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Res 99-85 Resolution No. 99-85 A RESOLUTION, OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIBA, AUTHORI~.ING THE ISSUANCE OF ITS CITY OF DELRAY BEACH, FLORIDA, INDUSTRIAL DEVELOPMENT REVENUE BOND SERIES 1985 (THE SENECA GROUP-PARK TEN PROJECT) IN AN AMOUI~ NOT TO EXCEED $5,000,000 TO FINANCE THE COST OF THE ACQUISITION, CONSTRUCTION AND EQUIPPING OF A WAREHOUSE, OFFICE AND SHOWROOM FACILITY; PRESCRIBING THE FORM OF THE TRUST INDENTURE TO SECURE SAID BONDS AND AUTHORIZING THE EXECUTION THEREOF; PRESCRIBING THE FORM OF THE LOAN, MORTGAGE AND SECURITY AGREEMENT AND AUTHORIZING THE EXECUTION THEREOF; APPROVING THE FORM OF THE PERSONAL GUARANTY AGREEMENT RELATED TO SAID BONDS; PROVIDING FOR THE RIGHTS OF THE HOLDER OF SAID BONDS; AUTHORIZING A NEGOTIATED SALE OF SAID BONDS; PRESCRIBING THE FORM OF THE BOND PURCHASE AGREEMENT AND AUTHORIZING THE EXECUTION THEREOF; AND MAKING CERTAIN OTHER COVENANTS AND AGREEMENTS IN CONNECTION WITH THE ISSUANCE OF SUCH BONDS, AS AMENDED, AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council of the City of' Delray Beach, Florida, adopted on September 10, 1985 Resolution No. 76-85; and WHEREAS, such resolution authorized the issuance in an amount not to exceed $5,000,000 of industrial development revenue bonds to finance the Cost of the Project; WHEREAS, it is now necessary to take further action in con- nection with the issuance of the industrial development revenue bonds: BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA.' SECTION 1. AUTHORITY FOR THIS RESOLUTION. This resolu- tion hereinafter called "instrument", is adopted pursuant to the pro- visions of Chapter 159, Part II, Florida Statutes (Chapter 69-104 of the Laws of Florida 1969, as amended and supplemented), and other applicable provisions of law. SBCTION 2. DEFINITIONS. Unless the context otherwise requires, the terms defined in this section shall have the meanings specified in this section. Words importing singular number shall include the plural number in each case and vice versa, and words import{ng persons shall include firms, corporations and other enti~ ties or associations. A. "Act" shall mean the Florida Industrial Development Financing Act, Part II of Chapter 159, Florida Statutes (Chapter 69-104 of the Laws of Florida 1969, as amended and supplemented). B. "Ag,ee~entI shall mean the agreement attached hereto as Exhibit A and incorporated herein by reference, entitled "Loan, Mortgage and Security Agreement", to be executed between the Issuer and the Company and any and all modifications, alterations, amend- ments and supplements thereto made in accordance with the Agreement and the Trust Indenture. C. "Bond Purchase Agreement" shall mean the agreement attached hereto as Exhibit D and incorporated herein by reference, entitled "Bond Purchase Agreement," to be executed by and between the Issuer and Landmark First National Bank of Fort Lauderdale, as Purchaser, as the same may be amended or supplemented pursuant to the terms thereof. D. "Bonds" shall mean the Industrial Development Revenue Bond, 1985 Series (The Seneca Group-Park Ten Project), in the aggre- gate principal amount not to exceed $5,000,000, herein authorized to be issued by the Issuer under the terms, conditions and limitations contained herein. E. "Building" when used in connection with the Project shall have the same meaning as provided in the Agreement. F. "Company" shall mean the The Seneca Group, a general partnership organized under the laws of the State of Florida, or any partnership or corporation which is the surviving, resulting or -2- Reso. No. 99-85 transferee partnership or corporation in any merger, consolidation or transfer of assets permitted under the Agreement and shall also mean, unless the context otherwise requires, an assignee of the Agreement as permitted by the Agreement. G. 'C~st' or "Cost of the Project'. when used in connec- tion with the Project shall have the same meaning as provided in the Trust Indenture. H. 'Equipment' when used in connection with the Project shall have the same meaning provided in the Agreement. I. 'Guarantors" shall mean Donald V. Berlanti, Karen Berlanti, Joseph Carosella, Rosemarie Carosella, P~chard A. Berlanti, Carole Berlanti, Michael Bianchini and Marie Bianchini and who shall act as Guarantors, jointly and severally. J. 'Guaranty AgreeRent" shall mean the agre~aent attached hereto as Exhibit C and incorporated herein by reference, entitled "Personal Guaranty Agreement," to be executed by and between the Guarantors and the Trustee, and any and all modifications, alter- ations, amendments and supplements thereto made in accordance with the Guaranty Agreement, the Agreement and the ~.rust Indenture. K. "Issuer" shall mean the City of Delray Beach, Florida, a political subdivision of the State of Florida. L. 'Project" shall mean the warehouse, office and showroom facility, as more particularly described and defined in the Agreement. M. "Purchaser" shall mean Landmark First National Bank of Fort Lauderdale, whose principal office is located in Fort Lauderdale, Florida. N. "Trust Indenture' shall mean the indenture attached hereto as Exhibit B and incorporated herein by reference, entitled "Trust Indenture," to be executed by and among the Issuer and the Trustee, as amended or supplemented from time to time in accordance with the terms thereof. --3-- Reso. No. 99-85 O. "Trustee" shall mean Landmark First National Bank of Fort Lauderdale, or any successor trustee serving as such pursuant to the Indenture and any separate or co-trustee serving as such thereunder. SECTION 3. FINDI~. It is hereby found, determined and declared that.. A. The Issuer is authorized and empowered by the Act to enter into transactions such as those contemplated by the Agreement and the Trust Indenture and to perform fully its obligations thereun- der in order to promote the economy of the Issuer and the State of Florida. B. The Project is appropriate to the needs and circum- stances of the Issuer and shall make a significant contribution to the economic growth of the area within the jurisdiction of the City, shall provide improvements and facilities which will permit the Company to establish operations within such area, shall provide and preserve gainful employment, and shall serve a public purpose by .advancing the economic prosperity, the public health and the general welfare of the State of Florida and its people. C. Adequate provision is made under the provisions of the Agreement for the operation, repair and maintenance of the Project at the expense of the Company, and under the Agreement and the Trust Indenture for the payment of the principal of, premium, if any, and interest on the Bonds herein authorized. D. The principal of, premium, if any, and interest on the Bonds and all required payments shall be payable solely from the rev- enues and receipts derived by the Issuer from or in connection with the Project, including payments under the Agreement. The Bonds are to be additionally secured by (i) the assignment to the Trustee of a mortgage and security interest in the Project upon the terms and conditions detailed in the Agreement and the .xrust Indenture and --4-- Reso. No. 99-85 (ii) the Guaranty Agreement. The Issuer shall never be required to levy ad valorem taxes on any property within its jurisdiction or to utilize any moneys or funds it or the Trustee shall receive from any source other than the Agreement and the Guaranty Agreement to pay the principal of, premium, if any, anu interest on the obligations or to make any other payments required by the Trust Indenture. E. The proceeds to be derived by the Issuer from the sale of the Bonds will be (i) loaned to the Company under the Agreement to finance the costs of the Project and (ii) used to pay the costs of issuance of the Bonds. The payments to be made by the Company under the Agreement will be sufficient to pay the principal of, premium, if · any, and interest on the Bonds, as the same become due, and to make all debt service or other payments required by this instrument. F. The Company is financially responsible and fully capable and willing to fulfill its obligations under the Agreement, including the obligations to make payments in amounts and at times required, to operate, repair and maintain the Project at its own expense and to serve the purposes of the Act and other responsibili- ties imposed by the Agreement. In making the above determination the Issuer has considered the factors provided in Section 159.29(2) of the Act. G. The Issuer will be able to satisfactorily cope with the impact of the Project and will be able to provide, or cause to be provided when needed, the public facilities, including utilities and public services, that will be necessary for the construction, opera- tion, repair and maintenance of the Project and on account of any increases in population or other circumstances resulting therefrom. H. The costs of the Project to be paid from proceeds of the Bonds shall be costs of the Project within the meaning of the Act. -5- Reso. No. 99-85 I. Upon the issuance of the P.~nds, the interest thereon will be exempt from federal income taxation under existing laws of the United States of America, as required by the Act. SECTION 4. AI]THORIZATION OF T~..E LOAN OF THE PI~OCEED~ (~ THE BOND~. There is hereby authorized the loan of the proceeds of the Bonds, pursuant to the Agre~ent, to the Company for the acquisi- tion, construction and equipping of the Project. SECTION 5. AI~THORIZATION OF THE B(H~M~. Subject and pur- suant to the provisions hereof, the Bonds are authorized to be issued in the aggregate principal amount of not exceeding FIVE MILLION DOLLARS ($5,000,000); all for the purpose of paying the Cost of the Project. The Bonds will be dated, will be stated to mature or be payable in the years and in the amounts and in such manner, will be s.ubject to the right of redemption prior to maturity at the prices and dates, and upon the terms and conditions, and will bear interest from their date until their payment at such rate or rates, not exceeding the legal rate, all as provided in the Trust Indenture attached hereto as Exhibit B and made a part hereof as provided in Section 7 below. SECTION 6. APPROVA~ OF THE FORM AND AUTHORIZATION OF ~~ION OF AGREEMENT. The City hereby authorizes and directs its Mayor to execute, and its Clerk to attest under the corporate seal of the Issuer, the Agreement and to deliver the Agreement to the Company, and does hereby authorize and direct the execution, sealing and delivery of the Agreement. All of the provisions of the Agreement, when executed and delivered by the City as authorized h.erein and when duly authorized, executed and delivered by the Company, shall be deemed to be a part of this instrument as fully and to the same extent as if incorporated verbatim herein, and the --6-- Reso. No. 99-85 Agreement shall ~. in substantially the for- of the Agreement attached hereto as Exhibit A with such changes, amendments, modifica- tions, omissions and additions, including the date of such Agreement, as may be approved by the City. Execution by said Mayor of the Agreement shall be deemed to be conclusive evidence of approval of such changes. SECTION 7. APPROVAL OF THE FORll A~D AUTHORISATION OF EXE~DTXON OF TRUST INDENTURE. As security for the payment of the principal of, premium, if any, and interest on the Bonds, in accor- dance with the terms thereof, the City hereby authorizes and directs its Mayor to execute, and its Clerk to attest under the corporate seal of the Issuer, the Trust Indenture and to deliver the Trust Indenture to the Trustee and does hereby authorize and direct the execution, sealing and delivery of the Trust Indenture. The Trust Indenture specifies the terms, conditions, covenants, rights, obliga- tions, duties and agreements to and for the benefit of the holders of the Bonds, the Issuer, the Company, and the Trustee. Ail of the pro- visions of the Trust Indenture when executed and delivered by the City as authorized herein and when duly authorized, executed and delivered by the Trustee shall be deemed to be a part of this instru- ment as fully and to the same extent as if incorporated verbatim herein, and the Trust Indenture shall be in substantially the form of the Trust Indenture attached hereto as Exhibit B with such changes, amen~ents, modifications, omissions and additions, including the date of such Trust Indenture, as may be approved by said City. Execution by said Mayor of the Trust Indenture shall be deemed to be conclusive evidence of approval of such changes. -7- Reso. No. 99-85 · ~TION 8. BONI~" TO BE GUARANTEED; APPROVAL (? GUARANTY AGio The Issuer hereby conditions the issuance and sale of the Bonds upon the guaranty of the Guarantors to the Trustee, for the benefit of the holder of the Bonds, of the payment of the principal of, premium, if any, and interest on the Bonds as provid=d in the Guaranty Agreement. Ail of the provisions of the Guaranty Agreenent, when duly executed and delivered by the Guarantors and the Trustee, shalI be deemed to be a part of this instrument as fully and to the same extent as if incorporated verbatim herein. The Guaranty Agreement shall be in substantially the form of the Guaranty Agreement attached hereto as Exhibit C and such Guaranty Agreement is hereby approved. SECTION 9. APPROVAL OF THE FORM AND AUTHORIZATION OF EXECIFFION OF BOND PUR(~tASE AGREF~q~T. The City hereby authorizes and directs its Mayor to execute, and its Clerk to attest under the corporate seal of the Issuer, the Bond Purchase Agreement and to deliver the Bond Purchase Agreement to Landmark First National Bank of Fort Lauderdale, the Purchaser, and does hereby authorize and direct the execution, sealing and delivery of the Bond Purchase Agreement. All of the provisions of the Bond Purchase Agreement, when executed and delivered by the City as authorized herein and when duly authorized, executed and delivered by the Purchaser, shall be deemed to be a part of this instrument as fully and to the same extent as if incorporated verbatim herein, and the Bond Purchase Agreement shall be in substantially the form of the Bond Purchase Agreement attached hereto as Exhibit D with such changes, amendments, modifications, omissions and additions, including the date of such Bond Purchase Agreement, as may be approved by the City. Execution by said Mayor of the Bond Purchase Agreement shall be deemed to be conclusive evidence of approval of such changes. -8- Reso. No. 99-85 S~TlOll 10. DESIGNATION OF TRUSTEB. L a n d m a r k F i r s ~ National Bank of Fort Lauderdale, is hereby designated Trustee for the Bonds under the Trust Indenture. SECTION 11. EXECUTION ~ DELIVER! OF THE BO~. The Bonds shall be executed in the manner provided in the Trust Indenture and shall be delivered to the Trustee for proper authentication and delivery upon delivery to the Trustee of the documents required by the Trust Indenture. SECTION 12. NO PERSONAL LIABILITY. No covenant, stipula- tion, obligation or agreement herein contained or contained in the Agreement or the Trust Indenture shall be deemed to be a covenant, stipulation, obligation or agreement of any member, agent or employee of the City in his individual capacity, and neither the members of the City Council nor any official executing the Bonds shall be liable personally thereon or be subject to any personal liability or accountability by reason of the issuance thereof. SECTION 13. NO T~I~D PARTY BENEFICIARIES. E x c e p t a s herein or in the Agreement or the Trust Indenture otherwise expressly provided, nothing in this instrument or in the Agreement, the Guaranty Agreement or the Trust Indenture, expressed or implied, is intended or shall be construed to confer upon any person or firm or corporation other than the Issuer, the Company, the holders of the Bonds, and the Trustee any right, remedy or claim, legal or equita- ble, under and by reason of this resolution or any provision hereof or of the Agreement or the Trust Indenture, all provisions thereof being intended to be and being for the sole and exclusive benefit of the Issuer, the Company, the holders from time to time of the Bonds and the Trustee. -9- Reso. No. 99-85 ~TION 14. COVEHANTS OF THE ~. A 1 1 a c t s , conditions and things relating to the passage of this instrument, to the issuance of the Bonds, and to the execution of the Agreement and the Trust Indenture, required by the Constitution or laws of the Stat~ of Florida to happen, exist and be performed precedent to and in the passage of this instrument, and precedent to the issuance of the Bonds, and precedent to the execution and delivery of the Agreement and the Trust Indenture have happened, exist and have been performed as so required. SECTION 15. GENEP~ A~THORIT~. The Mayor, the Members of -the City Council and its officers, attorneys, City Clerk or other agents or 'employees are hereby authorized to do all acts aD~] things required of them by this instrument, the Bonds, the Agreement, the Trust Indenture, the Guaranty Agreement and the Bond Purchase Agreement, and to do all acts and things which are desirable and con- sistent with the requirements hereof or of such Bonds, the Agreement, the Trust Indenture, the Guaranty Agreement and the Bond Purchase Agreement for the full, punctual and complete performance of all the terms, covenants and agreements contained herein or in the Bonds, the Agreement, the Trust Indenture, the Guaranty Agreement and the Bond Purchase Agreement. SECTION 16. VALIDATION NOT A[~i~ORIZED. The City does not authorize the Bonds to be validated pursuant to Florida law. SECTION 17. N~C, OTIATED SA~E OF BONDS A~THORIgED. A negotiated sale of the Bonds is hereby authorized and found to be required and necessary and in the best interest of the Issuer for the following reasons: the Bonds will be special and limited obligations of the Issuer payable solely out of moneys derived by the Issuer frem the Project and will be secured and backed solely by the Agreement, -10- Reso. No. 99-85 including the mortgage and security interest on the Project and the Guaranty Agreement; the cost of issuance of the Bonds, which must be borne directly or indirectly by the Company, would most likely be greater if the Bonds are sold at public sale by competitive bids than if the Bonds are sold at negotiated sale, and there is no basis for any expectation that the terms and conditions of a sale of the Bonds at public sale by competitive bids would be any more favorable than at negotiated sale; industrial development revenue bonds having the characteristics of the Bonds are typically sold at negotiated sale under the prevailing market conditions; the Company has indicated that its willingness to proceed with the acquisition, construction and financing of the Project is predicated upon the City's approval of a negotiated sale of the Bonds on terms satisfactory to the Company; and authorization of a negotiated sale of the Bonds is nec- essary in order to serve the purposes of the Act. SEL~ION 18. NOTICE OF SAI~. The Issuer hereby approves and authorizes the execution and filing with the Division of Bond Finance, Department of General Services of the State of Florida, of a notice of sale of the Bonds sufficient to comply with the provisions of ~218.38, Florida Statutes, as amended. SECTION 19. SEVERABILIT"f OF I~VALID PROVISIONS. If any one or more of the covenants, agreements or provisions herein con- tained shall be held contrary to any express provision of law or con- trary 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 separable from the remaining covenants, agreements or provisions and shall in no way affect the validity of any of the other provisions hereof or of the Bonds issued hereunder. -ll- Reso. No. 99-85 ~TION 29. CODE CO~P~IAN~E. This Resolution and the actions of this City Council are being taken pursuant to Section 103(k) of the Internal Revenue Lode of 1954, as amended, which imposes a public approval requirement on the issuance of certain bonds. The 'public he, ring required by said Section 103(k) took place on December 23, 1985 at 9200 a.m.; this Resolution has been consid- ered and adopted subsequent to that hearing. SECTION 21. REPEA~I~ CLA~. Ail resolutions or parts thereof of the City Council in conflict with the provisions herein contained are, to the extent of such conflict, hereby superseded and repealed. SECTION 22. EFFECT17~E DATE. This instrument shall take effect immediately upon its adoption. IN WITNESS WHEREOF, the parties hereto have entered into this Agreement by their officers thereunder duly authorized as of this 23rd day of December 1985. Mayor of the City of Delray Beach, Florida Attest: C~rk of the City of Delray Beach, Florida -12- Reso. No. 99-85