62- Res. No. ?~-9! the next Interest Payment Date, all in the manner provided in the supplemental resolution authorizing such pari passu additional Variable Rate Bonds. The income and investment earnings derived from the moneys and investments on deposit in the Interest Account shall be retained therein and the moneys and investment earning on deposit in the Principal Account, the Bond Redemption Account and the Debt Service Reserve Accounts shall be deposited in the Interest Account, and such income and investment earnings shall be credited against the amount of Pledged Revenues required to be deposited in the Interest Account. In the event that the period to elapse between the date of the delivery of the Bonds and the next semiannual Interest Payment Date will be less or more than six (6) months, then such monthly pay- ments shall be increased or decreased accordingly in sufficient amounts to provide the required semiannual interest amount maturing on the next Interest Payment Date. 2. Pledged Revenues shall next be used, to the full extent necessary, (a) for deposit in the Principal Account in the Sinking Fund, on the fifteenth (15th) day of each month in each year, one twelfth (1/12th) of the prin- cipal amount or Accreted Value of the Serial Bonds which will mature and become due on the next.annual maturity date, as shall be determined by subsequent -~- Res. No. proceedings of the Commission. In the event the period t= elapse between the date of delivery of the Bonds and the next principal payment date will be less or more than twelve (12) months, then such monthly payments shall be increased or decreased accordingly in sufficient amounts to provide the required princi- pal amount maturing on the next principal payment date. (b) for deposit into the Bond Redemption Account in the Sinking Fund (or such special subac- count created therein for Term Bonds of a particular maturity by subsequent proceedings of the Commission), on the fifteenth (15th) day of each month in each year, one twelfth (1/12th) of the amount required for the payment of the Term Bonds, as shall hereafter be determined by subsequent proceedings of the Commission, until the amount on deposit therein is equal to the amount required to be paid on the next installment payment date. The moneys in the Bond Redemption Account (or such special subaccount created therein for Term Bonds of a particular maturity by subsequent proceedings of the Commission) shall be used solely for the purchase or redemption of the Term Bonds payable therefrom. The City may purchase any of the Term Bonds at prices -64- Res. No. not greater than par and accrued interest and may purchase~Capital Appreciation Bonds and/or Capital Appreciation and Income Bonds (if such Capital Appreciation Bonds or Capital Appreciation and Income Bonds are Term Bonds) at prices not greater than the Accreted Value or Appreciated Value, as the case may be, as of the date of purchase. If, by the applica- tion of moneys in the Bond Redemption Account, the City shall purchase or cai1 for redemption in any year Term Bonds in excess of the installment requirement for such year, such excess of Term Bonds so purchased or redeemed shall, at the option of the City, either be credited on a pro rata basis over the remaining installment payment dates or credited against the fol- lowing year's installment requirement. The City shall, to the extent of any moneys in the Bond Redemption Account (or such special account created therein for Term Bonds of a particular matu- rity by subsequent proceedings of the Commission), be mandatorily obligated to use such moneys for the redemption prior to maturity of Term Bonds in such manner and at such times as shall hereafter be deter- mined by subsequent proceedings of the Commission. No distinction or preference shall exist in the use of moneys on deposit in the Sinking Fund for -65- Res. No. 78-9! payment into the Interest Account, the Principal Account and the Bond Redemption Account in the sinking Fund, such accounts being on a parity with each other. 3. To the extent not funded from Bond proceeds or covered by Reserve Account Credit Facility Substitutes, Pledged Revenues shall next be used on a pro rata basis, to the full extent necessary, for deposits into each of the Debt Service Reserve Accounts in the Sinking Fund, on the fifteenth (15th) day of each month in each year, beginning with the fifteenth (15th) day of the first full calendar month following the date on which any or all of the 1991' Bonds issued hereunder are delivered to the purchaser thereof, such sums as shall be sufficient to pay an amount equal to one-twelfth of twenty percent (1/12th of 20%) of the Debt Service Reserve Requirement applicable for each Series of Bonds; provided, however, that no payments shall be required to be made into the Debt Service Reserve Accounts when- ever and as long as the amount deposited therein shall be equal to the Debt Service Reserve Requirement for such Series of Bonds; pro- vided further, however, that if Pledged Revenues are insufficient to make the required deposits into the applicable Debt Service Reserve Accounts,. such Pledged Revenues, which are available, will be depos- ited therein on a pro rata basis. Notwithstanding the foregoing provisions, in lieu of the deposits of Pledged Revenues into any of the Debt Service Reserve Accounts created and established under this Resolution, the City may -66- Res. No. 78-91 cause to be deposited into any of the Debt Service Reserve Accounts a surety bond, an unconditional direct pay fetter of credit issued by a bank, a reserve account line of credit or a municipal bond insurance policy issued by a reputable and recognized municipal bond insurer for the benefit of the Holders of the applicable Series of Bonds for which such Debt Service Reserve Account has been created (sometimes referred to herein as a "Reserve Account Credit Facility Substitute") in an amount equal to the difference between the Debt Service Reserve Requirement for such Series of Bonds and the sums then on deposit in the applicable Debt Service Reserve Account, if any, which Reserve Account Credit Facility Substitute shall be payable (upon the giving of notice as required thereunder) on any Interest Payment Date on which a deficiency exists which cannot be cured by funds in any other account held pursuant to this Resolution and available for such pur- pose under the terms and order of priority as established by this Resolution. In addition, the City, at any time by subsequent pro- ceedings of the Commission, may substitute a Reserve Account Credit Facility Substitute for all or part of the moneys on deposit in any of the Debt Service Reserve Accounts. Under such circumstances, the principal amount of Reserve ACcount Credit Facility Substitute and the moneys on deposit in such Debt Service Reserve Account shall be in an amount equal to the Debt Service Reserve Requirement for such Series of Bonds for which such Debt Service Reserve Account was created. Such municipal bond insurer or bank in the case of a letter of credit or line of credit shall be one whose municipal bond -67- Res. No. ?$-97. insurance policies or unconditional direct pay letters of credit or other type of credit enhancement insuring or guaranteeing the pay- ment, when due, of the principal of and interest on municipal bond issues results in such issues being rated in the highest rating cate- gory by any Rating Agency or Agencies then rating the Bonds, and in the case the provider of such Reserve Account Credit Facility Substitute is an insurer, such insurer holds the highest policyholder rating accorded insurers by the Rating Aqency or. Aqencies then ratinq the Bonds and by A.M. Best & Company, or any comparable service. If a disbursement is made from a Reserve Account Credit Facility Substitute, provided pursuant to this paragraph, the City shall be obligated to reinstate the maximum limits of such Reserve Account Credit Facility Substitute following such disbursement at the time or times required by the issuer of the Reserve Account Credit Facility Substitute, or, with the consent of the issuer of such Reserve Account Credit Facility Substitute, to replace such Reserve Account Credit Facility Substitute by depositing into the applicable Debt Service Reserve Account from the Pledged Revenues, as herein pro- vided, immediately, following the receipt of the consent of the issuer of such Reserve Account Credit Facility Substitute, funds in the maximum amount originally payable under such Reserve Account Credit Facility Substitute, or any combination of such alternatives. If a disbursement is made from more than one Reserve Account Credit Facility Substitute and/or from moneys on deposit in .more than one Debt Service Reserve Account, the City shall be required to reinstate -68- Res. No. 79-~1 each Reserve Account Credit Facility Substitute and/or make deposits therein, as described above, on a pro rata basis. In the event a Debt Service Reserve Account is funded, both with cash (including Permitted Investments of such cash) and a Reserve Account Credit Facility Substitute in the aforementioned manner, and it is necessary to make payments attributable to debt service on the Series of Bonds for which such Debt Service Reserve Account relates into the Interest Account, Principal Account or Bond Redemption Account in the Sinking Fund when moneys in the Sinking Fund are insufficient therefor, the City covenants to deposit the cash (including Permitted Investments of such cash) on deposit in such Debt Service Reserve Account into such accounts in the Sinking Fund prior to making any disbursements made from such Reserve Account Credit Facility Substitute. Other than with respect to the income and investment earn- ings derived from moneys and investments on deposit in any Debt Service Reserve Account which are, by the terms of this Resolution, required to be deposited in the Interest Account, whenever there is on deposit in a Debt Service Reserve Account an amount in excess of the Debt Service Reserve Requirement for the Series of Bonds for which such Debt Service Reserve Account relates, the amount of such excess shall be reduced in the following manner: (a) if there is on deposit in the Debt Service Reserve Account a Reserve Account Credit Facility Substitute, as provided herein, the principal amount thereof shall be reduced by the amount of such excess, and (b) if there is on deposit in such Debt Service Reserve Account, cash (or Permitted -69- Pes. No. 78-~1 Investments of such cash), the City shall reduce the amount of cash and/or Permitted I~vestments of such cash in the Debt Service Reserve Account in an amount equal to such excess. The cash and/or Permitted Investments of such cash so withdrawn under clause (b) above shall be deposited into any other account of the Sinking Fund or used for any other lawful municipal purpose, as shall be determined at the option of the Commission. Each Debt Service Reserve Account shall be used only for the purpose of making payments into the Interest Account, the Principal Account and the Bond Redemption Account, ~s such payments relate to debt service on the Series of Bonds for which such Debt Service Reserve Account was created when the moneys in the Sinking Fund are insufficient therefor; and provided further, however, that moneys on deposit in a Debt Service Reserve Account may, upon final maturity of the Series of Bonds for which such Debt Service Reserve Account was created, be used to pay principal of and interest on such Series of Bonds. 4. Pledged Revenues shall next be used, first, for the repayment of any obligations owed to the provider(s) of a Reserve Account Credit Facility Substitute (pro rata, if necessary), and second, for the payment of any subordinated indebtedness hereafter issued by the City in accordance with the proceedings authorizing such subordinated indebtedness. 5. Thereafter, the balance of any Pledged Revenues remaining in the Sinking Fund, after all payments above required have -70- Res. No. 98-71 been made and all deficiencies thereof have been remedied, may be released by the Ci.ty from the lien of this Resolution and used for any lawful municipal purpose. 6. The Sinking Fund, including the Interest Account, Principal Account and Bond Redemption Account therein and all other special funds and accounts that may be created and established under this Resolution shall constitute trust funds for the Holders of the Bonds, except that any Debt Service Reserve Account shall only con- stitute a trust fund for the Holders of the Series of Bonds for which such Debt Service Reserve Account relates. The amounts required to be accounted for in each of the funds and accounts designated herein may be deposited in a single bank account maintained by the City pro- vided that adequate accounting procedures are maintained to reflect and control the restricted allocations of the amounts on deposit therein for the various purposes of such funds and accounts as herein provided. The designation and establishment of funds and accounts in and by this Resolution shall not be construed to require the estab- lishment of any completely independent funds and accounts but rather is intended solely to constitute an allocation of certain moneys deposited therein for certain purposes and to establish such certain priorities, for application of certain revenues and assets as herein provided. Moneys on deposit in the Sinking Fund may be invested in U.S. Obligations or any other Permitted Investments maturing not later than such date or dates as the City shall determine. -71- Res. No. ?~-9~ Subject to the requirements under the Code and the Tax Certificate, all income and earnings received from the investment and reinvestment of moneys on deposit in the Sinking Fund .shall be retained in the Sinking Fund and used in the same manner as other moneys on deposit therein. The value of Permitted Investments on deposit in the funds and accounts created and established under this Resolution, other than any Debt Service Reserve Account, shall be the lower of par, or if purchased at other than par, amortized value. Amortized value, when used with respect to securities purchased at a premium above or a discount below par, shall mean the value at any given date obtained by dividing the total premium or discount at which such securities were purchased by the number of interest payment dates remaining to maturity on such securities after such purchase and by multiplying the amount so calculated by the number of interest payment dates having passed since the date of purchase; and '(i) in the case of securities purchased at a premium, by deducting the product thus obtained from the purchase price, and (ii) in the case of securities purchased at a discount, by adding the product thus obtained to the purchase price. 7. Notwithstanding any provision in this Resolution to the contrary, the city hereby reserves the right to make any of the pay- ments required under this Resolution from any other legally available source, and, to the extent that such payments shall have been made -72- pes. No. when due, the corresponding payments from the Pledged Revenues may be reduced. ~ 8. At any time the Pledged Revenues on deposit in the Sinking fund or any of the accounts created therein are insufficient for the purposes intended, the City covenants to deposit additional Utilities Tax proceeds to cure such deficiencies. E. DISCHARGE AND SATISFACTION OF BONDS. The covenants, liens and pledges entered into, created or imposed pursuant to this Resolution may be fully discharged and satisfied with respect to the Bonds in any one or more of the following ways: (a) by paying the principal of and interest on Bonds when the same shall become due and payable; or (b) by depositing in the Interest Account, Principal Account, Debt Service'Reserve Account (but only with respect to the Series of Bonds proposed to be paid within the meaning of this subparagraph) and the Bond Redemption Account, or insuch other accounts which are irrevocably pledged to the payment of the Bonds, as the City may hereafter create and establish by resolution, certain moneys which together with other moneys lawfully available therefor and deposited therein shall be sufficient at the time of such deposit to pay the Bonds, the interest thereon and the redemption premium, if any, as the same become due on -73- Res. No. 28-9]. said Bonds on or prior to the redemption date or maturity ~ate thereof; or (c) by depositing in the Interest Account, Principal Account, Debt Service Reserve Account (but only with respect to the Series of Bonds proposed to be paid within the meaning of this subparagraph) and the Bond Redemption Account, or such other accounts which are irrevocably pledged to the payment of the Bonds as the City may hereafter create and establish by resolution, moneys which, together with other moneys lawfully available therefor, and deposited therein when invested in Defeasance Obligations will provide moneys which shall be sufficient to pay the Bonds, the interest thereon and the redemption premi- um, if any, as the same shall become due on said Bonds on or prior to the redemption date or maturity date thereof. (d) Notwithstanding the foregoing all refer- ences to the discharge and satisfaction of Bonds shall include the discharge and satisfaction of any Series of Bonds, any portion of a Series of Bonds, any matu- rity or maturities of a Series of Bonds, any portion of a maturity of a Series of Bonds or any combination thereof. -74- Res. No. ¢~-9~ Notwithstanding the foregoing, in the event that the payment or deposit in the amount and manner provided in this Resolution has been made by the Credit Facility ISsuer under the terms of its Credit Facility, the Credit Facility Issuer shall be subrogated to the rights of the Holders of the Bonds and the liabil- ity of the City, with respect thereto, shall not be discharged or extinguished. For the purposes of determining the amount of interest on Variable Rate Bonds whether discharged and satisfied under the provi- sions of subsections (a), (b) and (c) above, the amount required for the interest thereon shall be calculated at the Maximum Interest Rate permitted by the terms of the provisions which authorized the issu- ance of such Variable Rate Bonds. Upon such payment or deposit in the amount and manner pro- vided in this Section 4.E, the Bonds shall no longer be deemed to be Outstanding for the purposes of this Resolution and all liability of the City with respect to such Bonds shall cease, terminate and be completely discharged and extinguished, and the Holders thereof shall be entitled for payment solely out of the moneys or securities so deposited. In the case of Bonds which by their terms may be redeemed prior to their stated maturity, the City shall give the Registrar, in form satisfactory to the Registrar, irrevocable instructions: -75- Res. No. 98-9] (i) stating the date when the principal of each such Bond is to be,paid, whether at maturity or on a redemption date; (ii) requiring the Registrar to.call for redemption pursuant to the terms of such Bonds any Bonds to be redeemed prior to maturity pursuant to (i) hereof; and (iii) requiring the Registrar to mail, as soon as practicable, a notice to the owners of such Bonds that the deposit required by this Section 4.E has been made and that such Bonds are deemed to have been paid in accordance with this Section 4.E and stating the maturity or redemption date upon which money is to be available for the payment of the principal or redemption price, if applicable, on such Bonds as specified in (i) hereof. Notwithstanding the foregoing, the discharge and satisfaction of the Bonds shall not be conditioned on the giving of such notices. Notwithstanding anything contained in this Section 4.E to the contrary, the covenants, liens and pledges contained in this Resolution shall not be fully discharged and satisfied until all obligations owed to the provider(s) of the Reserve Account Credit Facility Substitutes have been satisfied. F. ISSUANCE OF OTHER OBLIGATIONS PAYABLE FROM THE UTILITIES TAX PROCEEDS. The City will not issue any other obliga- tions, except upon the conditions and in the manner provided herein, payable from the Utilities Tax proceeds nor voluntarily create or -76- Res. No. 98-~] cause to be created any debt, lien, pledge, assignment, encumbrance or any other charge having priority over or being on a parity with the lien of the Bonds issued pursuant to this Resolution and the interest thereon upon any of the Pledged Revenues. Any obligations issued by the City other than the Bonds authorized by this Resolution and any pari passu additional Bonds issued under the terms, restric- tions and conditions contained in this Resolution shall contain an express statement that such obligations are junior, inferior and sub- ordinate in all respects to the Bonds issued pursuant to this Resolution as to lien on and source and security for payment from the Pledged Revenues and in all other respects. G. ISSUANCE OF PARI PASSU ADDITIONAL BONDS. N o p a r i passu additional Bonds, as in this subsection defined, payable pari passu with Bonds issued pursuant to this Resolution shall be issued after the issuance of the 1991 Bonds, except upon the conditions and in the manner herein provided. No such pari passu additional Bonds shall be issued unless the following conditions are complied with: (1) 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 this Resolution and any supplemental resolu- tions hereafter adopted for the issuance of pari passu additional Bonds and has complied with the covenants and provisions of this Resolution, and any supplemental -77- PCS. NO. ~$-93 resolutions hereafter adopted for the issuance of pari passu additional Bonds. (2) 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 pari passu additional Bonds, as evidenced by a certificate exe- cuted 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 Requirement on (1) the Bonds originally issued pursuant to this Resolution then Outstanding, (2) any pari passu additional Bonds theretofore issued and then Outstanding, and (3) the pari passu additional Bonds then proposed to be issued; provided that for the purpose of determining the Maximum Annual Debt Service Requirement under this Section, the interest rate on Variable Rate Bonds then Outstanding shall be the greater of (i) the average daily interest rate on such Variable Rate Bonds during the preceding Fiscal Year or (ii) the actual rate of interest applicable to such Variable Rate Bonds on the date of issuance of such Variable Rate Bonds; and provided, fur- ther, that if pari passu additional Variable Rate Bonds are 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 -78- Res. No. 98-9! month preceding the date of issuance of such Variable Rate Bonds, or if that index is no longer published, the inter- est 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 pari passu additional Bonds shall have, by amendment or supplement to the Utilities Tax Ordinance, increased the Utilities Tax to be collected, the Utilities Tax proceeds for the twelve (12) consecutive months immediately preceding the issuance of the pari passu additional Bonds 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. (3) In the event any pari passu additional Bonds are issued for the purpose of refunding any Bonds then Outstanding, the condition of (2) above shall not apply, provided that the issuance of such pari passu additional Bonds shall result in a reduction or shall not increase the annual debt service paymgnts over the life of the Bonds so refunded. The term "pari passu additional Bonds," as used in this subsection, shall be deemed to mean additional obligations evidenced by Bonds or other form of indebtedness permitted under the Act issued under the provisions and within the limitations of this subsection -79- Res ~ No. ?~-%~.] payable from the proceeds of the Utilities Tax deposited in the Sinking Fund pari 9assu with Bonds originally authorized and issued pursuant to this Resolution. Such Bonds shall be deemed to have been issued pursuant to this Resolution, the same as the Bonds originally authorized and issued pursuant to this Resolution, and all of the covenants and other provisions of this Resolution (except as to any Debt Service Reserve Account established for any Series of Bonds and as to details of such Bonds evidencing such pari passu additional obligations inconsistent therewith) shall be for the equal benefit, protection and security of the Holders of any Bonds originally autho- rized and issued pursuant to this Resolution and the holders of any Bonds evidencing pari passu additional obligations subsequently issued within the limitations of and in compliance with this subsection. All of such Bonds, regardless of the time or times of their issuance shall rank equally with respect to their lien on the Pledged Revenues and their sources and security for payment therefrom without preference of any Bonds, over any other. The term "pari passu additional Bonds," as used in this subsection, shall not be deemed to include bonds, notes, certificates or other obligations subsequently issued, the lien of which on the Revenues is subject to the prior and superior lien on the Pledged Revenues for the payment of Bonds issued pursuant to this Resolution, as provided in Article III, Section 4.F, of this Resolution, and the City shall not issue any obligations whatsoever payable from the Pledged Revenues, which rank equally as to lien on and source and -80- Res. No. 78-9! security for their payment from such Pledged Revenues with Bonds issued pursuant t= this Resolution, except in the manner and under the conditions provided in this subsection. In the event that the total amount of the 1991 Bonds herein authorized to be issued are not issued simultaneously but from time to time, such 1991 Bonds which are subsequently issued from time to time shall not be subject to the restrictions, conditions and limita- tions as to the issuance of pari passu additional Bonds, as provided in this Section 4.G, provided that such Bonds which are subsequently issued shall be issued within six (6) months from the date the of the 1991 Bonds originally authorized hereunder are issued. H. REMEDIES. Any Holder of Bonds issued under the provi- sions of this Resolution, or any trustee acting for such Bondholders in the manner hereinafter provided, may either at law or in equity, by suit, action, mandamus or other proceedings in any court of compe- tent jurisdiction, protect and enforce any and all rights under the laws of the State of Florida, or granted and contained in this Resolution, and may enforce and compel the performance of all duties required by this Resolution, or by any applicable statutes to be per- formed by the City or by any officer thereof, including the fixing, charging and collecting of the proceeds of the Utilities Tax. In the event that default shall be made in the payment of the interest on or the principal of any of the Bonds issued pursuant to this Resolution, as the same shall become due, or in the making of the payments into any reserve or sinking fund or any other payments -81- Res. No. 98-97_ required to be made by this Resolution, or in the event that the City or any officer, agent or employee thereof shall fail or refuse to comply with the provisions of this Resolution, or shall default in any covenant made herein, and in the further event that any such default shall continue for a period of sixty (60) days, any Holder of such Bonds, or any trustee appointed to represent Bondholders as hereinafter provided, shall be entitled as of right to the appoint- ment of a receiver of the proceeds of the Utilities Tax in an appro- priate Judicial proceeding in a court of competent jurisdiction, whether or not such Holder or trustee is also seeking or shall have sought to enforce any other right or exercise any other remedy in connection with Bonds issued pursuant to this Resolution. The receiver so appointed shall forthwith, directly or by his agents and attorneys, in the name of the City shall exercise all the rights and powers of the City with respect to the Utilities Tax as the City itself might do. Such receiver shall levy, collect and receive all of the proceeds of the Utilities Tax in the manner pro- vided in the Utilities Tax Ordinance, where applicable, and this Resolution, and comply under the jurisdiction of the court appointing such receiver, with all of the provisions of this Resolution. Whenever all that is due upon Bonds issued pursuant to this Resolution, and interest thereon, and under any covenants of this Resolution, for reserve, sinking fund or other funds, and upon any other obligations and interest thereon having a charge, lien or encumbrance upon the Pledged Revenues shall have been paid and made -82- Res. No. ~8-91 good, and all defaults under the provisions of this Resolution, shall have been cured anc~made good, the right to levy, collect and receive the proceeds of the Utilities Tax shall be transferred to the City upon the entry of'an order of the court to that effect. Upon any subsequent default, any Holder of Bonds issued pursuant to this Resolution, or any trustee appointed for Bondholders as hereinafter provided, shall have the right to secure the further appointment of a receiver upon any such subsequent default. Such receiver shall in the performance of the powers here- inabove conferred upon him be under the direction and supervision of the court making such appointment, shall at all times be subject to the orders and decrees of such court and may be removed thereby and a successor receiver appointed in the discretion of such court. Nothing herein contained shall limit or restrict the jurisdiction of such court to enter such other and further orders and decrees as such court may deem necessary or appropriate for the exercise by the receiver of any function not specifically set forth herein. The Holder or Holders of Bonds in an aggregate principal amount of not less than fifty-one per centum (51%) of Bonds issued under this Resolution then Outstanding may by a duly executed certif- icate in writing appoint a trustee for Holders of Bonds issued pursu- ant to this Resolution, with authority to represent such Bondholders in any legal proceedings for the enforcement and protection of the rights of such Bondholders. Such certificate shall be. executed by -83- Res. No. such Bondholders or their duly authorized attorneys or representatives, and shall be filed in the office of the City Clerk. Any exercise of a remedy set forth in this Section 4.H shall be subject to the consent of the Credit Facility Issuer, if any, and the Credit Facility Issuer shall have the right, acting alone, to exercise said remedies as long as it has not defaulted in its obligations under its Credit Facility. If there are more than one Credit' Facility Issuer providing Credit Facilities for the Bonds, only the consent of the Credit Facility Issuers providing Credit Facilities for more than fifty percent (50%) of the Bonds Outstanding shall be required. I. ENFORCEMENT OF COLLECTIONS. The City will diligently enforce and collect the Utilities Tax and take all steps, actions and proceedings reasonably necessary for the enforcement and collection of the Utilities Tax which shall become delinquent to the full extent permitted or authorized by the laws of the State of Florida. ARTICLE IV MISCELLANEOUS PROVISIONS SECTION 1. MODIFICATION OR AMEN-~. Except as otherwise provided in the second paragraph hereof, no material modification or amendment of this Resolution, or of any resolution amendatory thereof or supplemental thereto, may be made without the consent in writing of the Holders of two-thirds or more in principal amount of the Bonds then Outstanding; provided, however, that no modification or -84- Res- No. 98-91 amendment shall permit a change in the maturity of such Bonds or a reduction in the w-ate of interest thereon, or affecting the uncondi- tional promise of the City to levy and collect the Utilities Tax or to pay the interest of and principal on the Bonds, as the same mature or become due, from the proceeds of the Utilities Tax or reduce the percentage of Holders of Bonds required above for such modification or amendments, without the consent of the Holders of all the Bonds. This Resolution may be amended, changed, modified and altered without the consent of the Owners of Bonds, (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 Owners, (iii) to implement a Credit Facility or a Reserve Account Credit Facility Substitute, (iv) to maintain the exclusion of interest on the Bonds from gross income for Federal income tax purposes, (v) to implement or discontinue a Book-Entry System, or (vi) to secure or maintain a rating on the Bonds. For purposes of this Section I, to the extent any Series of the Bonds are secured by a Credit Facility and such Bonds are then rated in as high a rating category in which such Bonds was rated at the time of initial issuance and delivery thereof, by any Rating Agency or Agencies rating such Series of Bonds, then the consent of the Credit Facility Issuer shall constitute the consent of the Holders of such Series of Bonds to the extent the terms and provisions of the commitment of the Credit Facility Issuer so -85- Pes. No. 98-9! provide; and further, that such Credit Facility Issuer is not in default under its'Credit Facility. SECTION 2. SEVERABILITY OF INV~,~D 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 seDarate 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 Bonds. SECTION 3. SALE OF BONDS. The Bonds shall be issued and sold at one time or from time to time, in such manner and at such price or prices consistent with the provisions of the Act and the requirements of this Resolution as the Commission shall hereafter determine by subsequent proceedings. SECTION 4. BOND ANTICIPATION NOTES. The City may, if it determines it to be in its best financial interest, issue its bond anticipation notes in order to temporarily finance the costs of a municipal capital project or improvement as provided in this Resolution. The City shall by proper proceedings authorize the issu- ance and establish the details of such bond anticipation notes pursu- ant to the provisions of Section 215.431, Florida Statutes, as amended. In connection with such bond anticipation notes, the City is hereby authorized to enter into line of credit agreements, loan -86- Pes. No. 9~-91 agreements or similar arrangements (collectively referred to as "Financing Agreements") with banks or similar financial institutions for the purpose of financing the costs of a capital project or improvement permitted under the Act. The City is authorized to issue one or more bond anticipation notes to such banks or financial insti- tutions to evidence its obligation to repay loans made under such Financing Agreements. SECTION 5. REPEALER.' That all resolutions or riders or parts thereof in conflict herewith are to the extent of such conflict hereby repealed. SECTION 6. CREDIT FACILITY ISSUER; DEFAULT. Notwithstanding any of the provisions of this Resolution to the contrary, all of the rights of any Credit Facility Issuer, granted herein shall be null and void if the Credit Facility Issuer is in default under its Credit Facility. SECTION 7. V~T.?DATION. That the City Attorney shall, if directed by the Commission, take appropriate proceedings in the Circuit Court of the Fifteenth Judicial Circuit of Florida in and for Palm Beach County for the validation of any Series of Bonds, and the Mayor and City Clerk are hereby authorized to sign any pleadings in such proceedings for and on behalf of the City. -$7- Pes. No. EFFECTIVE DATE. This Resolution shall take effect immedi- ately upon its passage. PASSED AND ADOPTED in regular session on this the 3rd day of December, 1991. CITY OF DELRAY BEACH, FLORIDA By: ~ Attest: J City ~erk ' Date of Adoption: December 3, 1991 -oe- Pes. No. -01